Welcome to the Roundup, where we correct, clarify and comment on media reports of family law, explain and comment on published family court judgments, and highlight other transparency news.
MEDIA COVERAGE OF FAMILY LAW MATTERS
The Standard (12 May 2024) reported that Nearly 1,000 parents abducted their own children in last five years, saying ‘lawyers warn of a “perfect storm” in the family courts and fears that chronic delays are fuelling a rising number of illegal acts’, and that ‘parents who are frustrated with stalled judicial proceedings are “taking matters into their own hands”.’
The Independent (12 May 2024) reported that Tory MP abused by ex-husband backs report urging law change on parental contact. This was about the Conservative MP Kate Kniveton, who was found by the family court to be a victim of domestic abuse by her ex-husband Andrew Griffiths, lending her support to a report by Right to Equality calling for the presumption of contact between children and abusive parents to be ‘fully and finally removed’. A government review on the ending of the presumption was expected to report this summer, but in view of the election that might be optimistic.
Grazia (14 May 2024) had a story Mel B: ‘The Relationship Is Over But The Control Continues’ about the singer Melanie Brown having partnered with Women’s Aid to launch a petition calling for judges to receive mandatory training from experts who work with women and children facing domestic abuse. Discussing her own experience of both American and British family courts, she says:
‘The family courts are not safe for survivors of domestic abuse and that needs to change. I’m also asking courts not to assume contact with children should be granted to an ex-partner when the relationship has been abusive.’
Community Care (16 May 2024) had a piece by social worker Polly Baynes on Media reporting of the family courts: a social worker’s reflections, discussing the implications of the Reporting Pilot, and the general trend towards greater transparency, for social workers. She notes that ‘For many social workers, attending court is one of the most stressful parts aspects of their job even without the prospect of media criticism’, but concludes that
‘Sensitive reporting has the potential to reveal the complexity of the work and can highlight what is going well as well as empowering families with accurate information and providing accountability in line with social work values.’
The Guardian (18 May 2024) had a piece on How can a child in care cost £281,000 a year? Ask the wealth funds that have councils over a barrel, in which George Monbiot explained how ‘Children’s residential care, foster care and special schools have steadily been taken over — with the blessing of successive governments — by profit-making companies’. Many of those profit-making companies, taking fees from cash-strapped local authorites, turned out to be owned by venture capitalists and sovereign wealth funds while others were ‘highly opaque, registered in overseas secrecy regimes’.
The BBC (22 May 2024) reported that Children detained under little-known orders are speaking out after turning 18. This concerned children subject to deprivation of liberty (DoL) orders imposed by family courts to keep them safe as a last resort when secure accommodation or placements are not immediately available. (See also File on Four below.) The report featured the personal experiences of individual children affected, including Zarha Codsi, whose story was able to be told thanks to a judgment of Mr Justice MacDonald which has now been published: Berg & Anor v The London Borough of Tower Hamlets & Ors [2024] EWFC 92. That was a successful application by BBC reporters Sanchia Berg and Ashley John-John-Baptiste for permission to obtain transcripts and orders from hearings at East London Family Court, and to report the contents. Sanchia commented on X:
The Standard (22 May 2024) reported that Tower Hamlets council criticised by judge for supporting ‘rapist’ father in domestic abuse case, saying the judge (HHJ Reardon) had
‘sharply criticised a London council over its handling of a domestic abuse case in which a mother was found to have been raped twice. Instead, officials backed the couple’s three children staying with their father at their family home, despite the court finding he had committed physical abuse against them as well.’
We infer that by ‘officials’ they mean both social workers and those managing them. The report explained that the judge had overruled the local authority’s desire to remain anonymous and allowed them to be named, ‘so that it could be held “accountable” over its “dangerous” approach’. The report concludes by saying ‘Judge Reardon declined to publish the judgement in full, citing the children’s right to privacy.’ While no citation or link is provided by The Standard, the judgment has been published as SR v RT [2024] EWFC 103 (B), with the family (but not the local authority) anonymised.
Local Government Lawyer (23 May 2024) reported the statement by the President, Sir Andrew McFarlane in a speech at the POTATO (Parents of Traumatised Adopted Teens Organisation) conference on 17 May, that Letterbox contact can no longer be seen as appropriate regime for most cases, and should ‘certainly not be the norm’. It said the President had outlined the need for a ‘new approach’ to post-adoption contact, noting that letterbox contact (which typically involves the adopters and the birth parents communicating with each other by a short letter or report once each year) can ‘no longer be seen as the appropriate regime for most cases’. The full speech, Adapting Adoption to the Modern World: Part Two is available via the Judiciary website.
The BBC (24 May 2024) reported on Jade’s Law passed to limit rights of killer parents, explaining a provision in the Victims and Prisoners Act 2024, which managed to complete its passage through Parliament in the final ‘washup’ before being dissolved on 28 May 2024 pending the general election. ‘Jade’s law’ is designed to ensure that parents who are convicted of having killed a partner with whom they have children will have their parental rights over those children automatically suspended on sentencing. (The relevant provision is clause 16 in the draft Bill, but the numbering may be different in the version that finally passed, which is not available yet).
[The government had announced, on 10 May, that they had tabled an amendment to the Criminal Justice Bill which would have had a similar effect on parents who had been found guilty of raping a child, but that Bill was lost in the washup, so its fate depends on whether and how soon the incoming government revives it. We reported on similar amendments proposed by Labour figures such as Harriet Harman MP and Baroness Chakrabarti, among others, in our recently updated post ‘Paedophiles to be stripped of parental rights’? and other failed legislative amendments.
The BBC (24 May 2024) reported the successful appeal in a case where Judge orders child to see mum accused of sex abuse. The mother appears to have reported her ex-boyfriend for sexual abuse of her daughter, but police investigating images on her phone detected a deleted one which implicated her in abuse as well. Both were charged but neither has been tried yet. That was the context in which HHJ Greensmith decided to order some contact between mother and child. The Court of Appeal said he had made his decision ‘without any meaningful consideration of [the child’s] current welfare’. Though the report mentions a ‘written judgment’, no link or citation is provided. It appears to refer to the published case of Re T (Interim Care Order: Arrangements for Contact) [2024] EWCA Civ 469, in which the Court of Appeal described Judge Greensmith’s decision as ‘fundamentally flawed’.
The Law Society Gazette (24 May 2024) reported Man fails to end French civil partnership in England. This concerned a man born in England to a French father and English mother, but domiciled in France at the time he applied for the dissolution of his pacte civil de solidarité (PACS), a form of civil partnership under French law. His partner was a British citizen and their daughter had been born in England but they appeared to have settled in France. The claim that the English Family Court should have jurisdiction to hear the dissolution proceedings was rejected. Surprisingly for the Gazette, although the judge is named as Mr Justice Poole, there is no citation of, let alone link to, the judgment. It is V v W (Jurisdiction: Dissolution of Pacte Civil de Solidarite) [2024] EWFC 111.
Legal Futures (28 May 2024) reported that an Online portal fault allowed couples to divorce too early. Lord Bellamy, a justice minister, made a statement to Parliament shortly before it was dissolved, confirming that the new digital system introduced in April 2022 had allowed divorce applications to be made only a year after the date of marriage (instead of a year and a day) in cases between April and November 2022. ‘The error was rectified as soon as it came to light to prevent any future applications from members of the public being submitted early.’ Having reviewed all the 90,431 applications made in the relevant period, HMCTS had identified 67 cases as having been made too soon. ‘The judiciary is still considering how to deal with the cases and the divorce orders remain final until judges reach a decision, justice minister Lord Bellamy said.’ (The problem appears to have been caused by an error in the system rather than by the purely human error of applying on behalf the wrong client that occurred in Williams v Williams [2024] EWHC 733 (Fam) which we discussed in last month’s roundup.)
Written Advocacy – who is it for? (30 May 2024) was a guest post on this blog by Anna Yarde, a children barrister at Harcourt Chambers, suggesting ways for lawyers to present their arguments so they can be understood not just by the lawyers in the courtroom but also by vulnerable clients, children, and any journalists attempting to cover the case.
BROADCAST & AUDIO COVERAGE
File on Four (BBC radio 4, 22 May 2024) in an episode entitled Detained and Restrained: Britain’s Vulnerable Kids featured the personal stories of children restrained under deprivation of liberty (DoL) orders. It covers in more detail the same material about Zarha Codsi in the online report mentioned above, Children detained under little-known orders are speaking out after turning 18, based on court material obtained thanks to the decision of MacDonald J in Berg v London Borough of Tower Hamlets [2024] EWFC 92. It also includes an interview with Sir Andrew McFarlane P.
Tortoise (from 7 May 2024) has been podcasting Word for word: Trump on trial, a blow-by-blow account of the evidence given in the criminal trial in New York of once and future (possibly) president Donald Trump on 34 charges (for all of which he was convicted) of falsification of business records. The background and context of the trial are explained at the outset. The charges relate to the concealing of payments of ‘hush money’ to prevent the publication of a news story about Trump’s alleged relationship with a woman described as a porn star named Stormy Daniels. There are five episodes, best accessed via the Tortoise app.
BBC One ran a three part TV drama ‘Lost Boys and Fairies’, described as ‘the tender, glittering story of gay couple Gabriel and Andy’s journey to adoption, filled with humour, music, redemption and love’. Available on iplayer here.
LEGAL BLOGGING
No new posts this month, but we’re working on several cases. We have made one (unsuccessful) legal blogging attempt since our last roundup, but you will have to watch this space, as we have – unusually for us – made a follow up application, which we hope will lead to us being able to report something in due course. There is also a hearing to report on from mid May, but we’re still awaiting the Transparency Order from the court. We are also following two long running cases which we hope to be able to report on one day.
NEW JUDGMENTS OF INTEREST
Here are some other court judgments published this month. that weren’t featured in the media. as far as we know.
Re Billie (A Child) (Care and Placement) [2024] EWFC 106 (B)
This judgment is notable for its introduction. that sets out the whole of the judge’s decision in accessible language. This is best shown by a short extract –
I have decided that Billie will not get the care she should if she is with [her parents]. This is not because they do not love her or because they are not committed to her. It is because there are too many other things for them to deal with and this is complicated by the drinking and drugs.
I do not think it would be right for her to be in foster care for her whole childhood.
I have sadly decided I should make the order which plans an adoption of Billie.
It’s excellent to see this child-friendly approach by the judge, HHJ Willans in West London court.
Re J (Transgender: Puberty Blocker and Hormone Replacement Therapy) [2024] EWHC 922 (Fam)
This case was about the capacity of a 16-year-old to consent to receiving hormone treatment and whether the High Court should exercise its powers under the inherent jurisdiction and/or the Children Act 1989 to prevent further hormone treatment. The young person’s father had concerns about the particular service that was offering the treatment. The President of the Family Division declined to issue any general guidance on the topic, pending publication of the final Cass Review. As this has now been published, the issues may return for judicial attention in the future.
J & K v M [2024] EWHC 1156 (Fam)
This hearing followed a successful appeal by paternal grandparents against a family court decision that they would not be given an order for contact with a six-year-old. The case had been returned for a new hearing by Mrs Justice Lieven. The father was serving a 22-year prison sentence for murder and had a long history of other serious offences. For the first three years of her life, the child had extensive contact with the grandparents, but this broke down during the Covid pandemic and when the grandparents supported a contact application by the father. The successful appeal was on quite a technical point – late service of a statement by the mother and the failure of the judge to give the grandparents sufficient time to read this and an opportunity to respond. Lieven J however concluded that, given the history, it was not in the child’s welfare to spend time with the grandparents. The impact of their attitude on the mother and, through her, on the child, clearly outweighed any benefits to the child from contact. The judge was critical of the Cafcass report that implausibly suggested contact would be beneficial to the child’s identity. It was important to give the child and her mother the space to come to terms with the implications of the father’s offending and they also needed a break from the constant stress of litigation. The judge noted that the mother was disadvantaged by being a litigant in person whereas the grandparents had lawyers.
The Mother & Father v Shropshire Council & Another [2024] EWHC 1191 (Fam)
This is an interesting judgment from Mrs Justice Lieven allowing disabled parents to take their three year old child (who is living with them under a care order) on a short holiday to Spain. The holiday plan had been opposed by the local authority and the Cafcass guardian.
Re N (A Child) (Ukraine: Art. 13 (b)) (No. 2) [2024] EWHC 1282 (Fam)
We wrote about this case last month, when there’d been an earlier hearing about whether it was safe for a child subject to a parental dispute to return to Ukraine. He had expressed his wish to go back to his father there but his mother, in the UK, was resisting an application by the father under the Hague Convention. The judge has considered further evidence and concluded that the child would not be endangered if a return order was made, so that the case can now be heard in full in his country of habitual residence.
Re H and J (Placement Orders) [2024] EWCA Civ 429
This is a complicated case where there are five siblings now aged between five and 18. All the children had been removed from their parents in care proceedings and the youngest two were to be placed for adoption – but they all had a strong relationship with each other and a social work report recommended continuing contact between them. Many practical questions arose as to how this could be achieved. There’s a good deal of useful analysis and discussion in this judgment by Baker LJ about the boundaries between what a court can order regarding conditions on placement and adoption decisions and the local authority’s duties and responsibilities to each individual child.
Re D (Children: Interim Care Order: Hair Strand Testing) [2024] EWCA Civ 498
A Court of Appeal judgment on the vexed question of the science of hair strand testing – four children had been subject to tests that found they’d been exposed to a range of Class A drugs and a drug used to treat epilepsy (prescribed for one of the older children). However, on appeal by the kinship carers with whom the children had been living, these test results were found to be questionable. The legal threshold for an order for interim removal had not been met. Of significant concern to the Court of Appeal in this case was the lack of explanation to and involvement of the children in sudden decisions to remove them from their carers, although the oldest was 13 and the Cafcass guardian had found only three weeks earlier that the children were very happy there.
OTHER TRANSPARENCY etc NEWS
The Judiciary website issued an Update to Standard Orders announced by Mr Justice Peel, Judge-in-Charge of the Standard Orders. This new release is intended to address developments since May 2023 when the updated Standard Orders and House Rules were released after a comprehensive review. Recent changes include:
- Orders 1.1 (para 81), 1.2 (para 52), 7.0 (para 72) and 7.1 (para 7) requiring the parties to file a new Form FM5 pursuant to the Family Procedure (Amendment No 2) Rules 2023 (SI/2023/1324 of which the relevant parts came into force on 29 April 2024. Form FM5 has to be completed and exchanged by both parties before a first court hearing to explain why they did not reach agreement on child arrangements through e.g. mediation but had to carry on to court.
- recasting of the child arrangements order warnings and the confidentiality warnings to better reflect the provisions of (i) s12 of the Administration of Justice Act 1960 and (ii) s11I, s13 and s97 of the Children Act 1989.
Secret Justice: the system for closed proceedings is in melt-down, according to Angus McCullough KC on the on the UK Human Rights Blog. The controversial system for secret evidence and closed proceedings, designed to protect national security from the scrutiny of litigation, was set up under Part II of the Justice and Security Act 2013. It allows for security-cleared lawyers to represent the interests of individuals excluded from all or part of their own trial by reason of the closed procedure used to air secret evidence before the court — but not before the excluded parties. Special advocates are supposed to ensure that justice is done, and provide a modicum of independent scrutiny; but are not there to advise or communicate with the excluded parties. In view of the government’s continuing failure to provide proper support for this system, and its long delay in responding to a statutory review by Sir Duncan Ouseley, a group of 25 practising Special Advocates, including 16 King’s Counsel, recently declared that they would not accept any new appointments as Special Advocates whilst current defects in the system remain unaddressed. (See also: Joshua Rozenberg, Secret courts in crisis.) Just before the dissolution of Parliament, in the ‘wash-up’ period before the General Election, the Government belatedly published its response to the Ouseley report, but as McCullough says in a subsequent post, the response is a ‘profound disappointment’, which he blames in part on a lack of engagement with the advocates themselves. ‘The incoming Government, whatever its stripe, must address this as a priority, both as to implementation and re-visiting the recommendations that have currently been rejected.’
Garden Court Chambers issued a statement on 8 May 2024 saying they would not send pupils (trainee barristers) to Stratford Magistrates’ Court, following concerns about the excessive and intrusive personal searches of legal professionals there by security staff. This follows a letter sent in April from the London Criminal Courts Solicitors’ Association (LCCSA) raising concerns about the the ‘enhanced’ searching of Professional Users Access scheme (PUAS) members entering the court, and a subsequent allegation of sexual assault in one such case. The court is not alone in prompting complaints of obstructive or excessive behaviour by court security staff, and where this affects public observers or would-be observers it can also create a barrier to public participation in open justice.
Courtwatch London published their report ‘Why are you here?’ Open justice in London magistrates’ courts (May 2024) detailing many of the issues affecting or obstructing those attempting to access and observe what should be open court hearings. The report is based on data from a mass court observation project in which citizen volunteers observed magistrates’ court hearings and reported what they saw. They faced a variety of obstacles: ‘Audibility issues, inaccurate court lists and courtroom jargon made it difficult for courtwatchers to work out what was happening. Volunteers were often asked to justify their presence by those working in the court. This points to a court system that has deprioritised public access.’ The report, which comes with a foreword from The Secret Barrister, recommends a number of ways of making courtrooms more open and accessible.
The Court of Protection Law Reports (COPLR) have been revived, under the editorship of Alex Ruck Keene KC (Hon), and will be published in quarterly parts by Bloomsbury Professional alongside their Family Court Reports (FCR). The first issue came out in May 2024. Keene also edits the monthly Mental Capacity Report newsletter written with other barristers from 39 Essex chambers, dealing with a variety of practice areas affecting the Mental Capacity Act 2005 and the Court of Protection.
The Public Accounts Committee (24 May 2024) published its report on Value for Money from Legal Aid (HC 481) saying it was ‘deeply concerned about MoJ’s and the Legal Aid Agency’s (LAA’s) lack of curiosity on the impact of decreasing numbers of providers on people’s access to legal aid’ following the drastic cuts introduced twelve years ago in the Legal Aid, Sentencing and Punishment of Offenders Act 2012:
‘MoJ’s legal aid reforms have undoubtedly led to reductions in direct spending on legal aid, with a £728 million (28%) real-terms reduction in legal aid spending in 2022–23 compared with 2012–13. But both MoJ and His Majesty’s Courts and Tribunals Service (HMCTS) have failed to improve their understanding of where costs may have shifted to other areas of the justice system or wider government. For example, MoJ acknowledges that the removal of early legal advice for issues such as immigration and family issues may have led to additional costs, but it has failed to make progress in identifying or addressing them. HMCTS’s failure to improve the data it collects on the impacts of increasing numbers of people representing themselves (“litigants-in-person”) on courts, which have been under immense pressure in recent years, is particularly disappointing.’
The Lucy Letby case was the subject of a complaint by David Davis MP, using Parliamentary privilege to discuss the case, which is subject to reporting restrictions, and suggesting that a block on a 13,000 word story discussing the case in the New Yorker magazine seemed ‘in defiance of open justice’. The print edition of the magazine was available in the UK, and the app version, but the online version was blocked to UK readers. The Guardian (MP uses parliamentary privilege to ask why Lucy Letby story blocked in UK) explained that following her conviction for the murder of seven babies and attempted murder of six other babies at the Countess of Chester hospital, where she was a neonatal nurse, Letby had appealed against conviction, and was awaiting retrial on a further count of attempted murder. Hence the reporting restrictions, which the Press Gazette helpfully set out in its coverage, New Yorker defies contempt risk to publish Lucy Letby story in UK print edition (15 May 2024). Judgment on the application for leave to appeal is still pending, as Joshua Rozenberg explained on his blog A Lawyer Writes, Justice and contempt.
In a separate development, the Letby Inquiry chaired by Lady Justice Thirlwall issued a ruling on the livestreaming of the inquiry hearings on 29 May 2024. In summary the ruling was that the inquiry, which is due to begin on 10 September in Liverpool town hall, will be held in public and transmitted by live links to additional rooms within the building; that live links will also be available, on undertakings, to all core participants, their representatives and accredited media; but that the hearing will not be live streamed to the wider public via the internet. A corrected (and, where necessary, redacted)
transcript will be uploaded to the Inquiry website at the end of the day, or as soon as possible after that.
The Times (£) (30 May 2024) had a fairly lighthearted report by its New York correspondent Will Pavia about the process of covering the Trump case. In Diet Coke, cowboys and lavatory lockdowns — what I saw at Trump’s trial, Pavia recounts the long queues from 5am to gain access to the court or an overflow room to watch proceedings, the ‘lavatory lockdowns’ when the defendant left the court for a break in proceedings, during which he often ranted to reporters in the lobby about the unfairness of it all, the rival public supporters demonstrating outside court, and so on. The Times also had a story by one of the court artists covering the case, Donald Trump’s courtroom artist on his frowns, scowls and ‘crocodile’ mode (1 June 2024). It seems they can remain in court while drawing (unlike in this country) but have to take the images outside to photograph and send them to their newspapers.
(There is probably a wider media/corruption/human rights story about this so-called ‘hush money’ trial, namely the press’s apparent freedom of non-expression – or indeed suppression – of stories of genuine public interest, in exchange for large wads of cash from powerful people, but perhaps that is a topic for another day.)
Legislation: The ill-fated anti-SLAPPs Strategic Litigation Against Public Participation Bill was one of a number to fall by the wayside during the pre-election washup, along with the Criminal Justice Bill mentioned above. The Victims and Prisoners Act 2024, featuring ‘Jade’s Law’ as reported above, was saved however. The Law Society Gazette had a piece: Election ‘wash-up’ latest: Leasehold reform bill set to pass. See also The Guardian: Lost laws: which legislation will slip through the net before the UK election?
Petition via Change.org, was launched by Sarah Taylor on 11 May 2024, to Allow DA Survivors to Speak Out regarding Family Court Proceedings, free from Prosecution. ‘We are calling for a change in the law to allow victims of Domestic Abuse to speak out about their experiences in the family court, without fear of being held in contempt of court, once their case is no longer active.’ At present, unless a party is speaking to a reporter in a Reporting Pilot court, they are still bound by section 12 of the Administration of Justce Act 1960 not to share information relating to the court proceedings.
FAMILY LAW IN OTHER JURISDICTIONS
Canada
SLAW, Canada’s online legal magazine, posted a Book Review : Family Dispute Resolution: Process and Practice (2024). Edited by Peter Salem and Kelly Browe Olson, and just published by Oxford University Press, ‘this is THE book that family dispute resolution (FDR) practitioners and educators have been waiting for’, according to reviewer Hilary Linton, of Riverdale Mediation Services. ‘Though heavily US-focused, there are three strong Canadian contributors and some of the chapters credit great research and practice tools from Canada,’ she says. While here in the UK the government seems keen to encourage mediation (and other forms of ADR) as an alternative to costly and time consuming court processes, it seems that in Canada, according to Linton, ‘we are in the midst of an evolution away from family mediation and towards a more refined and differentiated menu of FDR services’.
That’s all for now. Thanks for reading.
Seen something to go in the next Roundup or that you’d like us to write about? Send it to info@transparencyproject.org.uk
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