Welcome to the Roundup, where we correct, clarify and comment on media reports of family court cases, explain and comment on published family court judgments and highlight other transparency news.
MEDIA COVERAGE OF FAMILY LAW MATTERS
The Times (£), The Guardian and Legal Futures were among many who reported the unfortunate case involving Vardags solicitors, who had obtained a final order of divorce for a client in error without her instructions or authority. It seems that a member of the firm when using the online divorce portal had intended to apply for a final order of divorce for a different client, but had inadvertently opened the electronic case file in the case of ‘Williams v Williams’ (in which they were advising the wife) and proceeded to apply for a final order. In his judgment in Williams v Williams [2024] EWHC 733 (Fam) at [53], Sir Andrew McFarlane, President of the Family Division, refused an application to set aside the accidental order, saying ‘there is no reported authority where a decree absolute or final order has been set aside in circumstances of complete procedural regularity. There is no authority establishing that a final order made in such circumstances is to be considered voidable, let alone void.’ He added that ‘the court should be very slow to open up a potential third stage in divorce proceedings where, post-final order, a party can come back and say that the application for the order was made by mistake. As the authorities make clear, a final order made without procedural irregularity should stand for all the world.’ The media coverage was generally accurate but newspaper reports made a point of describing the firm’s founder, Ayesha Vardag, as the ‘diva of divorce’, which must presumably add to embarrassment over the error.
The Bureau of Investigative Journalism (TBIJ) has recently published further reports by Hannah Summers under its Family Court Files project. Under the title Psychologist’s evidence used to ‘ramp up’ allegations of parental alienation she explains the case of P v M & Ors [2023] EWFC 254, in which judgment was given back in December, after making an application for a transparency order to the family court in Bristol. Summers writes: ‘The father, described by the judge as “hostile”, had accused the mother of “parental alienation” — where one parent is said to have manipulated a child into rejecting the other parent. The controversial concept was repeatedly referenced in a report submitted by Melanie Gill, a psychologist who does not belong to a professional regulator. Unregulated psychologists are entitled to give expert evidence in the family courts. The court found the father’s allegation of parental alienation, supported by Gill’s report, to be untrue. There was a linked report in the Law Society Gazette online and a ‘special investigation’ double spread in the print edition.
Another report for TBIJ by Summers, Abusive father’s attempts to manipulate family courts concerned the case of Re GB (Parental Alienation: Factual Findings) [2024] EWFC 75 (B), of which she wrote: ‘A man who raped his wife and was controlling and threatening towards her and their two children attempted to manipulate the family court into believing he was a victim of domestic abuse, a judge has ruled.’ The case was also reported in The Guardian, and is more fully noted below under New Judgments of Interest.
Derbyshire Live reported that Snapchat evidence of potential contact could see Derby council take child into its care, after covering a case under the transparency Reporting Pilot at Derby County Court on 15 March 2024. The local authority was seeking to take the child into its care due to alleged breaches of a ban on communication between the parents. The newspaper reported that ‘The mother claimed she had not had any contact with the father but told the council that her grandmother may have “inadvertently been responsible” for the father receiving information about her whereabouts, court documents show.’ Lawyers for the mother had sought to have the media excluded from the hearing, claiming the media presence ‘materially adds to the risk to the mother and the child’ but Judge Elizabeth Williscroft refused to exclude the reporter, saying: ‘It is a bit peculiar to say it might add to the risk in the future. I don’t think there are clear reasons that anything a journalist may report about this hearing may cause a risk. I am not persuaded there is any good reason why he cannot remain in this case.’
Family Law Week reported that the Supreme Court had heard appeals in two joined cases, Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust and Thomas v King’s College Hospital NHS Foundation Trust [2023] EWCA Civ 331; [2023] Fam 287 to determine whether the Court of Appeal was right to discharge reporting restriction orders (“RROs”) protecting the identity of medical staff involved in the treatment of patients where applications were made to withdraw treatment. The court will have to balance the respective article 8 and article 10 rights, said FLW. You can watch the archived live stream of the hearing on 15 and 16 April via the Case Details page on the Supreme Court’s website. Judgment has been reserved.
The Times had a feature entitled Keep your partner’s faults out of court about the increasing use of the financial settlement process to get round the new acrimony-free ‘no-fault’ divorce process as a way of airing grievances against former partners by bringing allegations of poor financial conduct against them. Lawyers should discourage this because it leads to distress and delay. Like many media comment pieces it was more anecdotal than empirical, and without data it is hard to know whether there really has been an increase in ‘acrimoney’ as one might describe it, to compensate for the loss of the ‘decree nasty’ or ‘decree absolute ****’ process of former days. Our understanding is that while bad litigation conduct may result in an adverse order for costs, bad conduct outside court would still need to be very serious to adversely affect the award.
The Guardian reported on a High court judge removed from case in part due to his Garrick membership, which was about a ruling by Mr Justice Keehan that Sir Jonathan Cohen should not hear a particular a case involving an alleged rape and domestic abuse victim, partly on the grounds that ‘Cohen is a member of the Garrick Club … the father was a regular visitor to the Garrick Club … the father’s ex-employer is a member of the Garrick Club’, and because the appellant mother had attended a public protest outside the club in March because of its male-only membership policy. That protest had accompanied the delivery of an open letter, signed by an MP and dozens of lawyers, calling on the club to stop discrimating and to admit women as members. (An earlier letter from many of the same signatories had called on all members who were judges — many of whose names had earlier been revealed in an investigation by the Guardian — to resign from the club.) One of the signatories of both letters was the barrister Dr Charlotte Proudman, who had made the application for Sir Jonathan Cohen to be recused from the case, in which she represented the mother.
The Independent had earlier reported that Dr Proudman was facing disciplinary proceedings for her criticisms of a judgment handed down by Sir Jonathan Cohen in an unrelated case, and that more than 60 lawyers, campaigners, politicians and academics has signed another open letter, supporting Dr Proudman and calling on the Bar Standards Board to withdraw its prosecution against her. (She has already managed to get the judge who was to have heard the disciplinary proceedings, Philip Havers KC, to recuse himself on grounds of his own membership of The Garrick.) The disciplinary proceedings were reported to have been launched after Dr Proudman had tweeted, of the judgment in question: “I do not accept the judge’s reasoning. This judgment has echoes of the ‘boys’ club’ which still exists among men in powerful positions.” The open letter questions whether her comment could seriously undermine the integrity of the justice system, arguing instead: ‘we believe it takes immense integrity to publicly defend a vulnerable individual from a judge who holds significant power’.
A Lawyer Writes (Joshua Rozenberg’s blog) reported meanwhile Garrick votes for women. Following a late night meeting of its general committee, the Garrick Club on 4 April 2024 voted to accept legal advice to the effect that women might be elected as members without the need for a change in the rules, subject only to approval of its decision by a simple majority of those voting at a members’ meeting (which has since occurred). The legal advice came from an opinion delivered on 19 March by barristers Lord Pannick KC and Emily Neill. (Rozenberg KC (Hon) declared an interest in that he is himself a member of the club.) See also: Guardian, Garrick Club votes to accept female members for first time.
George Julian wrote on her blog about the case of Fern Foster, a 22 year old autistic mother who died following a deterioration in her mental health after her baby was taken into care. George attended and live-tweeted parts of Fern’s inquest. The coroner found that the impact on Fern of the family court process had to be understood and he concluded with a suicide verdict, finding that a lack of access to independent advocacy for Fern and the way in which she in which she learned of significant adverse news during the child protection process, in the absence of professional support, were contributory factors to her death.
The Observer had two stories about children being housed in illegal care homes because of a chronic shortage of places in secure local authority units. In Revealed: hundreds of vulnerable children sent to illegal and unregulated care homes in England, reporter Tom Wall said councils had placed 706 children, the majority of them under the age of 16, in their care in homes that were not registered with Ofsted, the children’s social care watchdog, in 2022–23. It is illegal to operate a children’s home without an Ofsted registration, the report said, yet Ofsted did not prosecute a single provider in 2022–23, despite launching 845 investigations into suspected illegal children’s homes. Another piece by Wall, ‘Nowhere else is available’: how vulnerable children end up in illegal care homes, reported on the frustration of family court judges dealing with the plight of children for whom an illegal care home is often the only option open to them.
Community Care reported how ‘Consistently high standards’ of social work earns Cafcass across-the-board outstanding rating from Ofsted. According to the journal’s glowing writeup, ‘The inspectorate praised the family court body — England’s largest social work employer — for the “remarkable” achievement of delivering high-quality practice across its 19 service areas and for improving from the high baseline set by its 2018 inspection.’ The rating was achieved despite ‘unprecedented demand’ for the agency’s services in the wake of Covid-19 and the resulting ‘challenging delays’ for children involved in court proceedings.
BROADCAST & AUDIO COVERAGE
BBC Newscast had an episode titled Paedophiles To Lose Parental Rights on 17 April 2024, in which Lucy Reed KC, chair of the Transparency Project, appeared with Sanchia Berg and Harriet Harman MP. The prompt for the episode was a reform to legislation proposed by Harriet Harman, supported by the Lord Chancellor and currently under consideration in Parliament (and reported here by Berg). The amendment came about as a result of coverage of a family court case by Sanchia Berg last year. That coverage had only been made possible by the transparency reforms that were being piloted in family courts, which made it easier for reporters to report private hearings. Reed comments and explains further on her Pink Tape blog: “Paedophiles to lose parental rights” — but what does that actually mean?
BBC Radio 4’s Experts on Trial (1 April 2024) had a 15 minute episode on the Waney Squier ‘shaken baby syndrome’ (SBS) cases and why courts are best accepting majority mainstream scientific opinion rather than innovative fringe views. Includes an interview with the barrister who has written the SBS guidance for the Crown Prosecution Service.
Radio Ulster Evening Extra (5 April 2024) had a piece about a proposal by Lady Chief Justice of Northern Ireland, Dame Siobhan Keegan to open up the family courts there to greater transparency, as has happened in England and Wales. It includes an interview with journalist Louise Tickle (a member of the Transparency Project) identifying both the benefits and limitations of what has happened in the family justice system in England and Wales since the courts began to open to greater scrutiny in 2009. (The story starts at 1 hr 5 mins in.)
BBC Radio 4 Woman’s Hour (4 April 2024) had a piece asking Why are social workers concerned about the way they are portrayed on screen? It points out that the majority of social workers are women. The episode also addresses a recent employment tribunal ruling that describing an expectant mother as emotional at work was discriminatory.
Law Pod UK (25 April 2024) had a podcast episode entitled Punching a window on the world of family law in which UK barrister Jim Duffy discussed the current Reporting Pilot with two experienced family law practitioners from 1 Crown Office Row (1COR) chambers, Richard Ager and Clare Ciborowska. There was a good explanation of the background and aims of the current transparency agenda, and of the pros and cons of transparency in family cases, but little by way of examples of either good or bad practical consequences from increased reporting.
LEGAL BLOGGING
My first daytrip to the Magistrates Court (5 May 2024) was the first example of legal blogging in a magistrates’ court under the initial Reporting Pilot — Cardiff being one of the three original courts under the pilot, which was extended to include magistrates from November 2023. Though evidently quite cautious about the process, the court welcomed Lucy Reed KC as a reporter and issued the Transparency Order which allows reporting by default, subject to stringent anonymisation. Unfortunately the hearing hit a snag in that the Cafcass officer failed to attend as scheduled, and very little was achieved. Another hearing has been fixed for July.
What the pilot saw: an everyday case management hearing in the Family Court (28 April 2024) by Paul Magrath described a routine case management hearing before a circuit judge in East London Family Court, under the current Reporting Pilot. The case involved the residence and care of an 11-year-old boy, currently being looked after by his aunt, who was added to the proceedings as an intervener on the court’s own motion. Pending further hearings, the court made a number of orders, preserving the status quo, and arranging for reports and various other matters to be done to progress the case.
NEW JUDGMENTS OF INTEREST
Re C (A Child) (Adoption by Foster Carers) [2024] EWFC 87. This is a Family Court case heard by a Deputy High Court Judge, Richard Harrison KC. It’s quite unusual in going into considerable discussion on the relative effects and implications for a five-year-old child of potential placements with her foster carers as adopted, special guardians, or remaining in long-term foster care, including detailed examination of potential contact arrangements. The child has lived with the same foster carers for most of her life but, in less good news, the local authority (Luton) came in for a good deal of criticism from the Cafcass guardian regarding delays, inefficiency and lack of clear planning. Primarily because of the this particular child’s severe medical condition, the judge concluded that an adoption order was the only order that would meet her welfare needs and that a post-adoption contact order would not be appropriate. His analysis of all the options, however, is helpful in spelling out the decision-making process.
EBK v DLO [2024] EWHC 984 (Fam). Sharing information outside court proceedings is the issue in a second judgment about these parties and claims of contempt of court. We wrote about the earlier hearing here (No anonymity for contempt against family court). The father of a seven-year-old child was attempting to have the mother committed to prison for contempt because she had written to her MP back in 2020 asking for help with regard to the child arrangements proceedings ongoing at that time. The father claimed that the letter was a breach of section 12 of the Administration of Justice Act 1960, which is the legislation that stops people from publishing information relating to family proceedings held in private. The judge, Mr Justice Poole, did not allow the application; he was not convinced there had been a breach and there had been a long interval between the letter and the claim. A finding of contempt would be of no benefit to anyone and the impression was given that the father was using the court to try to undermine the mother’s participation in new CAO proceedings he had begun. (We had thought that the court rules specifically allowed a party to consult their MP but the judge didn’t mention this as an exception and we can’t now see it in the rules either. However the mother could probably rely on FPR rule 12.75(1)(a) regarding confidential discussion to obtain support or advice.)
Re GB (Parental alienation: factual findings) [2024] EWFC 75 (B). There’s been some media coverage of this judgment, as noted above. Following a successful appeal by a mother against a district judge’s order that she undergo a psychological assessment (Re GB (Part 25 Application: Parental Alienation) [2023] EWFC 150) the case returned for a re-hearing on child arrangements back in the Family Court before HHJ Middleton-Roy. The judge heard evidence from both parents and compiled a long list of findings of abuse perpetrated by the father against the mother and the children. He cited the concept of DARVO, whereby the father denied his own behaviour and had sought to present himself as a victim of injustice by the mother. Specifically, the father had used allegations of ‘parental alienation’ to manipulate and intimidate the mother so that she wouldn’t report his behaviour. The court found that the father found it impossible to empathise with his children and had no insight into the distress he caused them. As a result they were understandably fully aligned with their mother. The conduct of the father in the court process had been so ‘reprehensible and unreasonable’ that he was ordered to pay the mother’s legal costs of £50,000.
Re A and B (Children’s Experts) [2024] EWHC 948 (Fam). This was another judgment where a siginificant issue was the proposed appointment of a parental alienation ‘expert’ by the Family Court. The mother succeeded in appealing against the order for what was described as a ‘general psychological assessment’ that Cusworth J in the High Court concuded was unnecessary.
Re N (A Child) (Ukraine) (Art 13(b)) [2024] EWHC 871 (Fam). This case concerns a dispute between divorcing Ukrainian parents regarding their 12 year old son. The judgment is quite complex, as it’s a Hague Convention international abduction case where, understandably, issues arise about the risk to the child of moving from the UK back to Ukraine. However, the child is angry about being kept in the UK, apart from his father, his friends and his dog. The judge (John McKendrick KC, sitting as a Deputy High Court judge) emphasised the importance of listening to him and keeping him informed. An interesting point is the approach the judge took to evaluating the dangers in Ukraine, and making that approach clear to the parties.
Re O (Appeal) (Duty to consider fact-find) [2024] EWHC 839 (Fam). Unusually, this appeal to the High Court against a child arrangements order for contact was heard in open court, although we haven’t seen any media coverage. Yet again, it was found that the correct procedures had not been followed in the Family Court where there had been allegations of domestic abuse, and the order that had been made was set aside for re-hearing. The High Court judge, Ms Justice Henke, concluded that the Family Court judge had been wrong not to hold a ground rules hearing, nor to consider special measures or a fact-finding hearing. This was despite the father having threatened (in front of the children) to slit the mother’s throat. Henke J noted in particular that the judge had said he was not making a finding about allegations but, on the other hand, he described the parental relationship as ‘toxic’, implying that he had reached a conclusion that both parents were blameworthy.
Re A (A Child) (Fact finding Head Injury) [2024] EWCA Civ 327. The child at the centre of this case was two months old in February 2022 when she suffered an unexplained brain injury, leading to a care application and eventually to her being placed with grandparents, where she remained for two years. The parents were having supervised contact and co-operating with the local authority. There were no child protection concerns apart from the injury, the court having concluded that this had been caused by either the mother or father. Both parents were now appealing against that decision. The Court of Appeal decided that there had been a number of flaws in the judge’s reasoning. The medical evidence wasn’t as clear-cut as the judge had accepted; she had failed to look at the wider canvas of evidence and she did not analyse the evidence of each parent in sufficient depth to conclude if either could be excluded from ‘the pool of perpetrators’.
Re W (A Child) (Inflicted injury) (Delay) [2024] EWCA Civ 418. Another case of unexplained injury to a baby, where there were no other parenting concerns , that has stretched over two years. The parents have now successfully appealed to the Court of Appeal against the care order based on findings that had been responsible for causing leg fractures. The judgment is too complex to summarise here but there’s a clear analysis by barrister Matthew Fiddy, explaining the importance of taking the parents’ and grandparents’ evidence into serious consideration alongside the medical evidence – The Importance of Lay Evidence in Fact-Finding Hearings – a consideration of Re W (A Child) (Inflicted Injury) (Delay) [2024] EWCA Civ 418.
Father v Mother [2024] EWFC 74 (B). We’re just mentioning this case because although the father did not have parental responsibility, this did not stop a range of applications for child arrangements, prohibited steps, and specific issues , being made by both parents regarding their nine year old son. It reads as a good child-focused judgment, by HHJ Richard Clarke, but it’s a striking example of the extent to which a father without PR could still exercise his parental rights. (See also, on this, Lucy Reed’s Pink Tape blog: “Paedophiles to lose parental rights” — but what does that actually mean? cited above.)
OTHER TRANSPARENCY etc NEWS
A new Transparency & Open Justice Board was announced by the Lady Chief Justice, Baroness Carr of Walton-On-The-Hill, on 30 April 2024, whose terms of reference include the establishment of a Stakeholder Committee. We have written in more detail about this in a separate post.
Litigators raise concerns over court document access plans, says the Law Society Gazette, reporting the response of the The London Solicitors Litigation Association (LSLA) to a recent consultation on proposals, made by a sub-committee of the Civil Procedure Rule Committee led by Lord Justice Bean, to widen non-parties’ access to court documents. The proposal would make it the responsibility of any party filing a skeleton argument or witness statement in civil proceedings to provide a copy for public access, by default (ie unless the court directs otherwise). This applies primarily to civil proceedings, and implements the change mandated by the Supreme Court’s decision in Cape v Dring [2019] UKSC 38; [2020] AC 629.
How open is justice? The ICLR blog reported a panel discussion held in the Institute of Advanced Legal Studies under the heading “Technology, Transparency and Criminal Justice” in March, to mark the launch of Observing Justice by Judith Townend and Lucy Welsh (Bristol University Press).
Neutral citations for judgments from the Family Court are being changed to reflect whether they are given by a High Court judge (which means the judgment can be cited as a precedent) or by circuit or district judges (whose judgments carry less authority but are published for reasons of transparency and current awareness). This reflects the practice that used to be adopted by BAILII following the then President, Sir James Munby’s transparency guidance in 2014, but instead of the letter B appearing before the case number for non-High Court judges, The National Archives will now add it after the number, in brackets, in the same way as many sub-divisional abbreviations in neutral citations for other courts and tribunals (eg the (Fam) at the end of the neutral citation for the Family Division of the High Court). By way of example, Father v Mother [2024] EWFC 74 (B) (noted above) was a judgment of HHJ Richard Clarke, a circuit judge in the Family Court, whereas Re C (A Child) (Adoption by Foster Carers) [2024] EWFC 87 was a judgment of Richard Harrison KC sitting as a (deputy) High Court Judge. Previously published judgments are gradually being updated to reflect the new practice, which needs to be borne in mind when using the neutral citation as a search term. Though it might seem a bit baffling, it may go some way towards addressing an issue we identified when TNA first took over the official publication of judgments in 2022: see The National Archives and Family Court transparency — a temporary glitch?
The Guardian had an obituary of Evan Stark, the sociologist whose research on coercive control led to new criminal and family justice responses to domestic abuse. Stark, who died aged 82, was the author of a book, Coercive Control: How Men Entrap Women in Personal Life (2007), which documented a broader and more devastating pattern of manipulative behaviours and subjugation, closer to kidnapping or slavery, that he defined as ‘coercive control’. The obituary was written by Dr Cassandra Wiener, at the launch of whose book, Coercive Control and the Criminal Law (Routledge) Stark had spoken at an event at City Law School on 23 March 2022.
The Children’s Commissioner for England, Dame Rachel de Souza, published The Big Ambition (10 April 2024), her survey report compiling the voices, views and experiences of children about their lives and aspirations. She says it offers ‘a positive vision to improve and protect childhood by setting 33 practical ambitions aimed at overcoming the challenges children told the Commissioner they face: from staying safe online and challenging harmful myths around body image, to lessons in how to manage their money and more enriching activities that divert away from crime’.
Local Government Lawyer reported on Guidance on explaining family court decisions to children published by Welsh Government and Cafcass Cymru. The Guidance, published 22 April, is intended to help support parents and other carers when they are explaining decisions made in the Family Court to children.
Change.org published an online petition launched by someone describing themselves as ‘a survivor of domestic abuse and post-separation abuse’, calling on the government to Mandate Independent Oversight in Family Court Cases Involving Coercive Control and DA. ‘This oversight should come from specialists in law and coercive control [who] will ensure that Practice Direction 12J (PD12J) and other relevant legislation is followed correctly’. The petition has received over seven hundred signatures out of a target of a thousand, but is unlikely to have any practical result. However, we draw attention to it as an example of the lack of public confidence in family justice when dealing with issues of domestic abuse, despite reporting of recent judgments addressing the problem.
The Judicial Office announced a pilot scheme whereby judges in the Central Family Court in London will now wear robes (though not wigs) in an effort to increase the formality of the proceedings, and reduce the risk of the violent and threatening behaviour experienced by some judges and court users. The scheme, which was approved by Sir Andrew McFarlane P, began on Monday 15 April 2024 and will run for an initial 3-month period. Practitioners will not be required to wear wigs or gowns. (Nor, presumably, will magistrates sitting in the Family Court in the same building.) A survey will be conducted before, during and after the pilot to evaluate its effect on behaviour in court. It’s not clear if the pilot will extend to fully remote hearings conducted from the CFC, though presumably it will apply to hybrid ones.
The Law Society Gazette reported that he government had indicated that ‘something needs to be done’ to ensure only properly regulated experts are called to give evidence in Family Court proceedings. The commitment, given by justice minister Lord Bellamy last week, was made in response to an amendment to the Victims and Prisoners Bill.
FAMILY LAW IN OTHER JURISDICTIONS
Canada
SLAW, Canada’s online legal magazine, posted that BC Court of Appeal Recognizes the Myth of False Allegations of Intimate Partner Violence, in which Deanne Sowter & Jennifer Koshan commented on the case of KMN v SZM, 2024 BCCA 70 (CanLII), overturning 2023 BCSC 940 (CanLII). The British Columbia Court of Appeal (BCCA) recognized the existence of the myth that women make false or exaggerated claims of violence to gain an advantage in family law disputes, and the need for courts to avoid making assumptions that perpetuate it, holding that it is erroneous to do so unless there is an evidentiary basis for a finding of false allegations.
Australia
The Conversation reported that Family law has been overhauled. With the new changes about to kick in, how will they affect children? It explains that on 6 May 2024 major changes come into force affecting how children’s cases are decided under the federal Family Law Act. Among other things, they repeal a controversial legal presumption, introduced in 2006, that ‘equal shared parental responsibility’ is in the best interests of children. But this is also a major overhaul of the legislation as a whole — and includes other things like more regulation of family report writers (custody evaluators etc) and contact centres. There is apparently much interest and discussion in the family law community in Australia (and also in the UK) about how it will all work.
That’s all for now. Thanks for reading.
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