New Speech from the president of the family division.

blur close up focus gavel
Photo by Pixabay on Pexels.com

Judicial Arrogance

After an incisive start, when Sir Andrew McFarlane delivered a couple of landmark speeches, he appears to have gone a little quiet. However, his latest offering confirms that he is back in business.

Many of us will have first hand experience of judicial arrogance. At a time when more and more litigants are ‘self represented’ it comes as a shock to be gaslighted by judges in exactly the same way as a coercively controlling partner would have done. The president states:

In judicial circles it is a well-known phenomenon that some lawyers, who had hitherto been entirely amiable and mild-mannered individuals, subtly develop, immediately following their appointment to the Bench, a wholly unattractive arrogance and belief in their own self-importance.

 

In his first few weeks of office he undertook to get around as many of the family courts as he could? Who better to express his empirical findings?

Glacial Courts which are a law unto themselves

He also highlights the fact that despite the fact that the need to avoid delay is also prominently embedded in the Children Act 1989 where s 1(2) states that:
“in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”

Time limits were applied to public law because a parent child relationship is frequently severed in these cases. Sadly, it is not uncommon for severance, in the guise of pa, to happen in private law also. However, S1(2) seems to be ritually ignored.

When litigants and lawyers see the statute being ignored it is hardly surprising that family court orders are regarded as optional. The court sets an appalling example.

It does not matter whether you are an expert witness, social worker, lawyer, litigant in person or a parent The rest of the speech contains valuable advise and deserves to be widely read.

Speech by Lord Justice McFarlane: Bond Solon Experts Conference 2018

Many thanks to Kerry for alerting us to this.

 

Throwing open the opaque doors of the family courts

two person standing under lot of bullet cctv camera
Photo by Burst on Pexels.com

Guidance to staff on supporting media access to courts and tribunals

 
Apart from an occasional juicy fat cat divorce the family courts do not seem to attract much press or media attention. Furthermore, apart from the Royal Courts of Justice, the glare of publicity never arrives. Consequently judges, lawyers and social workers have an arrogance and swagger that comes from years of lurking in the shadows with the impunity that brings.
 
It often surprises folk to learn that there is indeed a presumption in favour of ‘card crrying’ press access to the family courts.
 
Surely we have some reporters out there who are personnally touched by the family courts and enough so to want to start shining a light on a brand of arbitrary justice that our schools tell us was outlawed by magna carta?
 
Please get in touch if you would like to be signposted towards some truly incredible proceedings. You and your readers will not believe it!!
 
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/750526/HMCTS_Media_Guidance.pdf?fbclid=IwAR0QEG9umsh9lAl_-d3QXllTb75zK2TnEuLpuHkJazt4S-UkmQt0EvTjKKY
 
The link to Jurisdictional guidance to support media access to courts and tribunals in the Family courts is contained in the annex to this guidance.

Gagging, Bullying, Control and secrecy

access black and white blur cage
Photo by Pixabay on Pexels.com

Since forming NAAP our experience has shown that only a few, who have taken their case to the family court, will not feel that they have — to a degree — been subjected to any single one of the above. Some will feel that they can claim to have been subjected to combinations of the above and others may even have been subjected to all of them. However, this occurs daily in the family courts yet it rarely, if ever, seems to generate even a single letter of copy drawing readers attention to probably some of the most open secrets that the nation will hopefully soon be looking back on as one of the biggest scandals perpetuated during their lifetimes. We are of course talking about our family court system.

Today’s Sunday Times says that:

The revelation that Sir Philip Green stands accused of racist and sexist abuse of his employees is perhaps the least surprising story of the year.’ 

The Sunday Times also say that, ‘…the sheer scale of non-disclosure agreements (NDAs) signed by the alleged victims of his abuse…’ is remarkable.

All of us who have experienced the family court system can observe that the scale of this latest PG scandal pales into insignificance compared with the magnitude of the one which has been brewing in the family court system and the way that it has or has not dealt with pa for decades and even centuries.

The Sunday Times reporting is balanced and they discuss the advantages to some employees and employers when confidentiality agreements are used in the context of disputes between employers and their employees. However, secrecy and confidentiality in the family court system does not achieve any of these purposes for its litigants. The balance of power and advantage weighs heavily towards the system with scant regards for the interests of the people that have no remaining alternative other than to use the system.

Instead, the gagging of litigants in family court ensures that serious abuses of the system thrive behind closed doors and away from the illuminating glare of daylight. The corrosive action of secrecy upon our human rights and upon fairness is spelled out by the Sunday Times if we simply compare the hidden nature of family proceedings with Philip Green’s strategies:

Yet, as Green’s repeated use of NDAs shows, this misses the crucial point: NDAs almost always perpetuate an abusive culture. The only way to stop harassment and abuse is to call it out, whenever and wherever it is found. NDAs do the opposite: they create a legal demand for secrecy.

The next section of the Sunday Times report leaves readers in no doubt about the highly caustic nature of malign secrecy. Indeed, it has been with us for a very long time — at least since the bible was written. The only way to stop its use is to call it out.

This sends a loud signal to abusers that they can act with impunity. As the repeated allegations against Green show, when one NDA is signed to cover up abusive behaviour, another will inevitably follow, because the behaviour will be repeated.

The issue is not only abuse. We know that the use of NDAs has been widespread in the National Health Service, both when parting ways with incompetent medical staff and to silence whistleblowers. But because of the inherent secrecy in the existence and content of NDAs, we have no idea of the precise numbers, or what specifically they have been used to cover up. This is not just wrong; it is plain dangerous.

There is truth in the adage from the Bible: “There is nothing hidden that will not be revealed. There is nothing kept secret that will not come to light.” Green spent a reported £500,000 attempting to silence coverage of his NDAs; much good it has done him. The film mogul Harvey Weinstein’s NDAs have returned to bite him. But for every Green and Weinstein, who have journalists poring over their activities, there are thousands of small-time sex pests and bullies of whom no one has ever heard. NDAs give them the power to carry on.

The Sunday Times draws some obvious and clear conclusions that are transferable to the family court situation where secrecy can easily be used to cover up misapplication of the law, flabby reasoning, lack of expertise and downright incompetence.

The answer, as always, is transparency. Theresa May has said that NDAs should not go further than protecting client confidentiality and commercial interests, and that the government is considering reform. In particular, they should never be used to cover up alleged crimes. 

However, the Sunday Times draws attention to another issue that is not aired anywhere near often enough. That is the rottenness that flourishes when peripheral areas are also deprived of illumination. The decay is not easily confined. It spreads out virulently. It’s roots are not confined to those that we deal with directly but they easily propagate within the growing mediums provided by the services and professions which feed directly off the family court system. The system is not confined to Judges, magistrates, Cafcass and litigants. An army of support staff in the court system also read judgments and maintain a compliant silence. Departments of social workers and their supervisors also see the judgements and file notes but have remained tight lipped. Solicitors and barristers, besides having direct involvement, also employ large numbers of support staff who also do not speak out. Next we have many experts who are called in. Some of them put their heads above the parapets to speak publicly of their experiences but not many do. Apart from this we have an army of groups and charities that have seemingly sat back and whined about their lack of funding whilst wringing their hands at the scourge of pa but have actually been onlookers watching a rotten system perpetuate itself whilst foraging for crumbs from the table.

The Sunday Times article summarises what we have said above, thus:

But the obligation for reform also lies with companies and organisations themselves. The existence of an NDA may be a secret, but no NDA is signed in secret. Lawyers know. HR departments know. Too many are complicit in their use. Boards and shareholders should be told how, when and why NDAs are being signed.

Attitudes to abuse have, thankfully, been transformed in recent years. The widespread use of NDAs comes from an era in which secrecy trumped openness. That must change.

At NAAP we cannot agree more with these sentiments. As a society we are now increasingly aware of how abuse, in all its manifestations, thrives in an atmosphere of silence, isolation and fear. All of that is changing but its progress is impeded by face saving and attempts to avoid the reputations of those who have benefited from a rotting system, have not spoken out and stood by idly to avoid their reputations being marred. At the end of the day all of this must take a back seat to the interests of the children who are at the core of the present system. It is high time that the interests of children were SEEN and not merely SAID to be paramount

‘…it blew up too soon for us.’

Sarah Parsons (Cafcass 2017)

grayscale photo of explosion on the beach
Photo by Pixabay on Pexels.com

Breach Birth of the Cafcass Child Impact Assessment Framework’ (CIAF)

The preceding article from Karen Woodall explains what Cafcass have done in developing the new framework and their aim in doing so. Here is a link:

Fogging the Issue: CAFCASS and The High Conflict Pathway

This article sheds some more light upon the history and reasons behind Cafcass endeavouring to redefine pa or Cafcass attempting to tailor the suit to fit the model in order to conceal a ‘mindset’ problem which Anthony Douglas described.

Cafcass originally christened it the ‘High Conflict Practice Pathway’ (HCPP) and it was supposed to have been rolled out and available this spring. Springtime has been and gone and as the autumn leaves fall we now have now been treated to the rebranded edition of the HCPP. This has now been called the ‘Cafcass Child Impact Assessment Framework’ (CIAF).

https://www.cafcass.gov.uk/2018/10/11/cafcass-publishes-new-assessment-framework-for-private-law-cases/

https://www.cafcass.gov.uk/grown-ups/professionals/ciaf/?highlight=child%20impact%20assessment%20framework

https://www.cafcass.gov.uk/about-cafcass/policies/

Reassuringly, Cafcass tell us, <fanfare>: 

  • ‘All private law practitioners will receive mandatory training in applying the framework’…and…
  • ’The training is due to be rolled out across Cafcass service areas from this month, with all practitioners expected to be trained by March 2019.’ 

Then my heart sank when I read: 

  • ‘As it is a development of our existing guidance, some of the issues will already be addressed in practice in current cases.’ 

Taking Stock

This was bitterly disappointing to read because it was not long ago that the Cafcass CEO, Anthony Douglas, squirmed when fielding questions from Rob Harrison at the Fnf seminar on 17th August 2017. The reason I say this is because the FOI data Rob presented to Douglas demonstrated that the majority of their English staff really could not give a monkey’s about free online training about parental alienation and emotional abuse. However, by comparison, online training about expenses claims was exceptionally well subscribed. Candidly, after these deeply revealing and embarrassing disclosures, Sarah Parsons coyly admitted: 

‘…it blew up too soon for us.’

When I read this I was already getting ready to call the paramedics because a cardiac event was imminent. 

A brief history of pa in the courts of England, Wales and Beyond

You see, parental alienation, or ‘parentally alienating behaviours’ as Cafcass have rebranded them are nothing new. Undue influence, whether done by manipulative chancers or alienating parents, is really nothing new. Parentally alienating behaviours made their recorded debut in the English courts 200 years ago. Parentally alienating behaviours are even described biblically and in antiquity. As a phenomenon, parentally alienating behaviours have been researched and described throughout the history of mankind until they received more recent judicial acceptance in Re L in 2000. Only 3 years later, in Re O, Wall J affirmed that:

 ‘Parental Alienation is a well recognised phenomenon’. 

This was 15 years ago. Therefore, my heart was banging out complex rhythms liked a massed samba band when Sarah Parsons uttered those immortal words:

 ‘…it blew up too soon for us.’ 

With incredulity I thought that a glacier would look lively by comparison.

Was it worth the wait

So finally, now that it is with us — after having ignored case law and seminal judgments that impacted significantly on their practice for a full 18 years-was it worth the wait ?

The short answer is NO.

As a brief exercise in corporate damage limitation it is commendable. However, as a means of safeguarding a growing cohort of children from emotion abuse it is an abject, miserable and shameful failure that having been exposed to daylight is now illuminated for all to see.

Whenever Cafcass have previously received justified criticism and hit difficult times it appears that instead of looking to the real problems and addressing them honestly and openly they have elected to gaze at their navals whilst appointing PR consultants to apply a coat of gloss varnish and weasel their way out of some pretty awful pickles. This strategy will not always work. Let’s hope that this turns out to be a time of insight. Instead of weasel words let us see some more of the sincerity Anthony Douglas appeared to show at the FNF seminar in 2017.

For those who are still interested here is some more of the back story to help you understand.

 

                                                                               

Re L in slightly more detail

If we turn the clock back to the year 2000, the Sturge and Glasser Report spoke of Parental Alienation / implacable hostility in literally the same breath as domestic violence. In the seminal joined case of Re L, V, M and H (Children) [2000] EWCA Civ 194  the court of appeal also considered a case where Parental Alienation had been alleged in Re M but the court of appeal supported the decision of the judge at first instance to reject the evidence of the jointly appointed expert. Unusually, but not out of character for a lady who made a few irrational shouts from the bench during her career, Dame Elizabeth Butler-Sloss also agreed with the judge at first instance’s finding that the court welfare officer’s view that the child had suffered ‘…emotional abuse…’ was ‘…unsubstantiated…’. Nonetheless the Court of appeal freely acknowledged that:

‘There is, of course, no doubt that some parents, particularly mothers, are responsible for alienating their children from their fathers without good reason and thereby creating this sometimes insoluble problem.’

Therefore, the argument has NOT been about whether PA / implacable hostility exists because the phenomenon will have been known for 200 years this year. It has been about what we call it and as HHJ Stephen Wildblood said, ‘Is it a syndrome?…WHO CARES.’ Therefore, for Cafcass and the Welsh assembly to be banging on about the ‘syndrome’ 18 years after the argument was buried is disingenuous and a mischaracterisation of reality. Personally, I believe that when things are dead they should be left alone. It is not very nice to dig up dead things and play with them.

Dv v pa

However, the equivalence and equality of approach between domestic violence and parental alienation / implacable hostility appeared to end rather abruptly after the court of appeal’s judgment. By 2004 Cafcass had produced their first domestic violence framework in a timely manner within just 4 years of the Re L joined cases and the Sturge and Glasser Report. 

2004 to 2013

Later when Cafcass was moved from the umbrella of the Ministry of Education to the Ministry of Justice and Cafcass (Cymru) was brought under the wing of the Welsh Assembly in 2005. However the two organisations have remained closely linked and share a number of resources and functions. Cafcass Cymru seemed to operate independently for a while when it unilaterally commissioned the CAWAC study and started using a kind of High conflict Pathway. However both organisations showed an aversion to tackling pa although they had embraced much of the other findings from Sturge and Glasser. The reticence and apathy and antipathy was such that Cafcass (Cymru) and Cafcass did not get around to even commissioning a literature and caselaw review of Parental Alienation / implacable hostility, and, begin to form an evidence base for addressing the problem, for at least another 13 years in 2017. This was the first occasion they appeared to defer to the findings in the family court when they decided to take a peek in order to see what all the fuss was about. Before this commission, the workforce was informed by a short ‘knowledge bite’ on pa which had been compiled by their librarian. Indeed, the ‘knowledge bite’ that formed the learning resource for their staff until very recently was actually put together by their librarian and amounted to only a few sides of A4. The rate of progress and amount of interest shown by Cafcass towards their statutory duty to safeguard children from the emotionally abusive effects of parental alienation have been both glacial and shameful. I do not level this accusation lightly or without good reason. For anyone that thinks I am being harsh I would invite them to follow these instructions:

  • Take a look at the FOI requests on the voice of the child blog here, https://voiceofthechild.org.uk/cafcass-elearning-completion-rates-staff/ . FOI requests, for information about the take up rates of their employees for training in PA and emotional abuse, eventually showed that the attitude of their staff towards these topics was antipathetic and disinterested. There was far more enthusiasm towards information about claiming expenses.
  • Watch Anthony Douglas’ response when he hears the disclosures about the appalling attitudes and lack of professionalism that the data revealed: https://www.youtube.com/watch?v=sewELMUGs_o (from 11’ 00” is the best bit). Anthony Douglas reveals that there is also antipathy within his ranks to the phenomenon of Parental Alienation. This is unbelievable when one considers that there are important judgments concerning the acknowledgement of the phenomenon of implacable hostility / alienation dating back to 1983.  Indeed this year marks the bicentennial of the first known case featuring alienating behaviours in 1818. 

 

The Recent Story after 2013

As recently as 2013, in spite of the long history of caselaw concerning implacable hostility and parental alienation, Wales most senior social worker, Albert Heaney, spoke on behalf of the family justice network (which includes the CEO of Cafcass (Cymru) and claimed that, ‘there is a lack of general support, both in academic and legal sectors for this concept’. The network also includes Wales most senior family judges but their input is restricted to being ‘observers’ of the proceedings owing to their judicial oath and strict rules concerning judicial independence. The Terms of reference for the network also confines the input of the judges to being mere ‘observers’. The FJN’s pearl of wisdom was brought to us 10 years after former president of the family division, Wall J, described parental alienation as ‘…a well recognised phenomenon’ ; 9 years after another president of the family division cited Wall J’s example and 4 years after HHJ Bellamy stated, ‘The concept of alienation as a feature of some high conflict parental disputes may today be regarded as mainstream.’ Between 2003 and Albert Heaney’s pronouncement in May 2014 there were over 30 reported cases featuring implacable hostility or parental alienation. Only 9 months beforehand the court of appeal heard Re A and the incoming president of the Family Division remarked. 

‘Drawing matters together, whilst I do not conclude that the outcome ordered by the judge is, of itself, wrong and therefore to be set aside, I am sufficiently concerned about the process of these proceedings as a whole, which I have held has violated the Art 8 rights of both M and her father, and also by the deficits in the judge’s analysis which I have now identified, to conclude, in the words of CPR, r 52(11)(3), that the outcome is ‘unjust because of a serious procedural or other irregularity’. For the previous systemic failure to end in a hearing which itself was highly unsatisfactory and where the judge has failed to conduct a sufficiently thorough analysis, makes it almost inevitable that this court will consider that it has a duty to intervene with the aim of establishing an effective and full rehearing.’ 

Sadly, even an intractable case, where the proceedings were conducted so fecklessly and hopelessly ineffectively, would appear to have failed to grab the attention of the family justice network and its members.

Intractable hostility does not appear to have made it onto the FJN agenda again until 2017. I cannot say exactly when in 2017 because the minutes of their meetings are no longer published. (So much for transparency!) Cafcass appear to have hijacked the committee and continue to do so. Yet again the number of reported cases involving PA / Implacable hostility continued to grow and Cafcass appeared to continue ignoring them.

The courts process appears to have irrationally embraced mediation for intractable dispute resolution despite the early warnings given by Sturge and Glasser in 2000 which gives us good authority for the futility of alternative dispute resolution where a parent is implacably opposed to contact. 

The term ‘implacable’ is used here to describe the intensity and unchanging nature of the hostility and the fact that any amount of mediation is unlikely to result in an alteration in the hostility felt by the parent.’

This is yet another instance where the ‘experts’ advise has been unceremoniously ignored without the benefit of a competing evidence base. Decision making processes that concern the futures and welfare of our children have continually been informed by ideology and dogma masquerading as research. It is a shameful paradox that the legal process used to determine our children’s best interests and welfare, which is supposed to be predicated upon evidence, is actually devoid of a coherent and intelligible evidence base.

By ignoring and effectively failing to properly even acknowledge the existence of parental alienation / implacable hostility — for 14 years (if we regard Wall J ’s pronouncement as acknowledgment) and 17 years (if we accept the Sturge and Glasser report as confirming the existence of these dynamics in the court of appeal) — we believe that Cafcass and Cafcass (Cymru) have failed and continue to fail miserably in their statutory duty to safeguard children from an increasingly well known and ever more common dynamic which is emotionally abusive.

The report commissioned by Cafcass (Cymru) from Cardiff University is a hopelessly inadequate, hurriedly cobbled together and cringeworthy response to a problem that has been ignored and unceremoniously swept under the carpet until very recently.

To plead with these fanatical ideologists who are more keen to preserve their own skins than they are to fulfil their statutory duty is patently wrong and simply not warranted. Rather, they should be explaining to the electorate why they have consistently failed to treat a burgeoning body of primary evidence in the form of case law with the urgency and respect it so rightly deserves. Those who could have challenged them earlier should now also hang their heads in absolute shame because they have prolonged the abuse and pain of children needlessly.

Cafcass Child Impact Assessment Framework (CCIAF)

NAAP Warning:

If you are an alienated parent, emotionally intelligent and have a family history of heart disease, you may wish to get a paramedic on standby BEFORE reading the CCIAF

close up photography of crying woman next inside room
Photo by Ikon Republik on Pexels.com

originally christened it the ‘High Conflict Practice Pathway’ (HCPP) and it was supposed to have been rolled out and available this spring. Springtime has been and gone and as the autumn leaves fall we now have the rebranded edition of the HCPP. This has now been called the ‘Cafcass Child Impact Assessment Framework’ (CIAF).

https://www.cafcass.gov.uk/2018/10/11/cafcass-publishes-new-assessment-framework-for-private-law-cases/

https://www.cafcass.gov.uk/grown-ups/professionals/ciaf/?highlight=child%20impact%20assessment%20framework

https://www.cafcass.gov.uk/about-cafcass/policies/

Reassuringly, Cafcass tell us, <fanfare>: 

  • ‘All private law practitioners will receive mandatory training in applying the framework’…and…
  • ’The training is due to be rolled out across Cafcass service areas from this month, with all practitioners expected to be trained by March 2019.’ 

Then my heart sank when I read: 

  • ‘As it is a development of our existing guidance, some of the issues will already be addressed in practice in current cases.’ 

This was bitterly disappointing to read because it was not long ago that the Cafcass CEO, Anthony Douglas, squirmed when fielding questions from Rob Harrison at the Fnf seminar on 17th August 2017. The reason I say this is because the FOI data Rob presented to Douglas demonstrated that the majority of their English staff really could not give a monkey’s about free online training about parental alienation and emotional abuse. However, by comparison, online training about expenses claims was exceptionally well subscribed. Candidly, after these deeply revealing and embarassing disclosures, Sarah Parsons coyly admitted: 

‘…it blew up too soon for us.’

When i read this I was already getting ready to call the paramedics because a cardiac event was immenent. 

You see, parental alienation, or ‘parentally alienating behaviours’ as Cafcass have rebranded them are nothing new. Undue influence, whether done by manipulative chancers or alienating parents, is really nothing new. Parentally alienating behaviours made their recorded debut in the English courts 200 years ago. Parentally alienating behaviours are even described biblically and in antiquity. As a phenomenon, parentally alienating behaviours have been researched and described throughout the history of mankind until they received more recent judicial acceptance in Re L in 2000. Only 3 years later, in Re O, Wall J affirmed that:

 ‘Parental Alienation is a well recognised phenomenon’. 

This was 15 years ago. Therefore, my heart was banging out complex rhythyms liked a massed samba band when Sarah Parsons uttered those imortal words:

 ‘…it blew up too soon for us.’ 

With incredulity i thought that a glacier would look lively by comparison.

So finally, now that it is with us – after having ignored case law fand seminal judgments that impacted significantly on their practice for a full 18 years- was it worth the wait ?

The short answer is NO.

As a brief exercise in fallacious argument and corporate damage limitation it is commendable. However, as a means of safeguarding this growing cohort of children from emotional abuse it is an abject, miserable and shameful failure. Having been exposed to daylight our hope is that it will hopefully be quickly consigned to the waste paper bin.

We have already heard that some folk and organisations see the mere mention of PA, albeit reinvented and redefined, as a step forward. However, there are still serious questions to be answered, such as:

  • why has it taken 18 years for cafcass to react to pertinent case law and begin to design a framework for dealing with parentally alienating behaviours?
  • what about the damage that has been done to children and families whilst cafcass have been denying the very existence of a phenomenon that has been the subject of findings in the family courts?
  • After the landmark case of Re L in 2000 and the Sturge and Glasser report, why did it take only four years to develop a domestic abuse strategy but 18 years to publish a strategy for dealing with PA?
  • Who gave consent for cafcass and its practitioners to cherry pick legal developments they like and ignore those that are not appealing and why should cafcass not be bound by the same rule of law as the rest of the uk and its public bodies?

There are many more questions but this will do to get the ball rolling. But’ the mere fact that we have to ask such fundamental question does give rise to another serious question. That is, IS THIS ORGANISATION EVEN FIT FOR ITS INTENDED PURPOSE IN THE FIRST PLACE?

Whenever Cafcass have previously received justified criticism and hit difficult times it appears that instead of looking to the real problems and addressing them honestly and openly they have elected to gaze at their navals whilst appointing PR consultants to weasel their way out of some pretty awful pickles. This strategy will not always work. Let’s hope that this turns out to be a turning point and a time of insight.