Today sees another Andrew Norfolk front page article in The Times about the wrongs committed in the Family Court and by social services. Sadly, just like last time, this is a sensationalised headline and article which ignores some important facts and legal context.

Times Investigation : Jailed rapist given chance to see his victim’s child

Council investigated over ‘perverse’ decision (paywall – sorry)

Today, Norfolk whips up outrage about a ‘jailed rapist’ who is ‘given a chance to see his victim’s child’. As with previous investigations, The Times makes a great play of its noble decision to protect the child’s identity by refraining from identifying the local authority or the parents, when it must know that to do so would very probably be prohibited in any event in order to protect the privacy of the vulnerable mother and child*. As with previous scoops, there is a familiar undertone in mention of Pakistani grooming gangs. The implication in the article is that the father is a member of such a gang and the child is the product of it. In the course of the article, the man is referred to variously as a ‘jailed rapist’, ‘jailed sex offender’, ‘rapist’, ’multiple rapist’, ‘perpetrator’, ‘serial rapist’, ‘former abuser’, and ‘man’, in preference to direct acknowledgment of him as the father of the child (he is referred to as the father twice and as having ‘fathered’ the child twice). The Times seems barely able to bring itself to say that the rapist was the child’s father – in the absence of that connection being pointed out, any reader of the headline will probably have boggled at what it seemed to suggest, that he would have access to an unrelated child. (Many will baulk at the suggestion that he should have had a chance at contact even though he is the father of the child, but that is a distinct point).

*(although we notice that the mother of the child has identified both herself and the local authority we think it is best for us not to do so until we are clear what the status of any reporting restrictions might be – and we will moderate comments to this post accordingly)

When The Times published its series of articles about the ‘muslim foster carer’ case, it whipped up a huge frenzy of concern as a result – and it was only many months later that the true facts emerged.

This time the shadow police and crime minister has waded in right from the outset, saying it was ‘appallingly insensitive’ of the council to ‘decide’ to offer the ‘multiple rapist’ a role in the proceedings. The Victims’ Commissioner says the council decision was ‘perverse’.

The perceptive reader will have deduced from the amount of quotation marks I am using that there are some issues with all this.

Norfolk says that:

‘By law, a local authority making such an application is obliged to give notice of the proceedings to all “respondents” in the case. These include anyone with “parental responsibility” for the child.’

He is correctly referring here to the terms of Rule 12.3 of the Family Procedure Rules 2010 (which you can read here if so inclined. But that isn’t the only applicable rule.

The article goes on to say that :

‘A senior Ministry of Justice official met the mother last week and has promised to explore whether it was “a case of an individual social worker making a mistake or a systemic error”.

A government spokesman said court rules made it “very clear that applicants in care proceedings should only ever notify people who have parental responsibility for the child”.’

This last assertion about the court rules is just wrong, as is the earlier use of the term ‘decision’ to imply that the local authority was making a choice about whether to notify the father. We suggest that the shadow police and crime minister, the Victims Commissioner, the unnamed MoJ / government sources and Norfolk himself should take a look at Practice Direction 12C to the Family Procedure Rules 2010 (paragraph 3.1 to be precise – read it here), which makes it mandatory for a local authority applying for care orders (as it appears this local authority was) to formally notify a father of the existence of proceedings – even one who was not married to the mother and has no parental responsibility – and even one who is as dangerous and unpleasant as this one appears to have been. No ‘decision’. No perversity. No appalling insensitivity on the part of a local authority.

The Times have this evening published a second version of the story, identifying the mother in light of her self-identification and acknowledging this rule, having been corrected by the local authority.

Although the headline leads readers to believe this is about a rapist being given access to a child, this is only referred to briefly in the article, where it is said that social services ‘gave [the father] a chance to seek visits from the boy’. However, it appears that this is actually no more than another reference to the local authority having given the father notice of the court case, through which (if he had chosen to become involved) he could have sought contact or parental responsibility. This is supported by a video that the mother of the child posted online today in which she says that the local authority ‘offered him to apply for parental rights’. Whilst the mother complains broadly that ‘this’ is happening across the country and that rapists and their families are being offered contact, there appears to be no suggestion this father did in fact seek such contact either through the court or directly through social services – or that there was ever any prospect of him being granted it (although this may understandably have been something the mother worried about).

Ultimately, what this boils down to is a story about an unnamed local authority which has complied with court rules to give notice to a parent of the fact their child was subject to proceedings. Not such a great front page story though, is it?

Any mother who has been the victim of physical or sexual violence will be upset at the idea that they might have to be involved in court proceedings with their abuser, particularly that they might have to be in the same courtroom as them. I have represented many such clients, and have reassured many clients of the special measures that could be put in place to minimise the stress IF the father were to become involved.  In this case though, that didn’t happen because having been notified the court case had been started, the father didn’t ask to become involved. So that was the end of that.

Although we are told the case was a year ago, and never got as far as the father setting foot in the courtroom, it appears the mother has subsequently complained to the MoJ about the possibility he might have been allowed to do so, and the MoJ has given a quote to the press without anybody ever bothering to look at the rules. It does not appear as if the ‘investigation’ that The Times refer to in the sub-heading is any more than this complaint. (The correct channel for a complaint about the actions of a local authority would be through their internal complaints process and then the Local Government Ombudsman, and for a complaint about the family court by way of appeal or a complaint about the individual judge to the Judicial Conduct Investigations Office – not the MoJ). It will have been the local authority legal department who sent notice to the father, and is very clearly not a failure on the part of an individual social worker. It is unclear from the article whether or not the mother raised this issue with the MoJ at the time or more recently – and if later it is unclear what might have prompted her complaint now.

It would have been perfectly legitimate for the mother or for Norfolk (or the various people quoted) to complain that the rule itself is wrong, or that on the facts of this case the local authority should have argued for the rule to be disapplied – but that is not what this article does (and one suspects that would have made a less compelling lead item).

As we were finalising this blog post, we noted the mother of the child has today published a video in which she tells us that she and MP Louise Hay are calling on government to amend the Children Act so that rapists can’t see their children conceived through rape. It seems odd that this public campaign is apparently being launched on a day when The Times publishes its anonymised leading article, purporting to be mindful of the privacy of the parents – it seems unlikely that The Times, whose source was presumably the mother in the video, could possibly have been unaware that the attack was really against the law rather than the actions of the local authority, and it is difficult therefore to justify the angle they have elected to run.

It would be possible in exceptional circumstances for the court to direct that a father should not be notified of proceedings at all (the writer of this blog post has dealt with a couple of such cases – it is difficult to justify legally because the rights of child and parent to have their biological and legal relationship respected (even when a parent is a very bad parent) are enshrined in law – but it can be done). [Update 28/11/18: Thanks to KeenReader for reminding us of this example of an application being made so that the local authority didn’t have to notify the father – which in that case succeeded : CD (Notice of care proceedings to father without parental responsibility) [2017] EWFC 34 (24 May 2017)].

From the limited facts we know about this case, it would perfectly reasonable to question whether the council in this case should have (exceptionally) applied to the court for permission not to send the notice to the father – but one would really need to know more about the circumstances to form a view about whether that was indeed appropriate or even likely to succeed (and frankly since the newspaper don’t link to the judgment and give very limited details, it is possible this was considered and sought but rejected by the court).

We should also not forget that what is being described is the bare notification of a father that a court case is ongoing – it is not the same as serving him with the application form or the evidence in support with all the details – even if the father had sought to become involved (which in this case he didn’t) the court would have been entitled to make directions restricting his access to documents and ensuring that any participation he did have would be in such a way as to avoid distressing the mother of the child (for example through the use of screens or video links – see our Guidance Note about domestic abuse cases which touches upon these issues).

Care proceedings often involve abusive parents, many of whom are serving a term of imprisonment for violent offences against another involved adult or the child himself – so the issues that this raises are relatively familiar – however even ineffective or thoroughly dangerous, nasty parents are almost always entitled to a say in their child’s future (how much weight will be given to their views will depend on the circumstances). It is often upsetting and frightening for the parent who has been the victim of abuse to deal with that, but the family court has a heavy responsibility to decide whether or not a child should be removed, perhaps adopted away from a parent, and in doing so it almost always has to involve both parents of a child in some way. Family courts and the professionals working in the system are used to putting arrangements in place to minimise the distress the involvement of an abusive (or allegedly abusive) parents might cause. The article suggests that the involvement of a father of a child who had been conceived to a vulnerable mother in the awful circumstances described would raise real issues about re-traumatisation and about how the court could make sure the mother would still feel able effectively take part in the court case if the father were also to be involved. None of what we say here is intended to negate those very real issues, which did not in fact arise in this case, but which do arise in many others.

Abuse is of course the main reason that such cases come to court in the first place and very often the court has to involve all those accused or suspected of abuse in order to work out the facts of any past abuse and the future risks that arise – because the criminal process has not yet determined guilt or innocence (or because the CPS have decided not to press for a conviction). An imprisoned parent may be on remand awaiting trial (and therefore their guilt may not be known) or may be in the process of reforming and recovering from addiction. It does not sound as if that was the case here, as it appears that the father had been convicted of rape of the mother (we say ‘appears’ because it’s not quite clear who was convicted of what against whom) – but nonetheless the council will have had an obligation to notify the father of the case, and very probably to explore whether or not there was someone within his family who might be able to care for the child if the mother or father could not safely do so (that seems a remote possibility given the limited information we have but adoption is such a severe outcome that the court will usually require it to be considered).

We invite The Times to confirm whether or not a published judgment exists in respect of this case and to identify that case to us.

We have had some differences of opinion today within The Transparency Project about the legitimacy of this article in raising the issues around the giving of notice to seriously abusive fathers whose children are involved in care proceedings, given that the rules are mis-stated and the law skated over by The Times. It is fair to say that our lawyer members consider the article misleading and unhelpfully focusing criticism on individual professionals and public authorities who are not responsible at all for the rules fixed by court, and which are underpinned by primary and international legislation that devices from parliament and government. And that the hyperbolic terms in which it describes the operation of an entirely standard procedural safeguard as if The Times have uncovered an extraordinary example of impermissible practice is just not justified. Our journalist contingent considers the issue beneath the surface is an important one and that therefore it is a valid piece of journalism notwithstanding the technical inaccuracy. It may be in the coming days we will publish that alternative perspective on the value and quality of this piece of journalism.

We would welcome other views.

Feature pic : Once They Unlocked So Many Doors by Viewminder on Flickr (Creative Commons)