When we first posted on Tuesday about the Sammy Woodhouse story as it appeared in The Times (initially an anonymous story but swiftly identified as a story about Sammy and her son) the only real source of information was The Times itself (and a brief video posted on twitter from Sammy just as we were about to publish).

A lot has happened since then and there is further, in some respects conflicting, information available – but some points are still unclear. We’ve abandoned our initial position of not identifying Sammy, in view of the level of other coverage.

What was initially a campaign (we thought) to change the law to prevent a father without PR and who had fathered a child through rape from being notified of the existence of care proceedings, has become a campaign for any father convicted of rape to be stripped of all his parental rights, contact, rights to participate in proceedings or even to be notified of them – regardless of the facts of the case, including whether or not he has parental responsibility, has an established relationship with the child, and regardless of the child’s wishes (we’re not quite sure if Sammy herself is espousing reforms this broad but certainly others are).

We thought it was right to acknowledge the shifting sands since we first wrote about – from our perspective – some unhelpful journalism that said the story was one of obvious local authority failures. In her initial video, Sammy seemed to be saying the issue was with the lack of clarity of the law rather than the local authority. Since we (and others) have pointed out that it was theoretically possible for Rotherham to have applied for permission not to serve the father, the focus has swung back, with people asking whether or not Rotherham ought to have applied.

We are not in a position to judge Sammy, or indeed anyone else. We are not going to offer a view about whether calls for reform are right or wrong, because that is not our role as a legal education charity. We will call out journalists or MPs who are sloppy about how they describe the law. It is perfectly legitimate for people to say they want the law to change, but not all the MPs who have called for change have accurately described the existing law. None of the MPs we have seen offering views on this are lawyers, and certainly none are family specialists (as is obvious to any family lawyer from points of detail like their inability to correctly name the Act of Parliament they want to amend). Our contribution to the debate is to help people understand the law, so that they can decide whether they still want to reform it and, if they do, they can make better targeted proposals for reform.

It took some time for the facts to emerge that a) a rule requires service and b) an application can be made for that rule to be disapplied. If people had grasped at the outset that there was a rule requiring Rotherham to send notice, and that it was possible to try and disapply the rule, they might not have called for the rule to be scrapped and might have focused instead on when and how applications could be made to suspend the rule. We’ve written some guidance here about the law in that regard because whether or not the law changes, it’s clear people are worried that this sort of potential application isn’t being made when it should be. Does the rule still need to be changed if the appropriate applications to suspend its operation are made? We don’t know, but that is something that those calling for reform can now think about.

So, there is a lot of ground to cover here.

What new information is available?

We are going to list some of the information and links we’ve come across over the last few days. It won’t be comprehensive as we’ve not managed to capture everything.

Louise Tickle, journalist and member of The Transparency Project, disagreed with our post and wrote her own here in defence of The Times piece.

In this video posted on Wedneday by the BBC, Sammy’s main focus is that she is getting conflicting messages about what the law is, and it needs to be clearer. In the linked article, the BBC make a reasonable stab at explaining the basics of the law.

This video was posted by Victoria Derbyshire Show on their twitter feed :

On Wednesday, Victoria Derbyshire featured the case. You can view that here. On Thursday the show featured the unfolding campaign. They ran a piece about a married woman who had suffered marital rape of which her husband had been convicted, together with child abuse image offences. She had been forced to privately fund lengthy court proceedings in response to her husband’s applications from prison for contact. Because they were married, he had parental responsibility so was in a different position to the father of Sammy’s child. She called for fathers to be stripped of all parental rights upon conviction. Surprisingly, she reported being encouraged by social workers to continue contact whilst the investigation was ongoing. Our Chair, Lucy Reed, appeared on the show, explaining the current law, what thinking underpins it, and some of the potential consequences of the sort of change proposed. You can view the episode here (see about 44 mins in) or read the associated news item here.

We’ve had brief twitter exchanges with MP Louise Haigh, where she seems to make clear that the challenge was to the law, not Rotherham (contrary to the impression in the quote from her used by The Times), but we’ve not really had any substantive engagement with our attempts to actually discuss reform :

Haigh gave an interview which talks about Rotherham ‘encouraging’ the father to have contact. We are not sure if that is a reference to them sending him notice of the proceedings or doing something more. She says that ‘the law as it currently stands allows a convicted rapist at any time to click his fingers and drag his victim and their child through the family courts and traumatise them all over again’. There are some restrictions on when and how a father can take a mother to court in this situation – they aren’t automatic or absolute, but it isn’t right to suggest a father has free reign. (We don’t suggest family courts always get it right when managing applications from abusive fathers which can undoubtedly have the intention and effect of re-traumatising or controlling their victim – but as a matter of accuracy the law does allow courts to restrict or stop this if justified).

On Friday, Louise Haigh wrote a comment piece in the Guardian calling for reform to ‘British law’ (she means the law in England & Wales). She says that Sammy was seeking a care order, which is legally impossible – she might have agreed to Rotherham’s application but only a local authority can apply.

Haigh says that ‘the broad and enabling legislation, as it stands, gives rapists and other abusers the right to participate in these proceedings’. We’ve explained here that in fact it doesn’t. Where a father doesn’t have PR he is (usually) TOLD that there is a court case and, following that, can ASK to participate – but he can be told NO. In Sammy’s case, had he asked, he might well have been told NO.

Haigh also says that ‘The shifting response of the government reveals how much ambiguity there is in the law’. We’re not sure that is so – government spokespersons are as susceptible to shooting from the hip when asked for comment as MPs are – most lawyers will tell you the law here is tolerably clear – though we don’t think it hurts to spell it out as we did.

Haigh also suggests an amendment to ‘the Children’s Act 1989’ (she might mean the Children Act 1989), to change this notification requirement, but that requirement isn’t in the Children Act. To change this, there would need to be an update to a Practice Direction (easier to achieve than amending an Act of Parliament). She doesn’t call for specific wider reform to the law;  she calls for ‘a definitive change in the law so that it is crystal clear – the rights of victims supersede those of convicted rapists.’ On twitter, she makes clear that she is asking for a termination of all parental rights of all rapists.

At some point this petition emerged, which is titled ‘Stop rapists from accessing children conceived through rape’. Confusingly, that says ‘the courts said my abuser Hussain could seek visits with my son’. We haven’t seen this elsewhere, so we’re not quite sure where that fits in. Everything else we’ve seen relates to Rotherham’s actions around contact and suggests the court played no role in this at all. We don’t know whether the petition is by Sammy or put up on her behalf, so perhaps that accounts for the difference in account.

Sammy says that these are widespread problems and that ‘Some women are even having their children removed and custody given to the rapists.’ We are not sure whether Sammy is referring to children being placed in the care of convicted rapists – we think that is unlikely to be happening on a widespread basis if at all, and that probably these are women who have alleged rape but where (for whatever reason) there has been no conviction and no findings made by the family court).

Piers Morgan waded in with an on-air rant about the case here.

We’ve been sent a link to an article written by Sammy earlier this year (after the care proceedings had concluded) where Sammy was expressing the view in The Sun that she didn’t hate her rapist.

We’ve seen a clip of Nazir Arzal commenting on Sammy’s case which we now can’t locate. We think he suggested that Rotherham had written to the father to advise him of his right to seek contact. (We’ll update if we find it).

Finally, this morning The Times published a long interview with Sammy entitled : Sammy Woodhouse: ‘He was Prince Charming. When he raped me, I felt like it was my fault’, which contains significant new information, in particular that the father of her son appears to have had contact with him for a period of time prior to the care proceedings, during a period of reconciliation that Sammy now regrets. It quotes Sammy describing the start of the care proceedings:

““When I got to court I thought it would be easy, then the social worker said, ‘Ash is not coming’, and I was like, ‘What?’ I was in complete shock. He’s in prison for 35 years, but they were saying he had parental rights and could see him. He could have walked into that room and no one would have warned me. I needed to keep my son away from him.”

The Times also report that Sammy ‘discovered that the social workers had told her son that they could supervise him to see his father’. The article indicates that there is more information that they cannot publish, so we still don’t have the full picture.

Is there NOW evidence of wrongdoing or failure by Rotherham in Sammy’s case?

Not really. There are various different accounts of what Sammy or others say Rotherham did or didn’t do (For the record, that doesn’t mean anyone is lying, but non-lawyers don’t express themselves in legal terminology or with the prevision that is useful for a legal analysis – and a lot of the information in the public domain is second hand).

IF Rotherham specifically invited the father to apply for contact in prison, knowing the offences of which he had been convicted, that would be questionable, but in light of the new information about the previous relationship might be justifiable. If the child (a teenager of 16 or 17) was asking for contact, that might have been a reasonable enquiry to make. But we remain unclear whether or not Sammy is saying that the notice of proceedings was in effect an invitation to apply for contact (as The Times suggests), or if she is saying that Rotherham did something above and beyond that. The reference to social workers talking to her son about contact probably arises from them exploring the child’s wishes and feelings. Whenever social services look after a child, they have a legal duty to do establish his wishes and feelings (s22(4) Children Act). They also have a legal duty to establish the wishes and feelings of a parent (with or without PR) ‘as far as is reasonably practicable’ (which is not the same as ‘as far as is reasonable’) before making any decision about a looked-after child. It’s not clear if the child was looked under voluntarily (under s20 Children Act 1989) before the matter went to court. If he was, this duty will have applied. They will also specifically have had a duty to promote reasonable contact with both parent (s34 and Schedule 2 Children Act 1989)*. It is difficult to be clear about whether promotion of contact would have been reasonable when so little is known about the child himself and his wishes. If Rotherham had taken the view that contact was inconsistent with the child’s welfare they would not have had to allow it (indeed they should not have done so).

As we’ve said already, it might be that Rotherham should have applied for permission not to serve the father with notice of the court case – but as set out in our guidance, these are rare and difficult applications and it would be unfair to condemn them for not doing so without knowing more. We are not clear whether anybody raised this issue before the court case was started and, if not, why not. For example, Sammy was probably represented in the ‘pre-proceedings process’ and this would have been a good opportunity to raise this issue so an application could be made if needed. We don’t know why it wasn’t raised. although it sounds as if Sammy says she was not aware he’d be notified, so didn’t herself raise it. If so, that would give rise to the dual questions : why wasn’t this explained to her by her own lawyer or social services and why was it not identified as an issue arising from the facts of the case, even if Sammy had not raised it herself? We can’t answer those questions, not least because we don’t have the timing of how recently contact was taking place before the court case began. What we can say is that the fact the child already had a relationship with his father and extended family would most likely have made it difficult to successfully argue he shouldn’t even be told the case was going to court, although it would not necessarily have meant he would have been allowed to take part (at all or without special arrangements).

In this video Sammy says that she asked Rotherham if she could go abroad with her son on holiday and that Rotherham said she needed to ask for teh father’s permission to apply for a passport. This is presumably whilst her son was under a care order, when Rotherham will have been sharing parental responsibility. IF Rotherham told her that the father’s permission was required for her son to obtain a passport that was inaccurate advice – a father without PR responsibility does not need to give permission for a passport to be issued. However, IF this was a first passport application, Rotherham (who will probably have had to make the application because of the care order) will have needed the fathers details (name, address, dob, nationality etc) in order to establish that the son was entitled to British Citizenship and a passport. It seems possible that this is a miscommunication about needing the father’s details rather than his permission, but it is equally possible someone at Rotherham gave her duff information. That sort of mix- up by social workers who are not legal experts is not unheard of, but of course in the context of this case it would have been particularly unfortunate. We also note that it looks like the application forms for first passports have changed in recent years. Alternatively, they may have been acting under the s22(4) duty to consult any parent (even without PR) when making a decision about the child.

What about the campaign?

We’ve tackled the initial strand of the campaign in our guidance.  As we’ve indicated above, we don’t know whether better awareness of the possibility of applying not to notify an abusive father might be the answer to some of the concerns Sammy’s case has raised. .

The calls for reform have changed and broadened now. A number of other mothers have come forward who are calling for some sort of automatic and all-encompassing stripping of rights upon conviction for rape. That would be a much bigger thing. It would certainly require intervention by Parliament by way of primary legislation. There would need to be thought given to whether this would apply to all fathers convicted of rape – against any woman (not just the mother), whether or not it led to conception, whether or not a father had previously held parental responsibility, and whether or not the children already had an established relationship with him. Parliament would need to consider whether there should be any exceptions to this, such as where there had been a reconciliation or some form of rehabilitation or some other change of circumstances. Finally, it would need to work out how to make all this compatible with the child’s Article 8 rights to private and family life with both parents.

What is The Transparency Project’s position on all this?

On any basis. these wider reforms would not be easy to draft and would most likely be highly controversial because they would be in real tension with the ethos of The Children Act 1989 whose primary focus is on the welfare of the child (taken in the round), rather than either the father OR the mother’s welfare, and with human rights legislation. So, whatever you think about whether there should be a reform, this would probably be something that would require a radical root-and-branch shake up of the whole framework of the Family Court for the last 30 years. Some would say that is a good thing, some would say it’s a terrible idea, or unrealistic. It’s not our role to offer a view on whether there should be reform. Rather, we are focusing on explaining the current law, and offering guidance to help make it work unless and until it is changed.

More generally, our guidance note on domestic abuse, published earlier this month, focuses on those court cases where abuse has yet to be established, and where the family court has to first of all work out whether abuse has happened at all.

*Schedule 2 para 15 says : “Where a child is being looked after by a local authority, the authority shall, unless it is not reasonably practicable or consistent with his welfare, endeavour to promote contact between the child and [his parents]”. s34 says : the local authority must “allow the child reasonable contact with” his parents (and this section also sets out various limited exceptions when the schedule 2 duty to ‘promote’ contact does not apply).

[UPDATE : 9 DEC 2018 :

A few further bits of information since last week :

• a further interview with Sammy in the Guardian last April can be found here. That suggests that there was some contact between Sammy’s son and the baby when he was very tiny. It wasn’t until 2012 that Sammy went to the police having come to the realisation that what had happened to her was abuse. The interview includes the following quote :  ‘Have I forgiven him? Probably, yes. Not because I think it’s right, what he did, I’ll never think that’s right, but I need to move forward.” She won’t ever have contact with him, though, “and neither will my son. And my son knows that.”’ It’s not clear whether the reconciliation described in last weeks Times interview took place before or after that and where this fits in with the child’s move into care or the court process.
• This article in the Yorkshire Post appears to confirm that the Ministry of Justice have accepted that Rotherham complied with current practice around notifying fathers of care proceedings in Sammy’s case.
• Sammy’s campaign reached Parliament, with Louise Haigh MP asking a question of the PM in the house (the response to which was not very accurately reported (See tweet below and Hansard).

END UPDATE]

Feature pic : transparent dice by dicemanic on flickr