Event: Child participation in family law

Welcome to another week.

A free online event looking at children’s rights in family law and how to protect them marks the launch of an international handbook on child participation in family law cases.

The July press release for the handbook says:

“The handbook offers an analysis of human rights instruments, to which UCERF researcher Charlotte Mol contributed, and examines the pedagogical aspects of child participation.

Child participation in private international law and in national proceedings on divorce, separation, custody and child abduction is the focus.

Experts from 17 countries, including UCERF researchers Wendy Schrama and Christina Jeppesen-de Boer, take stock of national law and reflect on possible improvements.”

The launch features several speakers, including: Professor Ann Skelton, UNESCO Chair in Education Law in Africa at the University of Pretoria, Rotating Honorary Chair of Enforcement of Children’s Rights at the Department of Child Law of the University of Leiden, and Member of the UN Committee on the Rights of the Child and; Mrs. Ewa Kopacz, European Parliament Coordinator on Children’s Rights and Vice-President of the European Parliament.

The event, which takes place in October, has been organised by the handbook’s editors: prof. Mariëlle Bruning (Leiden University), dr. Marilyn Freeman (ICFLPP and Westminster Law School), prof. Wendy Schrama (UCERF, UU) and prof. Nicola Taylor (University of Otago).

You can register to attend this event by contacting the event’s organisers at i.n.b.d.wilbrink@uu.nl

The online launch is on 15th October, from 10am to 12.30pm (we assume European time, so 9am to 11.30pm UK time).

The International Handbook on Child Participation in Family Law is 99 Euros, a price point aimed at legal professionals and law firms. However if you would really like a copy, please let us know and we will contact the publishers to ask if they might consider donating some copies.

Thanks to Global Child for posting this event, and the event’s schedule below, on Twitter.

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The Buzz

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Family Procedure Committee wants “diverse and representative” audience for online event.

The Family Procedure Rule Committee, (FPRC) the body tasked with developing rules used in family law proceedings, wants to see a “diverse and representative” audience for its annual open event this year.

The event is an online meeting where attendees can watch how the rule making process works and put questions to the Committee.

While the web page on GOV.UK’s site for the event describes the attendance sheet for the conference as an invitation, it is actually an application form to make a request to attend the meeting.

The form asks for peoples’ names, the organisation they represent, the “nature of their interest in the committee”, and any questions the individual would like to ask the Committee. The form also says “invitees will be selected to try to ensure a diverse and representative audience,” without offering any additional detail as to who that might include.

If you are interested in seeing how the system works in this context, or you just want to challenge the Committee on the rules and their effectiveness, you can apply by filling out the form which can be found here.

Those accepted to attend the event, which is free, will watch the FPRC hold a meeting as they carry out their business but will not be able to interact with the committee as they discuss their agenda.

Individuals who have sent in questions will be notified in advance if their questions are selected to be put to the committee and will be allowed to ask their questions to the committee direct after the business portion of the meeting has come to a close.

If you do not want to fill out the form or cannot, you can reach out to the FPRC Secretariat direct by email: FPRCSecretariat@justice.gov.uk

Closing date to apply to attend the event is 7 October, 2021.

The event takes place on Monday 1 November from 10am to 1.30pm, and will be launched on MS Teams.

Open event: Domestic abuse and the treatment of mothers and children in the family courts

An online event taking place on Thursday will highlight the way family courts in England and Wales handle domestic violence cases on the ground.

Despite ongoing policy and law-based efforts in recent years to raises awareness about domestic abuse and how it affects children and families in the UK, family courts have not managed to provide a uniform and competent service to tackle this form of violence.

The free online event has been organised by Support Not Separation — an organisation run by Legal Action for Women — and Barnet Women’s Equality Party, and is titled “Domestic abuse & the treatment of mothers & children behind the closed doors of the Family Court.”

The event will be chaired by Christine Dean, the deputy leader of the Women’s Equality Party. The page for this event says Dean has more than 25 years’ experience as a family lawyer.

Panellists include Nihal Ates, a member of Solace Women’s Aid, Barnet, which provides support to survivors of domestic abuse in the borough and Anne Neale, a member of Legal Action for Women, an organisation which describes itself as “a grassroots anti-sexist, anti-racist legal service for all women.”

The event is taking place September 23, 2021, from 7:00pm to 8pm.

You can book your ticket here.

For questions about the event, you can email Olivia and Lisa at: barnet@womensequality.org.uk

The event is free to attend, but the booking site says donations are welcome.

Ministers and Children’s Policy – Who’s Who in 2021 (Take Three)

Welcome to another week.

UK Prime Minister Boris Johnson has reshuffled his cabinet, with the first appointments announced on 15 September.

Of significance for the child welfare sector, are the appointments of Dominic Raab as the new justice secretary, Sajid Javid as secretary of state for health and social care, Nadhim Zahawi as education secretary, Thérèse Coffey as minister for Work and Pensions and Michael Gove as housing, communities and local government minister.

This is the list so far:

Prime Minister, First Lord of the Treasury, Minister for the Civil Service, and Minister for the Union

  • Rt Hon Boris Johnson MP

Ministry of Justice

  • Deputy Prime Minister, Lord Chancellor, and Secretary of State for Justice – Rt Hon Dominic Raab MP
  • Minister of State – Kit Malthouse MP (jointly with the Home Office)

Law Officers

  • Attorney General – Rt Hon Suella Braverman MP

Department of Health and Social Care

  • Secretary of State for Health and Social Care – The Rt Hon Sajid Javid

Department for Education

  • Secretary of State for Education – Nadhim Zahawi MP
  • Minister of State – Michelle Donelan MP

Department for Work and Pensions

  • Secretary of State for Work and Pensions – Rt Hon Dr Thérèse Coffey MP

Ministry of Housing, Communities and Local Government

  • Secretary of State for Housing, Communities and Local Government – Rt Hon Michael Gove MP

Home Office

  • Secretary of State for the Home Department – Rt Hon Priti Patel MP
  • Minister of State – Kit Malthouse MP (jointly with the Ministry of Justice)

HM Treasury

  • Chancellor of the Exchequer – Rt Hon Rishi Sunak MP
  • Chief Secretary to the Treasury – Simon Clarke MP

Cabinet Office

  • Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office – Rt Hon Stephen Barclay MP
  • Minister of State – The Rt Hon Lord Frost CMG
  • COP26 President – Rt Hon Alok Sharma MP
  • Minister without Portfolio – Rt Hon Oliver Dowden CBE MP
  • Minister of State – Nigel Adams MP

Ministry of Defence

  • Secretary of State for Defence – Rt Hon Ben Wallace MP

Foreign, Commonwealth and Development Office

  • Secretary of State for Foreign, Commonwealth and Development Affairs, and Minister for Women and Equalities – Rt Hon Elizabeth Truss MP

Department for International Trade

  • Secretary of State for International Trade, and President of the Board of Trade – Rt Hon Anne-Marie Trevelyan MP

Department for Business, Energy and Industrial Strategy

  • Secretary of State for Business, Energy and Industrial Strategy – Rt Hon Kwasi Kwarteng MP

Department for Digital, Culture, Media and Sport

  • Secretary of State for Digital, Culture, Media and Sport – Nadine Dorries MP

Department for Environment, Food and Rural Affairs

  • Secretary of State for Environment, Food and Rural Affairs – Rt Hon George Eustice MP

Department for Transport

  • Secretary of State for Transport – Rt Hon Grant Shapps MP

Northern Ireland Office

  • Secretary of State for Northern Ireland – Rt Hon Brandon Lewis CBE MP

Scotland Office

  • Secretary of State for Scotland – Rt Hon Alister Jack MP

Wales Office

  • Secretary of State for Wales – Rt Hon Simon Hart MP

Office of the Leader of the House of Lords

  • Lord Privy Seal, and Leader of the House of Lords – Rt Hon Baroness Evans of Bowes Park

Office of the Leader of the House of Commons

  • Lord President of the Council, and Leader of the House of Commons – Rt Hon Jacob Rees-Mogg MP

Whips – House of Commons

  • Parliamentary Secretary to the Treasury (Chief Whip) – Rt Hon Mark Spencer MP

The following have left the government:

  • Rt Hon Gavin Williamson CBE MP – previously Secretary of State for Education
  • Rt Hon Robert Jenrick MP – previously Secretary of State for Housing, Communities and Local Government
  • Rt Hon Robert Buckland QC MP – previously Lord Chancellor, and Secretary of State for Justice

For a breakdown of all departments and which ministers head them, click here. 

You can also access previous cabinets, to compare and contrast, or just satisfy curiosity, below:

Ministers in 2016

Ministers in 2017

Ministers in 2018

Ministers in 2019

Ministers in 2020

Pioneering new law places children’s voices at the heart of the child protection system in Australia

A Bill to reinforce children’s rights and make sure they can participate meaningfully in decisions being made about them inside Queensland’s child protection system has been introduced.

The new law will amend the Child Protection Act 1999 to reinforce children’s rights within the system’s legal framework, strengthen children’s voices in relation to decisions that affect them, and improve the regulation of the care system.

Minister for Children Leanne Linard said:

“During consultations held in regard to this legislation, young people in the child protection system told us they want to be heard and need to be able to participate in decisions made about their lives. I can assure them that we have listened.”

“We have introduced the Child Protection Reform and Other Legislation Amendment Bill 2021, which will strengthen the Act to ensure children will be genuinely empowered and supported to participate in decisions about their lives and the child protection system,” she added.

The legislation makes Queensland the first jurisdiction in Australia “to acknowledge in legislation the need for children to have a voice where they must be listened to, engaged with and where active attempts must be made to understand their views,” Linard said.

The press release for the new law does not provide a draft of the Bill, which can be found on Queensland’s Parliamentary website.

Interesting clauses and amendments include:

  • Clause 8 (2): a child has the right to express the child’s views about what is, and is not, in the child’s best interests.
  • Clause 11, Obtaining Children’s Views:
    • Unless a provision of this Act states otherwise, the person must ensure the following in relation to the exercise of the power or the making of the decision-
    • (a) the child is given meaningful and ongoing opportunities to participate;
    • (b) the child is allowed to decide whether or not the child will participate;
    • (c) the child is given information that is reasonably necessary to allow the child to participate;
    • (d) the child is advised about what help is available to the child;
    • (e) the person understands and considers, or makes a genuine attempt to understand and consider, any views expressed by the child;
    • (f) the child is allowed to express views that are different to views previously expressed by the child;
    • (g) communication with the child is carried out in a way that is appropriate for the child;
    • (h) a record of views expressed by the child is made that, if appropriate, uses the child’s words.
  • If the child decides to participate in the exercise of the power or the making of the decision, the person must ensure that—
    • (a) the child is allowed to decide how the child will participate; and
    • Examples of how a child may decide to participate—
      • communicating verbally or non-verbally
      • communicating directly with a particular person
      • communicating indirectly through a trusted person, including, for example, a member of the child’s family or family group, the child’s carer or the public guardian
      • communicating indirectly through an independent person, including, for example, the child’s legal representative or health practitioner
      • communicating indirectly through a written statement or an audio or video recording
      • communicating indirectly through an expert in a report prepared by the expert
      • participating separately from particular persons
    • (b) the person listens to and engages with, or makes a genuine attempt to listen to and engage with, the child; and
    • (c) the child is given help to participate if the child requires it.
  • If the child decides not to participate, or is otherwise unable to participate, in the exercise of the power or the making of the decision, the person must ensure—
    • (a) the person obtains, or makes a genuine attempt to obtain, the views of the child in another way that is appropriate for the child; and
    • Example of a way to obtain a child’s views that may be appropriate—
    • a report prepared by a psychologist for the child
    • (b) the child’s decision, or inability, does not operate to the detriment of the child in relation to the exercise of the power or the making of the decision

Adoption order made without mother present at the hearing “not a fundamental breach of natural justice”

An adoption order made without the mother being physically present at the hearing has been pushed through. Although the High Court acknowledged that the making of the order amounted to a procedural irregularity and should never happen again, it went on to say the error did not constitute a “fundamental breach of natural justice.”

The reasoning used by the court — and which falls in line with the government’s very silly and irrational adoption policy (that it is for life, just because someone has said so in court and not because it is right for the child) — was that the mother knew the hearing was taking place, would not have been able to argue against the adoption order because she did not have the required permission to do so, and could not have prevented the adoption order from going through.

Lexis Nexis offers a very helpful summary of the case. We are reproducing an extract from that summary below for children, parents and families, but we highly recommend going to the source if you are a lawyer.

“In June 2019, following a finding that injuries sustained by the younger of three children had been inflicted by one of the parents, all three children were made the subject of final care and placement orders. In October and in January 2020, adoption applications were filed in respect of the youngest child and the two older children, respectively. In February, the parents’ applications for leave to oppose the adoptions were dismissed. In March, permission to appeal against that order was refused.

The mother was given notice of the hearing of the adoption application, which was to take place on 6 April. At 14.14 on 1 April, the adoption social worker sent a text message to the birth mother informing her that ‘due to the coronavirus outbreak [the] hearing [would] take place remotely by telephone’ and giving instructions for attendance by telephone. At 15.17 the same afternoon, however, the adoption social worker sent a further text message to the mother stating that she had ‘been informed by the court that HHJ Booth [was] excusing all parties from attending the hearing on Monday.’

On 6 April, HHJ Booth made the adoption order in respect of the three children in the absence of the mother.

In December, the Family Division dismissed the mother’s application to revoke the adoption order made by HHJ Booth. 

The mother appealed against the judge’s dismissal of the application to revoke the adoption order. “

The threshold for a “fundamental breach of natural justice” in adoption cases is weighted far too much in favour of the order being made for the order’s sake. The madness of this can be seen no better than in the now infamous Webster v Norfolk County Council case, where the parents were absolved of hurting their children and whose children wanted to return to their care, but were refused reunification by the court because “adoption is forever.”

The idea behind this irrational tilt is that adoption in these cases is seen as the only way to give a child guaranteed stability and love, but in the real world that means nothing to a child who is unlikely to be entering a home that can cater to his or her needs after the trauma of separation and most likely a long stint in care with all the damage that does. Issues of identity and self esteem will follow, making adoption a minefield for delicate, developing brains.

While adoption only works for a very small number of children, the fundamental issue is that our child protection system still does not work well enough to make sure that other, more viable and sophisticated options are considered first, such as initiatives that actively keep families together and children safe in their care. These models exist, and yet the system hardly every uses them.

Until we get to a point where the government and the care system understands we need to minimise damage in meaningful ways, rather than put a rubber stamp on it and hope for the best, here is the case law underlining our woefully inadequate government stance on adoption and setting aside adoption orders:

MacFoy v UAC  [1961] UKPC 49,  considered

B (adoption: jurisdiction to set aside), Re [1995] 3 All ER 333, [1995] 3 WLR 40 considered

Re K (Adoption and Wardship)  [1997] 2 FLR 228,  considered

Webster, Re; Webster v Norfolk County Council [2009] EWCA Civ 59, [2009] 2 All ER 1156, [2009] All ER (D) 106 (Feb) considered

Re Human Fertilisation and Embryology Act 2008 (Case O) [2016] EWHC 2273 (Fam), [2016] 4 WLR 148, [2016] All ER (D) 45 (Sep) considered

Re J (A Minor) (Revocation of Adoption Order)  [2017] EWHC 2704 considered

Re J (Adoption: Appeal) [2018] EWFC 8, [2018] 4 WLR 38 considered

Re A (children) (remote hearing: care and placement orders) [2020] EWCA Civ 583, [2020] All ER (D) 14 (May) considered

HX v A local authority and others [2020] EWHC 1287 (Fam), [2020] All ER (D) 16 (Jun) considered

AX v BX and others (Revocation of Adoption Order)  [2021] EWHC 1121,  considered

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