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 COURT MATTERS
The Times – Published a series of reports from Emily Dugan (paywalled) on children’s social care services:
- I found one bruise and they took my baby away investigates councils over-interpreting RCPCH Guidance (and research underpinning it) on bruising in non-mobile babies;
- Too many children wrongly taken into care, admits chief social worker Isabelle Trowler reports Trowler’s call for a recalibration to supporting families, noting the launch of the ‘independent’ Care Review, rising numbers of families being investigated for child abuse (with none found), and a recent family court decision to remove a child because of obesity;
- Police woman’s baby taken into care after an NHS error looks at the impact of separating babies from parents during investigations of unexplained injuries.
(See also reports of the Children’s Commissioner’s review of the future of childhood in England, billed as a once in a generation opportunity to rebuild at policy level after Covid. And new NFJO research drawing together evidence on child abuse and neglect – including since the pandemic – and calling for courts and children’s services to be part of a holistic, cross-governmental framework).
The Guardian, BBC News, Byline Times (and others) – Covered the launch of the review of children’s social care, and conversations about its capacity for true independence from government. See here, here, and here. While Martin Barrow put the new Competition and Markets Authority review of children’s social care into context in Privatisation of children’s services is bad for children and bad for taxpayers at the Transparency Project. (See also CYP Now on a sudden glut of new reviews and risk of sector overwhelm here):
The Birmingham Mail – The Mail report, Domestic violence survivor tells of reality in six year battle after fleeing husband: Worcester mum claimed she experienced a ‘lack of understanding of domestic abuse’ by the judges stood out in moving beyond critiquing the family justice system to include a constructive, solutions focus too. Significant column space for Cafcass and MOJ reform plans and even direct links to them for readers, along with comprehensive links to support services for those experiencing abuse. The report perhaps also neatly illustrates the need for review of the rules potentially inhibiting public discussion and reporting of individual cases. We don’t know if permission was sought here or not. See this recent call for reform of the rules governing talking about your case in public for more:
The Birmingham Mail (again) – Stood out for confidently, transparently linking readers to the actual published information on Cafcass and MOJ plans to meet the ‘Harm Report‘ findings of a need for urgent reform to better protect victims and children.
Sky News – Sky News kept the dire shortage of suitable regulated beds for vulnerable children (via the plight of particular child G) in the headlines. A link to the free published family court judgment their report relied on would have added transparency and context. See also Taking Liberties: A simple guide to DOL (Deprivation of Liberty) by Jack Harrison; reports of the children commissioner promising to tackle the government limiting a ban on unregulated accommodation for children to under 16’s; and Lord Watson in the House of Lords critiquing the proposed regulations.
The Telegraph – Reported an MOJ announcement of vouchers for mediation for those not already entitled under legal aid without a link to the announcement or much on the actual scheme detail. The vouchers are payable to the mediator not the individuals, as the headline perhaps suggests.
Mail Online – The Mail online are running a highly regarded investigation in support of leaseholders, and kept the topic of cladding in the news with this report of a family divorce court judgment featuring a property rendered ‘nil value’ by unsafe cladding. No link for readers to the free public access judgment that the Mail were reporting however.
BBC News – Reported the published judgment from the Court of Appeal on Pippa Knight’s tragic situation, with no link for online readers to the judgment containing the legal reasoning. See Katie Gollop’s post (below) for explanations of the law:
NEWLY PUBLISHED CASES
M (Special Guardianship Order: Leave To Apply To Discharge) (Rev 1)  EWCA Civ 442 (26 March 2021) – Lucy Reed flagged a Court of Appeal decision looking at the right approach to applications for permission to discharge Special Guardianship Orders. See When can you apply to discharge a Special Guardianship Order?
Parfitt v Guy’s and St Thomas’ Children’s NHS Foundation Trust & Anor  EWCA Civ 362 (19 March 2021) and EWHC 25 (Fam) (08 January 2021) – Katie Gollop explained the High Court decision on a Hospital Trust’s application to withdraw ventilation from Pippa Knight and the Court of Appeal’s decision that the High Court were right. See Pippa Knight – Harm Without Awareness and We Still Don’t Know What Dignity Is And Maybe It Doesn’t Matter. (The Mail report that Pippa’s mother, funded by the Society for the Protection of Unborn Children, intends to apply to the Supreme Court. BBC News reported here and here):
Re A & B (Children) (deaf parent: assessment and practice) – Abigail Bond highlighted best practice in care proceedings concerning deaf parents set out in this family court judgment. See Deaf parents in care proceedings: Good practice in and out of court:
Kassai v Tabarra – Kathryn Cassells shed light on the law behind media stories of a (withdrawn) annulment application (in the absence of a published judgment). See The end of an unhappy marriage – annulment and non-consummation:
AB v CD & Ors  EWHC 741 (Fam) (26 March 2021) – Mrs Justice Lieven confirmed (with reference to Bell v The Tavistock and Portman NHS Foundation Trust & Ors – to be heard in the Court of Appeal on 23rd June) that parents can consent to puberty blockers without needing to apply to court on behalf of competent children under 16 where all are in agreement. Alex Ruck Keene explains further at Mental Capacity Law and Policy.
Newman v Southampton City Council & Ors  EWCA Civ 437 (25 March 2021) – The Court of Appeal dismissed Newman’s appeal against a decision not to permit her to see the court papers, including social services and medical records, behind a flawed (then overturned) adoption decision. Judgment was published on 25th March. (See also Transparency News below).
H (A Child), Re  EWFC B63 (28 August 2020) and H v C (Fact finding)  EWFC B94 (17 September 2019) – Two judgments from HHJ Tolson subject to appeal in the Court of Appeal on the right way to treat domestic abuse and sexual violence allegations in child arrangement order applications were published. See here and here. The Court of Appeal judgment is expected on 30 March.
West Sussex Council v A and B  EWFC B62 (29 October 2020) – Local Government Lawyer wrote up the judgment from this decision to remove an obese child from her parents in a context of neglect, that attracted press attention including here and here.
Re H (Children: Findings of Fact)  EWCA Civ 319 – Emily Ward flagged a useful summary of the role of the appellate court in factual appeals (paragraphs 20-24) from the Court of Appeal’s published judgment.
Re E  EWFC B5 (21 January 2021), Re G & B, Re (Discharge of Special Guardianship Order)  EWFC B6 (15 February 2021), and Re S (Care and Placement Orders)  EWFC B7 (25 February 2021) – A cluster of published judgments from HHJ Lynch, written accessibly with the needs of the families concerned uppermost, and explicit reference to the transparency guidance on publication of judgments:
IN OTHER TRANSPARENCY NEWS
Transparency through published speeches and interviews– Sir James Munby highlighted funding & political decisions behind continuing failures of vulnerable children & families, offering insights for deep system change. The full text of his speech was published at the Transparency Project. See OUR TREATMENT OF THE VULNERABLE – CHALLENGES FOR THE FAMILY JUSTICE SYSTEM. While Sir Mark Hedley spoke to Counsel Magazine on the complexity of the judicial fact finding task in care cases with reference to a much publicised judgment at the end of a long process after a child died in tragic circumstances. See Beyond cold rationality:
Reforming care proceedings cases – The Public Law Working Group published their final report with proposals for reforming how care cases are dealt with in the family courts. We’ve not seen any published speeches from the launch event on 9th March but Child Protection Resource live tweeted much (various threads 9th March eg here). Useful resources at ADCS site here:
Transparency through reporting from public hearings – We attended two Court of Appeal hearings raising issues of legal and public interest, obtained the skeleton arguments, and explained the legal arguments:
Lucy Reed explained the Court of Appeal hearing of four appeals heard together, raising issues of public importance on the proper approach to deciding child arrangement order applications involving allegations of domestic abuse and serious sexual assault/rape. See The Court of Appeal considers Domestic Abuse – Parts 1, 2, and 3 and Domestic Abuse Appeals – the warm up act?. (See also Joshua Rozenberg here, George Julian in ‘My view of that, ladies’ ~ Reflections on live tweeting the #DAAppeal, Jeremy Ford re-published at the Transparency Project on PD12J & Scott Schedules – Rearranging a Spider’s web and Julie Doughty on the Domestic Abuse Bill here (now completed its 3rd Reading).
Alice Twaite explained some of the legal arguments from journalist Melanie Newman’s application to see the court papers behind a flawed decision to make a placement order (later overturned) that raised important legal issues on the proper approach and was live streamed. See Should a journalist be able to see all the court papers behind a flawed decision that a child should be adopted? Marshalling the arguments. The appeal has since been dismissed with judgment published on 25th March. We’ve seen reports so far at Press Gazette and Care Appointments plus opinion from Newman at the Times written ahead of judgment:
The President’s review of Transparency and the family courts – The Transparency Project asked how transparent the process was as news emerged informally that oral evidence sessions were underway. See Transparency Review : Oral Evidence Sessions Underway and Family Court Transparency Review – An Update. The review was launched in late 2019 but was delayed including because of covid. The call for written evidence closed in May 2020 and the Project’s submission is here. The Transparency Project gave oral evidence. We expect a further update from the judiciary shortly.
A proposal to the Law Commission to reform rules preventing public discussion of children’s cases – See here for a formal proposal to the Law Commission, that they review privacy rules preventing public discussion of what takes place in most family court hearings, by Sir James Munby (former President of the family courts), His Honour Clifford Bellamy (retired judge and patron of the Transparency Project, with Lucy Reed and Julie Doughty (Trustees of the Transparency Project) and Louise Tickle, (Freelance journalist and Transparency Project member).
The Police, Crime, Sentencing and Courts Bill – Paul Magrath highlighted aspects of the new bill relating to the family courts from provision for new problem solving courts to measures making open justice provisions in the Coronavirus Act 2020 permanent, such as virtual attendance for journalists and the public and live-streaming. See Police, Crime, Sentencing and Courts Bill – what does it mean for transparency?:
See also this thread https://twitter.com/gifford_head/status/1374645017801854976
Transparency in state decision making across jurisdictions – Louise Tickle (freelance journalist and TP member) and Bath Publishing hosted a pioneering series of panel events on reporting decisions of public bodies across various courts and tribunals, from the family courts to the court of protection, inquests, military tribunals etc. See Law, Justice & the Spaces Between : Does being watched change how justice is done? The role and function of observers in trials, inquests, family courts and tribunals. See also How being watched changes how justice is done: ‘Insider’ Perspectives at the Open Justice Court of Protection project.
Transparency through research (published open access):
Attachment goes to court: child protection and custody issues – Is an ‘open access’ international statement attempting to enable those in the family courts to apply attachment theory in a supportive and evidence based direction in all child protection and ‘custody’ cases. See Family court decisions distorted by misuse of key research, say experts, a Cambridge University blogpost. We’ll write about this research when we can:
Uncovering private family law: Who’s coming to court in England – Headline findings from preliminary (Nuffield FJO funded) research into the population level profiles of the families applying to the private family courts in England were launched at an online event introduced by the President. (The findings broadly follow those already published from Welsh research). There’s a helpful twitter thread of the main English findings here. The research also reveals that former assumptions on numbers of separating families with children ending up in court /rising numbers of applications were inaccurate (as suggested at the Transparency Project here in 2019). The NFJO are also seeking bids for research directly with families in the Dorset and N. Wales private law pathfinder pilot areas.
Born Into Care: A focus on maternal mental health – The latest published research from another Nuffield FJO funded series (on newborns and care proceedings) breaks down mental health disorders reported by 55% of all new Welsh mothers at initial antenatal assessments by type of mental health disorder experienced.
Protecting Young Children from risk of abuse and neglect – Newly published NFJO funded research report drawing together existing evidence and making recommendations for more holistic, meaningful support for children. Helpful twitter thread of the headlines here.
Transparency through public access to legislation – We commented on the move of the Family Procedure Rules to Gov.uk in- Rules are made to be broken…into chunks:
12th April 2021 – The deadline for bids to the Nuffield FJO to undertake research directly with families in the areas (North Wales and Dorset) piloting new investigative integrated ‘pathfinder’ family courts hearings for private law cases including those featuring domestic abuse.
30th March 2021 – The Court of Appeal Judgment is expected to publish judgment from the conjoined domestic abuse appeals. (See above).
23rd June 2021 – The Tavistock and Portman NHS Trust appeal is listed for hearing in the Court of Appeal
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