Some of our readers may have noticed that our posting has been a little less frequent than usual, so we’re just checking in to say please don’t worry, we’re still here.

The Summer has been extremely busy, both in terms of our work and the adjustments we’ve had to make during lockdown. During this time, as you know, we posted regularly as there were a lot of important developments to cover, but we’re now going to take a very short break.

All this means is that our site may not be updated as frequently over the next seven days, but we are still here to help with queries, comments and pro bono family law support.

Wishing everyone a restful Summer, and we’ll see you as we hit the ground running in September.

Natasha xxx

The latest child welfare items that should be right on your radar:

• Former councillor boasted of being ‘paedo master trainer’ as he gave out advice on abusing children
• ‘It was utterly devastating and cruel what happened at Shirley Oaks’ – child abuse survivor Emma Lewis on the aftermath of the Independent Inquiry into Child Sex Abuse
• Madeleine McCann prime suspect reportedly sexually abused five-year-old girl

The latest child welfare items that should be right on your radar:

• Adoption charities taking over Kinship carer service is ‘slap in the face’ (Scotland)
• 20 adoption orders granted via Zoom (Ireland)
• Government must make registration of sharia marriages mandatory, report says (England and Wales)

Robin Tolson, a family court judge who sparked a national outcry for telling a rape victim in court she was responsible for her assault, has stepped down. The comment was made in December 2019, during a hearing for the case.

The development comes after several MPs said the judge should be barred from handling domestic violence and rape cases.

Tolson announced his departure in an email he sent to Central Family Court users, calling the job “thankless’, and said he made the decision with “considerable regret”. He also stressed that he had stepped down for personal reasons, and because he wanted “a life better suited to his personal circumstances.”

In the statement, he said:

“Having been instrumental in having the post of DFJ [Designated Family Judge] re-graded to senior circuit judge level, I decided late last year not to apply when it was re-advertised. I must stress this was for personal reasons and had nothing to do with any other factor. Although the president was kind enough recently to stress his confidence in me as DFJ here, the role is arduous and, at times, thankless; and I desire a life better suited to my personal circumstances. It is as simple as that.

You the court users will glimpse, perhaps more than glimpse, some of the difficulties we – judges and staff alike – have faced here in court and behind the scenes at the business end of a family justice system which, if I may offer a personal view just for a moment, seems increasingly incapable of meeting the needs of its users: not enough time or money for the necessary and deserving; and a tendency to concentrate resources on the unnecessary, complicating the simple and pandering to agendas which are at odds with reality or a diversion at best.”

Tolson’s judgment in a case involving a contact order for a child garnered national media coverage at the beginning of the year when he incorrectly told a mother who had said she had been raped, that the assault by her abusive husband hadn’t constituted rape because she had not fought back.

The comment, along with several other flawed interpretations of law and process by the judge led the High Court to conclude that Tolson’s views were obsolete and that his handling of the case was “so flawed as to require a retrial”. Ms Justice Russell allowed the case to go to appeal, and commented in her reasoning that Tolson’s views were outdated.

Members of Parliament, including Louise Haigh and Tulip Siddiq condemned the judge’s views on rape, while a letter signed by 130 lawyers and campaigners called for immediate action to ensure family judges were properly trained to deal with rape cases.

Tolson will leave his judicial position on 21st August.

Useful Links:

• Family judge steps down from ‘thankless’ leadership role
• Male judge who was slammed for telling a woman she wasn’t raped because she didn’t fight back ‘makes the same ruling again in a second case’
• Angry litigant jailed for flooring judge with a flying rugby tackle

The government has launched an investigation into judicial reviews to see if the process needs reforming. The Ministry of Justice says it is part of a plan to try to strike the right balance between citizen’s rights and effective governance.

Judicial reviews are used to look at the legality of a decision, action or failure to act by a government body while exercising its functions. A review decides whether laws have been correctly applied and the right processes followed during the life of a case.

Judicial Review can be used in family cases, and typically involves decisions made by Child Services Departments in local authorities.

A review of the process comes after the current government was defeated twice in the Administrative Court, on matters relating to Brexit (Article 50 and the prorogation of Parliament).

Those who argue in favour of restricting judicial review say there is evidence of the judicial review process being exploited to overturn ministerial decisions. Those against adjusting the balance to make it harder to apply for a review say the process is a vital part of the system which ensures legal scrutiny of government decisions.

The investigation will be chaired by Lord Edward Faulks QC, and five additional panel members, none of whom specialise in family law matters.

Any recommendations made during the investigation will be considered by the Minister for the Cabinet Office, Michael Gove.

The investigation will consider whether to write the terms of a judicial review into law.

Of significance is the investigation’s remit to consider public law control of all UK wide and England & Wales powers that are subject to it whether they are statutory, non-statutory, or prerogative powers.

This could lead to a tightening of Judicial Review, which could ultimately prevent specific types of claims from being heard in the Administrative Court. While the investigation appears to be geared towards an analysis of how the process is being politicised, it remains unclear how the probe and any future recommendations might affect family law cases.

The Ministry of Justice’s press release lists the considerations of the investigation as follows:

• Whether the terms of Judicial Review should be written into law
• Whether certain executive decisions should be decided on by judges
• Which grounds and remedies should be available in claims brought against the government
• Any further procedural reforms to Judicial Review, such as timings and the appeal process

We recommend reading the terms of reference and the notes under the terms for a clear picture of what the investigation will explore, as some of the terms are potentially controversial.

The press release says the panel will report back later on in the year, though it’s not clear from the statement whether a public report will be produced or whether the panel will be reporting back to a government body or Minister to update them on their progress.

Links:

• Press Release
• Terms of Reference for the Review
• Civil Justice Data (With Judicial Review section)

The latest child welfare items that should be right on your radar;

• New App pulls together child welfare data on looked after children (Beta phase)
• Researchers reveal patterns of sexual abuse in religious settings
• Gloucestershire man jailed for 14 years for abusing children

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:

• Are Children In Care Being Denied Access To Their Birth Parents During the COVID-19 Outbreak? (Podcast)
• Pioneering Research on Contact with Children in Care During the COVID-19 Outbreak
• Face to Face Contact For Children and Birth Parents Allowed Under Lockdown Regulations

The latest child welfare items that should be right on your radar:

• Less than half of those put on trial in Greater Manchester over child abuse images were convicted last year (England)
• NY Gives Child Abuse Survivors More Time to File Suits Due to COVID Crisis (US)
• Petition opposing the appointment of Adoption UK (Scotland) and Adoption and Fostering Alliance Scotland (AFA and AUKS) to run the Scottish Kinship Care Advice Service(Scotland)

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.

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 almost 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:

• Big Data Isn’t Ready To Predict Child Abuse.
• Court of Appeal To (Not-So) Live-Stream Family Law Cases
• Master of the Rolls: 31 July 2020