All Party Parliamentary Group on Family Law & the Court of Protection

The next meeting of the All Party Parliamentary Group on Family Law & the Court of Protection is to take place on 30th November 2010.  The speakers are from the Family Justice Review Panel and include David Norgrove of the Family Justice Review and the topic is the Family Justice Review in Action.  This is an open event and all are welcome but you have to request an invite as seats are limited.

Narnia 3D Charity Screening 9th December

I am a keen supporter of the Who Cares? Trust

which helps some of the 74,000 children in care in the UK and for the past 5 years we have been part of the Biking for Children In Care group (involving a number of Guardians, family lawyers & other child care professionals as well as supportive friends0 which has raised over £350,000 in the 9 years it has been going so far.

Apollo Cinemas Picadilly Circus (Lower Regent Street) are kindly hosting an exclusive screening of Narnia 3D (The Chronicles of Narnia: Voyage of the Dawn Treader) on Thursday 9th December 2010 to help us raise money for the charity. Twentieth Century Fox are kindly donating the film itself.

Tickets cost £30 per adult (for seat & refreshments) & £15 per child (under 14). A drinks reception will be served at 6.30 pm and the screening will start at 7.15. You can order tickets here

HAT tricks

Judgment has now been delivered in a case involving Hair Alcohol Testing (LB Richmond v B & W [2010] EWCA 2903). You should be aware that I appeared in that case for Trimega Labs as intervenor. I will be doing my best to draw some practice lessons from it in further blogposts but the headlines are:-

* hair tests should be used as part of the complete evidential picture
* greater use of the Experts' Practice Direction when hair tests are commissioned or at least when interpretative analysis is sought
* the tests are reliable to show excessive alcohol use ie above 60gm alcohol per day or just under a bottle of wine / 2-3 pints lager
* the test results cannot yet discriminate between people who are abstinent and those who are social drinkers
* if reliance is sought to be placed on any result other than consistent with excessive use / inconsistent with excessive use experts must be able to justify this
* test results purporting to show alcohol use month by month are not approved by the Society of Hair Testing
* testing for both FAEE & Etg is more reliable than testing for one batch of markers only.

Once more without conviction

The case of Re L-W [2010] EWCA Civ 1253 is getting a lot of blogging attention (Family Lore, Researching Reform).

This was an intractable hostility type case with an unusual gender role reversal in that the 10 year old child lived with his father and was refusing to have contact with his mother.

The court (Munby LJ in the lead) states in the case:

Nothing in this judgment should be seen as a charter for avoiding enforcement of contact orders in whatever is the most appropriate way, including, where appropriate, by means of committal.

However, anyone trying to persuade a court to use committal as an enforcement tool in intractable hostility cases involving children who express firm views that they do not want to have contact will now have an uphill struggle.

In the case the usual contact order terms: allow the parent to have contact and make the child available for contact were used. The court has emphasised that this is not the same as being ordered to achieve contact or make it happen and that it will not be contempt unless contact an be made to happen and is not made to happen. If something prevents the contact from happening eg a volcanic ash cloud then the question of breach never arises and the parent who does not achieve contact does not get to the point of arguing reasonable excuse because force majeure stops the contempt charge in its tracks. Reasonable excuse only comes into when contact could be made to happen but does not, for example because the childe is ill.

The father's obligations under each successive order were to "allow" contact and "make M available" for contact. To "allow" is to concede or to permit; to "make available" is to put at one's disposal or within one's reach. That was the father's obligation; no more and no less. But that is not how Judge Caddick treated the orders. Running through all his judgments is the assumption, indeed the repeated assertion (see the passages I have set out in paragraphs [26], [51], [60], [66] and [67] above), that the father's obligation was to "make sure" or "ensure" that M went and that contact took place. The father's obligation, according to Judge Caddick (see the passage set out in paragraph [60] above), was to "make sure that he did all that was necessary so that that child would go" and to take "whatever other steps within the exercise of his parental responsibility were necessary to make sure that he went". The father may have been under a parental or moral obligation to do these things, but on the wording of these orders he was not, in my judgment, under any legal obligation such as to render him in breach of the orders for failing to do them, let alone for failing to achieve – to "ensure" – that contact actually took place. Nor, with all respect to Mr Walden-Smith, was the father under a legally enforceable obligation to take such steps in the exercise of his parental discipline, guidance and encouragement as were reasonable in all the circumstances to ensure that contact took place.

The court did not strike out all the findings of breach of the contact orders made by the Judge but in considering the question of sanction for those breaches emphasised the obvious drawbacks of imposing a custodial sentence on a parent and the thoughts of Dame Elizabeth Butler-Sloss P in Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279, at para [28]:

the sanction of prison for mothers who refuse to allow contact is a heavy one and may well be a self-defeating one. It will hardly endear the father to the child who is already reluctant to see him to be told that the father is responsible for the mother going to prison. Prison is a sanction of last resort and there is little else the court can do. At this stage also the court may have the evidence that the continuing efforts to persuade the mother to agree to contact are having a disproportionately adverse effect upon the child whose welfare is paramount and the court may be find it necessary, however reluctantly, to stop trying to promote contact. That is a very sad situation but may be necessary for a short or for a longer time if the welfare of the child requires it. One aspect of proportionality which has to be weighed in the balance is the length to which a court should go to force contact on an unwilling child and on the apprehensive primary carer. At this point the factor of proportionality becomes all-important since there is a limit beyond which the court should not strive to promote contact and the court has the overriding obligation to put the welfare of the child at the forefront and above the rights of either parent.

On the facts of the case the court considered that it was probably too late for a prison sentence to have any real likelihood of achieving contact.


Here are Lord Justice Sedley's concluding remarks:

There are at least two morals. One is that before deciding that a parent is the author of a child's resistance to contact and so can be made the subject of a coercive order, the court needs also to be sure that the parent, by one acceptable means or another, can still reverse the child's attitude. The other is that even then a court, despite the affront to its dignity, may have to be prepared, if it comes to the point of committal, to accept that the predictive premise on which it initially acted has turned out to be wrong: that, for example, the child has internalised the custodial parent's hostility, so that punishing the parent can no longer produce the intended outcome and may produce its opposite.

This last point brings me to something which I venture to say less as a judge than as a parent. The critical attitude which M has acquired or developed towards his mother is not one of simple hostility. He wants her to be the mother he remembers when he was little. There is a real pathos about this in a boy, still only ten or eleven years old, who has had and is still having to live through an acrimonious family rift and realignment. If instead of seeking to restore relations with his mother by letting her see him for a few hours at a time the courts were to abandon the blunt instrument of coercion and were to let time take its course, it seems to me much more likely that M will in his own time find his own way back to the affectionate relationship with his mother which both of them wish for. It may not happen, of course; but if we continue down the present road it will certainly not happen. The law does its best in the absence of other means, and modern legislation has done what it can to make the law's own means practical and fair; but the law is not omnicompetent, perhaps most of all when, equipped only with its received or inherent powers, it is called on to intervene in the subtle and unpredictable business of child care and human relations.

The case is, however, to remain in the court of first instance to deal with the mother's application for a residence order. I would put money on it being back in the Court of Appeal before long.

All Party Parliamentary Group on Family Law & the Court of Protection

Over on Researching Reform Natasha Phillips has a number of posts about the newly formed All Party Parliamentary Group on Family Law & the Court of Protection to which she is the Secretary (& possibly co-founder). Mostyn J gave the opening and entertaining speech on What is Marriage? and you can link to the full text of it from Natasha's website. It is s great initiative and I am sure will be a valuable contribution to the debate about the family justice system.

Ishaq Serious Case Review

The full SCR has also been published in the case of Khyra Ishaq who died of malnourishment. All of her surviving siblings also suffered from malnourishment. Her mother and her male partner was convicted of manslaughter, causing / allowing the death of a child and five counts of cruelty.

The history of the case shows that mother separated from the children's father and then started a new relationship with a man who had suffered severely himself as a child, with one of his siblings being killed by their father & was diagnosed as a schizophrenic. Mother had previously been a protective responsible parent. Concerns began to arise with the professional and educational network about her eating and that of the children. Shortly afterwards all but one of the children were taken out of school to be educated at home. At her criminal trial it was eventually accepted that mother was suffering from severe depression in the run up to Khyra's death. The mother was extremely avoidant of intervention, articulate and well-versed in legislation affecting home education and made formal complaints about social services who in turn were not familiar with the home education assessment process assuming it to be more in-depth and comprehensive than in fact it is.

As with the Baby P case, the new partner's background was not checked out although there was no concealing of the relationship. His mental health deteriorated fast and he came to believe that Khyra was possessed with spirits and to punish her by withdrawing food. He also increasingly imposed a wide range of extreme punishments on all the children for relatively minor misdemeanours.

The main legal issues arising from this case relate to the monitoring and assessment of children being educated at home and this will need to be addressed at national level.

Baby P Serious Case Review

Serious Case Reviews are carried out under Regulation 5 of the Local Safeguarding Children Board Regulations 2006 which requires Local Safeguarding Children Boards (LSCBs) to undertake reviews of serious cases in accordance with procedures set out in chapter 8 of Working Together to Safeguard Children (2006).


From the 2nd SCR into the Baby P case, it is clear that Haringey were aware of the presence in the home at least on occasions of Mr H (the mother's boyfriend) but it was always said that he was a friend and there was no evidence that he was living in the household, even from interviews with the children themselves. However, the mother's own account was simply taken at face value. There was no adequate follow up when the father suggested that Mr H was in fact a boyfriend. Mother was asked but denied it - although she did say she would like to date him. The rather obvious conclusion is reached that it should be standard practice to investigate the role of any man who is involved with a family where children are in need / known to SSD and that the wider agency network must report any such suspected involvement.

Following an injury resulting in hospital admission in December and said by the Paediatrician to have been caused non-accidentally the children were placed with a family friend of the mother's choosing. This placement gave the wrong message to the mother about the seriousness with which injuries to the child were viewed. While family members and friends should be seriously considered in many cases in injury cases considerably more caution should be exercised.

An early Paediatric view that injuries were non-accidental and the explanations offered for them was not given sufficient weight at the first CPC. Regrettably the Paediatrician did not attend the CPC.

After the CPC LB Haringey was given advice that the threshold for care proceedings was met although the older children of the mother were not placed on the at risk register. Proceedings were nonetheless not issued and they should have been.

The CPC was not reconvened when further serious head injuries were discovered in March, again resulting in hospital admission. No strategy meeting was held. Very little investigation of the mother's account was carried out. The police were not informed. Proceedings were not brought and they should have been. The SCR comments that the onus should have been placed on the mother at this stage to prove that the injuries were non-accidental in the light of the history and previous s 47 investigations.

After a further episode of injury to a child at the beginning of June (multiple bruising & scratch marks but including what looked like grip mark bruising to the legs) there was disagreement between the police and SSD about bringing proceedings, the police thinking that an EPO could and should be granted. The police did not, however, investigate themselves but left it to the SW to do. The injuries had not been reported but were picked up by the social worker on an unannounced visit. SSD did not take legal advice and implemented a plan involving the family friend moving in to ensure there was not unsupervised contact between mother and the injured child. When the CPC Review was eventually held a number of key agencies were unrepresented and there was no legal adviser present. The Review meeting was told that a legal planning meeting would be held within a week. This did not happen and it was 7 weeks before it did. At a subsequent visit to the home Mr H was present but again no alarm bells seemed to ring. However, over the next few weeks the observed interactions between mother and the children were all fairly positive. The child was noted to be unhappy at school and the mother continued to be neglectful and hostile although she participated in a parenting programme (attending 9 out of 13 sessions but only taking the child on 4 occasions). She also absented herself and the children from the borough for a couple of weeks supposedly to look after a sick uncle.

By the time the legal planning meeting had taken place there were further medical issues - the child had a sore ear thought to be caused by an infection, though mother did also admit to causing bruising while trying to clean it. He also had serious head lice and an infected scalp. He was reported to be head banging though not when in the care of the family friend.

The SCR's conclusions on the legal planning meeting are set out below and I have highlighted the particularly important section about potential disagreements between LA lawyers and their instructing social workers.

The long awaited legal planning meeting eventually took place on 25 July. The lawyer was relatively inexperienced in advising in care proceedings and it became clear that the SW and her TM were reluctant to consider care proceedings; they did not see the necessity for them. The conviction demonstrated at the child protection conference on the 8 June had dissipated. Despite the long delay the lawyer was without the medical report of the injuries on X XXX. The background information was incomplete. On that basis the lawyer did not think they could advise on whether the threshold was met at that time. In any event, even if the threshold had been met, it was the TM’s decision whether to initiate them or not. The threshold was met. The original injuries to child A met the threshold for care proceedings and that carried through alongside any subsequent injuries. Legal services accept completely that the service in this case was inefficient and did not meet the standard required, and they have made improvements to prevent a recurrence. They also accept that they have an independent safeguarding responsibility to any child, and that if they disagree with the decision of a TM then they have a duty to make representation to managers responsible for them.

3.22.6 It can be an unfortunate feature of the understandings in the work that whether the parent is prosecuted or not can become conflated with the degree of risk to the child, and whether care proceedings should be initiated. They are different considerations with different thresholds for action. However they can be become unhelpfully misunderstood around the injuries to the child and the medical opinion. The police are concerned with evidence and place importance on the indications of injuries and the weight which doctors will give to them. Other services can also place importance on the medical opinion of the injuries, too much importance, and they wait for the outcome of the police and CPS’ view of them. If they are not to lead to a prosecution the cause of the injuries can become regarded as uncertain and even accidental. The police accept that it took an unacceptably long time to resolve the position on the original injuries to child A.

3.22.7 The delay was due to a combination of administrative failure, a change of jobs, collecting evidence at the time, and the very long time it took to obtain a second medical opinion. That opinion was that the injuries were probably non-accidental but the CPS judged that it was not strong enough for a successful prosecution.

Interestingly the child stayed with his father for an overnight visit in the last few days of his life.

Continuing concerns about the child's physical presentation and scalp infection but seemingly not in relation to suspected injuries.

2nd August - the police confirmed no further action on prosecutions.

3rd August the child died.

The SCR identifies the failings in this case as being the lack of an authoritative response to very serious concerns about the care of the child, an approach treating incidents as a series of unrelated and unfortunate episodes rather than linked or forming a pattern, a lack of any real challenge to the mother's accounts, a failure to take care proceedings, and an incorrect assumption that proceedings could not be justified unless there was evidence of non-accidental injury which satisfied the criminal standard.

Comparing the First SCR and the second reviews, the first review contains a lot more detail and makes some very specific recommendations of good practice in future. Both reviews are critical of some of the professionals involved in the case, although the first one also recognises that there was good practice in the mix. The main difference is in the overall conclusions set out above and the overall conclusion that expectations of parenting standards in Haringey were too low. In fact the second review, whilst describing the first as unsatisfactory did not dissent from its specific recommendations for improving practice. For the benefit of LA lawyers the relevant paragraphs in the first review are at 6.8, 6.24.12, 7.4.33- 36 & 8.3.31-37.

Adoption & Fostering round up

Many news stories have covered the thoughts of Tim Loughton on enabling white couples to adopt black & Asian children including the Telegraph. The DfE press release is here. Part of the reason for revisiting this issue is that adoptions have dropped by 15%. The charity Adoption UK has responded saying that it is actually age at placement is the most important factor determining whether children are found adoptive placements (but not disagreeing that trans racial placements may be appropriate). The figures do show that 1 in 5 children waiting for adoptive placements come from ethnic minorities and they typically wait 3 times longer than white children. The Telegraph also carried a piece linking the fall in numbers to the opening up of adoption to same sex couples (& the consequent closure of Christian adoption agencies). I can't help thinking that delay in finalising care proceedings caused by the upsurge in caseload must be contributing to the overall drop in numbers.

Martin Nairey of Barnados makes another plea for early intervention to ensure the best success for adoption.

Tracy McVeigh makes her plea for better support for adoptive parents picking up concerns recently expressed by Adoption Uk and the Observer reinforces the message in an editorial today.

A Christian couple are asking the High Court to rule on the question of whether they should be barred from fostering because they would be unable to be on-message about homosexuality as the Guardian and the Mail. The judgment does not seem to be available yet.

A judgment which is available on the main site is M (A Child) 2010 EWCA Civ 1160 in which a mother successfully appealed an order refusing her leave to oppose an adoption. She was able to show change in circumstance based on the improvements in her life. Ward LJ held that the next question for the court to consider was whether it was in the best interests of the child for a case for opposition to be heard when it was not hopeless.

Obviously all cases will be different, but an application to oppose should involve an exercise of assessing to some extent the prospects of success of the opposition. But it should be viewed more perhaps -- and this is the issue the court will have to decide -- in terms of whether this is an utterly hopeless case, or whether this is a case which is at least arguable in the sense that, even if there is not a better than even chance of success, there is some realistic prospect of success in much the same way as we decide whether to grant permission or not.

He also took the opportunity to emphasise the importance of full judicial consideration of the welfare checklist, particularly the potential harm to a child of being permanently separated from birth family.

Also on the main site is T & M v OCC & C (2010) EWCA 964. The facts are particularly unusual involving a lesbian couple from Nicaragua & the USA who had adopted a child each when living together in a family unit of 4 because adoption as a couple had not been legally possible in Nicaragua. By the time their application to adopt one of the children jointly in this country was heard they were living separately though very close by because of the behavioural issues of one of the children. Hedley J held that they could still be described as "living as partners in an enduring family relationship."

Here the parties live in a committed and exclusive relationship recognised by our family law and spend significant time as a unit of four. The background to the case and the shared care arrangement is entirely consistent with the concept of a family of four. In my judgment, the parties in this case bring themselves within the ambit of Section 144 (b) and thus Section 50 of the 2002 Act. They are thus entitled to make a joint application to adopt C.

Technology round up

Nick Holmes over at Binary Law laments the Social Meeja Blues and I have to confess to occasionally feeling a bit overloaded by technological possibilities and I will do a post soon on the most useful resources for family lawyers and those which can help you keep up without sinking. In the meantime I thought I would do a round up of some interesting snippets on technology and law.

The Bar jumps into the modern age with tweets from the Bar conference & Inner Temple tweets too.

The Fourth Emergency Service has set up an online legal business and the Guardian reports that more than half of firms surveyed expected to lose work to these sorts of legal providers. At the moment the actual legal business is referred on but as the Guardian says the AA is looking ahead to the now fairly near future when non-lawyers will be able to invest in firms directly.

Facebook is cited in almost 1 in 5 online divorce petitions the Telegraph reported some time ago & Matthias Mikkelson reports on his blog about peak break up times according to status updates on Facebook.

The American Academy of Matrimonial Lawyers say that 81% of their members have used evidence from a social networking site in the last 5 years. I am finding a growing number of cases involving information from Facebook in particular - indiscreet references to heavy drinking and hangovers, threats of violence, comments on what happened or will happen at court, new boyfriends etc. Top tip to our clients: make sure that you block your ex and look carefully at the discretion of your mutual friends or just DON'T POST IT. Along the lines of don't do anything you wouldn't like photographed. Similar advice from Scottish Lawyers Gibson Kerr in relation to Twitter: resist the bitter twitter urge!


There are a number of facebook pages dealing with family law issues including this one on Divorce and Divorce Online. Family Law Week has its own facebook page but so far not much on it. There are also a number of campaign groups such as Social Services: the stolen children - you can find these groups by using the search facility - try family law, care proceedings, social services, parental alienation.

The same is true of You Tube which has a number of short films particularly covering the secret court debate for example, Bill Maloney reports on his attempts to get into the Inner London FPC. The Government is also making use of You Tube - for example, Tim Loughton announced Eileen Munro's review of child protection

Skype contact has recently been ordered in a US case
and is obviously a useful way of facilitating contact in relocation cases or case where parents live at some distance from one another. See this comment piece from Anita Ramastry, Professor of Law, on Parenting in Cyberspace in which she sounds a note of caution that contact using new technology should not be seen as providing an adequate substitute for face to face contact.

This Online abuse investigation report on Community Care warns of the dangers that still linger long after an initial posting (in this case of photographs).

All that said do go and see the film The Social Network - it's fab and some good litigation scenes. Interesting commentary by Zadie Smith about it being a film about 2.0 people made by 1.0 people. And if you don't know what I mean you are definitely a 1.0 person! And now even the most obvious 1.0 person, Her Majesty the Queen, will have a facebook page from tomorrow.