Family Case Tests Children’s Right To Contact With Birth Parents During Lockdown

In what may be the first case of its kind, a decision by a judge to deny a mother’s request for contact with her children while in care during lockdown has been set aside by the Court of Appeal.

The children, aged 7, 3 and 1, had been taken into care and were living with their grandmother temporarily, after the youngest child had sustained a leg injury which was suspected to have been non accidental, while in the care of their mother.

Before lockdown, which began in March, the children had face to face contact with their mother three times a week for two hours. The local authority then decided to shut its contact centres, leading to the family having indirect telephone and video contact.

Two of the children were noted to have found these forms of contact distressing.

When the mother asked for face to face contact to resume, the local authority refused, citing government guidance as the reason, and so the mother made an application to the family court for contact.

The judge dismissed the application during a telephone hearing, which had been enabled during lockdown to allow some cases to be heard, also citing government guidance on the issue.

The mother appealed.

By the time the case was heard in the Court of Appeal, face to face contact for the family had resumed, as lockdown measures had eased during the life of the case, but the mother’s counsel asked the Appeal Court judges to hear the case as it held wider significance for the child protection sector.

The judges agreed to hear the appeal, and took the view that the lower court judge had made several mistakes in his judgment, including not assessing whether the contact offered had been reasonable and not making the children’s best interests the paramount consideration.

The judgment goes on to explain that courts must look at the children’s circumstances, resources available to local authorities and have a proper grasp of current government guidelines.

Researching Reform predicted cases of this nature would be filed during lockdown after the child protection sector expressed wide-spread confusion over what local authorities were required to do while COVID-19 safety measures were in place.

We urge parents to read the guidance, and to be aware of their rights.

You can access the judgment here, which is very much worth a read.

Further information:

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Public Invited To Family Justice Council’s Next Meeting

The Family Justice Council (FJC), a monitoring body which also works to improve the family justice system, has opened its next meeting to the public.

The Council advises on reforms inside the family courts and is headed up by the President of the Family Division, Andrew McFarlane.

Its membership is made up of “appointed” members, “ex-officio” members and “executive committee” members, and includes lawyers, social workers, medical professionals and judges. The Council can also launch Working Groups to investigate specific areas within the family justice system, and currently has six Working Groups.

The next meeting, which takes place in October, will be held online. The Council has invited members of the public to attend to see how the body works first hand, and will include a Q&A session.

The announcement on the Judiciary’s website says that places will be allocated “to try to ensure a diverse, representative audience.”

That though may not be possible, as the Council will be using MS Teams software to host the meeting. If you’re considering attending, let us know if this might be an issue for you, and we will pass your feedback on to the FJC.

The meeting will be held on 19 October 2020, from 11.00am until 2.00pm. Anyone wishing to attend can apply for a place by filling out the form on this page. The deadline for submitting requests to attend is noon, on 14 September 2020.

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New Master of The Rolls Could Shake Up Family Courts

Sir Geoffrey Vos has been announced as the new Master of the Rolls, and will replace Sir Terence Etherton, who steps down on 10th January, 2021. The announcement was made by the Prime Minister’s Office.

The Master of the Rolls is a Court of Appeal judge, who is also tasked with being the President of its Civil Division, and gives advice on civil justice matters and rights of audience. The Master of the Rolls is the second most important judicial post after the Lord Chief Justice.

The announcement could lead to changes in the family courts. Vos has a reputation for being outspoken and passionate about court reform, and is particularly keen to broaden diversity in the legal sector and introduce more technology into the court system.

At a Law Society lecture on the future of law in 2018, Vos predicted that technology would revolutionise the way the court system worked and trained lawyers:

“Social lawyers will need training in dealing with people, in social science, in civil rights, in what causes crime and family break-up rather than hard-edged law.

Human rights lawyers will need training in the relationships between citizens and between the citizen and the state.

Business lawyers will… need to understand the ever-more-complex regulatory regime that affects commercial life online: this will ultimately affect smart contracts, digital ledger technology and AI.”

Historically, family courts have been slow to implement technological advances. However, the coronavirus pandemic has forced the system to use computers and virtual platforms increasingly, in order to ensure that documents are filed in time and hearings can take place during lockdown.

The wide technological variations across the country that remain today, as some courts have virtually no online access while others have completed several virtual cases, will be a challenge for Vos.

And unlike commercial courts, which Vos is more familiar with, the use of tools like AI and predictive software highlight some very important human rights and child welfare policy questions, which complicate the modernisation of the family courts.

The current Master of the Rolls, Sir Terence Etherton, was involved in the drive to push out remote hearings for family cases during the lockdown, and we may see Vos developing this initiative further when he takes over next year, with or without lockdown measures in place.

The Court of Appeal was also set to live stream family cases in an announcement made by the Ministry of Justice in March, but to date no hearings for these kinds of cases appear to have been streamed in the Court.

We wish Vos luck.

Further reading:

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Tuam Baby Deaths – Was It Genocide? Voice of the Child Podcast

In 2014, journalist Alison O’Reilly broke a story about a mother and children’s home in Tuam, Ireland, which had stored the remains of 796 children on its grounds.

The Bon Secours Mother and Baby Home ran from 1925 to 1961, and was part of a wider policy to ‘re-home’ children born to unmarried mothers, who were considered by the state to be unable to care for their children.

The story was reported around the world.

Six years later, on July 27th, another story involving more than 1,000 children who had died, this time at Sean Ross Abbey Mother and Baby Home in Roscrea, Ireland, was published.

Alison talks to the Voice of the Child about the growing number of children who passed away in these homes, and how she came to break the story about the Tuam baby deaths.

We discuss whether the mass deaths could be classified as genocide, as more information emerges about how the children died.

She also outlines what she thinks of Ireland’s care system today, why adoption and foster care policies need to change, and why she feels the voice of the child is still not at the heart of social work.

You can listen to the podcast here. 

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President of the Family Division Hospitalised

The President of the Family Division, Andrew McFarlane, has been admitted to hospital, according to a judge overseeing a case.

In February, McFarlane confirmed that he was on a waiting list for open heart surgery,  in a statement on the Association of Lawyers for Children’s website. The President was due to undergo surgery in the Spring, but it is likely that the procedure was delayed due to the Coronavirus pandemic, as hospitals were largely closed to patients who were not infected with the virus.

Mr Justice Williams passed the remark in a jugdment for a case which was intended to be heard by McFarlane. Williams said the case had been reallocated to him as a result of the President being admitted to hospital.

Williams’ judgment, which has been published on the free legal database BAILII, explains that he had to attend hearings for the case on 9th and 10th July, which could suggest that the President was already in hospital, or recovering at home.

If the President has undergone open heart surgery, he is unlikely to return to work for several months while he recovers from the procedure.

In his absence, he has appointed Senior Family Division Liaison Judge, Mrs Justice Theis, and Justices Keehan and Cobb to assist her. Justice Hayden has been asked to act as Vice President of the Court of Protection, and Justice Mostyn has been appointed as head of the Financial Remedy Court.

Many thanks to Peter Davies for alerting us to the President’s statement.

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Birth Family Contact, Cults, and Family Judges Caught in Camera

Some interesting child welfare developments were published this week, so we’ve rounded up a selection of cases and research that offer important insights.

15 local authorities offer a snapshot of how they coped during Lockdown

A report by King’s College London offers a curated look at how some councils coped during lockdown, including how they implemented contact with birth parents, foster care duties and care leaver support.

The briefing paper confirms that most contact sessions with birth parents were virtual during lockdown, despite the government making it clear that face-to-face contact should continue wherever possible.

The researchers go on to mention the incorrect Barnardo’s stat that children needing foster care had risen by 44% during the pandemic.

Unsurprisingly, local authorities in the study said they had not experienced this increase, with the majority saying that the number of children in care had remained stable and in some cases fallen dramatically.

Barnardo’s assertion was quashed by Fact Check, and we reported on this at the beginning of July, so we invite King’s to correct their documents.

There is a “Lessons for the Future” chapter, but it is incomplete as there is no data on how many children and care home staff were infected with the virus, and how those outbreaks were dealt with, included in the report.

Do Memories of Abuse Hurt More Than Actual Abuse?

New research by King’s College London and City University of New York tried to find out whether memories linked to childhood abuse caused more psychological damage to survivors than the abuse itself.

The study suggests that whether you have been abused is less important to your future adjustment than whether you have subjective memories of abuse.

It’s important to add that the data was unable to confirm a causation link so that it could not say with absolute certainty that those subjective memories were the cause of any psychological conditions survivors experienced in later life.

Even Walls Have Ears – or Microphones

A family court judge was caught making biased, non-evidence based remarks about a mother. Her comments were broadcast accidentally on a remote court link which she had failed to turn off.

The judge accused the mother of pretending to feel unwell during the hearing, and said she had used ‘every trick in the book’ to avoid answering difficult questions.

Mrs Justice Judd was forced to step down after the Court of Appeal ruled that the leaked comments showed that the judge had formed a biased opinion of the mother on the basis of something that could have been asked about during the proceedings by the judge, but had not.

The case will now be sent back to the family division, where a new judge will be appointed to oversee the case.

My Way or Your Way?

Another controversial case has highlighted the fine line between judicial bias and the best interests of a child, this time featuring a mother’s adherence to a cult which the court said was alienating the child from her father, who did not follow the same practices. There were no concerns about the mother’s ability to care for her daughter.

This is an extremely contentious case. The cult has not been banned, and while its practices are not based in science and have received some concerning criticisms, it continues to run freely and legally in the UK.

At its core, the judgment says that two parents with differing points of view create alienation to varying degrees, and that this should lead to a child being re-homed with the parent they identify with the least. It also leaves no room for the possibility that a child may change their mind and grow out of a way of life in the future.

Removing children from parents with distinctly different views on life is a slippery slope and one our judges need to watch.

On a separate note, the judgment makes reference to Andrew McFarlane, the President of the Family Division being hospitalised, which does not appear to have been reported in the media. The comment was made during an explanation in the judgment about why the case was reallocated to another judge.

Thank you to Ian for alerting us to this story.

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