Transparency and Open Justice Conference 2020
Our 2020 conference – entitled Transparency and Open Justice – was held on Friday 24th January at Leicester City Hall. Her Honour Judge Jane George, Designated Family Judge for Leicester, opened the conference, welcoming the 150 delegates: as ever, a sell-out crowd.
KEYNOTE ADDRESS
Delivering the keynote address, The Hon. Mr Justice Keehan, Family Division Liaison Judge for the Midlands Circuit, described the efforts of the Public Law Working Group to achieve immediate and long-term reform to the way in which child protection cases progress through the family justice system. The Group – which had a wide remit, requiring the committee to grow from 12 to 38 members since inception – published 57 recommendations for immediate change and 16 recommendations for long-term reform in its report of July 2019. The Group has since processed hundreds of individual and group responses arising out of the public consultation which, happily, were in broad support of the recommendations. Mr Justice Keehan is hopeful that the final report will be published very soon and, as a result, anticipates that several Best Practice Guides will be circulated by the President of the Family Division over the course of the coming months. These are likely to be in relation to Special Guardianship Orders, Case Management and Section 20/76 Accommodation; all due before summer.
More difficult is the thorny issue of best practice guidance for social workers and local authorities in respect of pre-proceedings under the public law outline and what efforts should be made to divert cases from court prior to issue. It has been recognised that 60% of child protection cases are issued on an urgent basis; sometimes this is of course necessary, however, often these cases are ill-prepared resulting in unfairness to the parents, practitioners and the Court. The Group is clear that more work can be done pre-proceedings to ensure that even where a case does meet the threshold of requiring court intervention, all necessary evidence and assessments should be in place to allow the case to “hit the ground running”. The Group is anxious to make sure that any proposed guidance has the benefit of input from those working at the coalface; therefore consultation with social work groups and local authorities is ongoing. Interestingly, some of the proposed changes have already been introduced in Swansea on a trial basis, resulting in a reduction in the number of public law proceedings issued by (an almost unbelievable) 60% and savings to the local authority in the region of £900,000.
Delegates certainly welcomed confirmation that the dreaded Case Management Order will only be required at the first hearing in public law cases; short form orders will suffice thereafter. Mr Justice Keehan rather wryly observed that he often has difficulty in working out what it is that he has ordered when inevitably presented with a 6-page draft CMO. It was also made clear that, following a recent resurgence, the number of experts instructed in public law cases will need to decrease. Courts will be encouraged to examine whether such experts are really “necessary” with increased rigour.
Mr Justice Keehan spoke at some length about the need for solid guidance regarding the practice and procedure for the granting of Special Guardianship Orders. The issue has been explored by both a dedicated sub-group of the Public Law Working Group and the Family Justice Council, who have produced interim guidance. He reiterated that such orders are intended to provide permanence for a child and that they are closer to adoption orders than child arrangement orders. Every case requires a robust and detailed assessment which will inevitably take at least 16 weeks to complete. That the legislation does not require a child to have lived with a prospective special guardian prior to an order being made has been raised with the government, as it is the universal view of the Group that this ought to be a pre-requisite to the making of a final order. Research suggests that special guardians feel excluded from the court process, abandoned by local authorities following the conclusion of proceedings and provided with no support to assist them to navigate the requirements of contact between the child and its birth parents. All of these issues require attention. Mr Justice Keehan strongly reinforced the need for not only a robust assessment, but a robust and detailed special guardianship support plan which ought to be scrutinised by the parties and the Court before approving any orders. He railed against the making of supervision orders alongside special guardianship orders, pointing out that these are often only put in place either because there is insufficient confidence in the prospective special guardians as stable long-term carers for the child, or because of a lack of belief that the local authority will provide the requisite assistance to support the placement. Additionally, the need for a proper legal framework for any interim placements with prospect special guardians requires consideration.
Finally, Mr Justice Keehan recommended legislative change to supervision orders. He said that these either need to be given “more teeth” or a that new order ought to be brought into force; falling short of a care order, but which gives a local authority real statutory powers to provide support and intervention for families in appropriate cases. This was certainly met with favour by the delegation.
TRUE HONOUR
The conference then heard from Sarbjit Athwal and Dr Clive Driscoll, Founder and Deputy Chair respectively of True Honour, a charity which spreads awareness of so-called “honour-based violence” and supports all victims of HBV, forced marriage and female genital mutilation (FGM).
To say that Sarbjit’s story is a moving one would be a dramatic understatement. In a brave and emotional address, she described how she had found herself living at the mercy of her cruel and abusive mother-in-law and extended family members when she was forced into a marriage against her wishes at the age of 19. She and her sister-in-law, Surjit, endured emotional and physical abuse and controlling behaviour not only from their husbands, but from their mother-in-law, the scheming matriarch of the family. Over time, Surjit began to attempt to break free, hoping for a divorce and to live a life of happiness: but this was not to be. Sarbjit learned of the family’s plan to take Surjit to India and – terrifyingly – she suspected that they intended to murder her. Sarbjit did her utmost to alert the police and authorities to the plan before it was too late, but her attempts went unheard.
In 1998, Surjit was taken to India. She was murdered in cold blood, her body thrown in a river.
Upon her return, Sarbjit’s mother-in-law Bachan Athwal admitted to her what she and her son had done. Sarbjit – together with her children – had to remain living under the same roof as self-confessed murderers, forever at risk.
Despite the Metropolitan Police quickly becoming suspicious of the family and launching a missing person investigation in 1999, this proved fruitless. The family insisted that Surjit was alive and living in Mumbai. In 2001, a murder investigation began and the family members – along with Sarbjit – were arrested. Sarbjit saw her chance to finally tell her story in safety so explained everything she knew when interviewed, but she was not believed. Nothing was done. It was not until 2005 when, following a near-death experience, Sarbjit was able to gain the courage to escape her abusers for good. This time she was fortunate that the investigating officer –DCI Clive Driscoll – finally believed her story and took action to protect her.
Dr Driscoll described the investigation process which eventually led to the murder convictions of both Bachan and Sukhdave Athwal. He fully accepted the grave errors made by his predecessors – often led by prejudice and a lack of understanding of cultural issues – which had riddled the earlier investigations. These included a failure to share information across the relevant public authorities and undue deference to the family, despite them being suspects in a murder. Matters as simple as allowing the family to request that the police only circulate details of Surjit in her maiden name were obvious failures to explore the issues with necessary rigour. A warning letter which Sarbjit had written before the fateful 1998 India trip sat, unopened, for seven years on a police station shelf.
Since her escape, Sarbjit has rebuilt her life. Before establishing True Honour in 2016, she served as a PCSO in the hope that she could give something back to her community.
True Honour now aims to spread the “One Chance Rule” and to encourage those who may be investigating HBV to “Go the Extra Mile”. All professionals involved in the criminal, education, social care, health or family justice system must be on their guard and remember that they may only get one chance to help a person whom they suspect is the victim of HBV, forced marriage or FGM. They should go the extra mile to investigate and protect that person as far as possible.
The whole delegation was incredibly moved by Sarbjit’s poignant account, although buoyed by her and Clive’s steadfast commitment to improving awareness of the issues surrounding HBV across not only UK communities, but worldwide.
You can read Sarbjit’s story in her book Shamed: The Honour Killing that Shocked Britain – by the Sister Who Fought for Justice.
WORKSHOPS
Parental Alienation – Dr Julie Doughty
Dr Doughty took her workshop delegates through the main findings of her Cafcass Cymru-commissioned research review in an engaging presentation which pulled together both research and case law regarding parental alienation. The topic remains a difficult one, there still being no recognised definition of parental alienation. Academics are at odds as to whether the phenomenon should be internationally-recognised by the World Health Organisation as a diagnosable “syndrome”. Although there is a plethora of published articles on the topic, there is a dearth of empirical studies and data analysis, with most of the current research being polarised and positional. Additionally, there is a significant lack of evaluation as to the effectiveness of interventions, despite these having become big business in the USA. Jean Mercer has recently published research which suggests that commercialised American parental alienation treatments (PATs) are actually harmful and intrusive for children. Professor Doughty also pointed to research by Joan Meier which concludes that there is a significant issue of gender imbalance in the way in which allegations of parental alienation are treated by courts and a report by Linda Neilson which reiterates the importance of reducing child stress and supporting the child’s resilience through a family breakdown. The current court approach seems to focus on apportioning blame between the parents rather than on the child’s needs and interests. Professor Doughty cautioned against the instruction of inappropriate experts in such cases where there may be a risk of confirmation bias and amour-propre.
Functional Family Therapy – Joanna Pearse
Joanna Pearse delivered a dynamic workshop describing Functional Family Therapy, a system of therapeutic intervention designed for families on the edge of care. A child welfare adaptation of this evidence-based model – FFT-CW – is currently being delivered by Leicester City Council in a push to divert cases from court-proceedings. This team accepts in the region of 80 referrals each year for families of children of all ages where there are concerns regarding the parents’ caring abilities and the family is at risk of child protection court proceedings. Already, after only 18 months, the Leicester FFT-CW team has a remarkable success rate of one third of cases being closed to the local authority within 6 months of their involvement.
The original FFT model has been rolled out in areas across the UK and the world. This focusses on families of children aged 11-18 where the concerns do not necessarily revolve around parenting capacity, but where the children’s behaviour and the associated risks mean that the parents are struggling to cope. Joanna described how the model does not place the parents “one up” hierarchically, but instead encourages the family to repair their relationships first in order to work towards improving their overall functioning. The first phase is motivation, which often involves reframing negative patterns and giving nobility to the children’s behaviours. This allows the family members to develop a different story of themselves and their relationships. The second phase is behaviour change: moving towards making better choices. Interventions are tailored towards each family and, in particular, each individual dyad.
Our Family Wizard – James Evans
Our Family Wizard is an innovative smartphone application which has found a wide audience in the USA and is becoming increasingly popular in the UK. James delivered a very helpful and informative workshop which outlined the app’s key features and benefits. It is intended for separated parents with the aim of improving their co-operative co-parenting relationship by providing a comprehensive functional platform for all communication regarding childcare issues. Features such as a joint calendar, messaging, expenses log, information centre and photo sharing provide a real-time, instant and safe form of information sharing for parents where communication has become a difficult feature of their relationship. Additional benefits such as the “Tonemeter” encourage positive and non-abusive dialogue and promote a healthier co-parenting environment. James explained how the app (which is a paid subscription service, but which can also be provided for free or at discounted cost in certain circumstances) can be used by the courts and incorporated in child arrangements orders. The app also logs an accurate record of all exchanges and can be accessed by third parties or even viewed by professionals and the Judge with the parents’ agreement, providing the best available evidence when necessary to resolve matters of dispute which may arise.
TRANSPARENCY PROJECT
The final session of the day was delivered by Lucy Reed, barrister and legal blogger at St John’s Chambers, and Louise Tickle, journalist, who are members of The Transparency Project. The Transparency Project is a charity which works towards improving the quality, range and accessibility of information available to the public about family law.
Louise and Lucy explained how they met and how their paths had crossed in various guises over the years, before co-founding The Transparency Project. Their different professions had allowed each of them to challenge one another’s perceptions of the family justice system, gaining both an insider and outsider perspective.
During their lively and insightful presentation they posed a case study to the delegation, deliberately highlighting the sense of panic that practitioners may feel when faced with a sudden application for permission to report aspects of family proceedings in the press. It was clear that this was an alien concept to many in the audience, such applications being incredibly few and far between in our area. Lucy and Louise explained how the balance must be struck between the competing rights of those involved, including the strong public interest in the principles of open justice and accountability of public authorities. They recommended entering into a constructive dialogue with members of the press so as to ensure that anonymity of the child and relevant parties can be preserved, while also allowing the case to be reported as fairly and accurately as possible. It was clear from the debate that there are still many practitioners who remain apprehensive about the increasing trend towards press reporting of family law issues, something which – it seems – will inevitably need to evolve in the near future.
Further recommended reading:
FPR PD 36J – Pilot scheme: Transparency (attendance at hearings in private)
President’s Guidance: Guidance as to reporting in the Family Courts
The Transparency Project Guidance Note: Publication of Family Court Judgments
THANKS & CONGRATULATIONS
HHJ George concluded with words of thanks to the committee of the Leicester and Leicestershire Family Law Training Association for their organisation of yet another successful conference: Fiona Gingell, Ben Mansfield, Della Philips, Lynne Nelson, Margaret Robinson, Mandy McCrory and Gill Graham. Thanks and gifts also went to the members of HMCTS court staff who work very hard behind the scenes to make every conference run smoothly: Emma Holyoak, Louise King and Justine Blackwell.
Finally, there were kind and heartfelt words of congratulations to the Association’s Chair, Martin Kingerley on his recent and well-deserved appointment to Queen’s Counsel. Martin closed the conference – his final as Chair – expressing his gratitude to the Judiciary and local colleagues for their support during his many years of practice in Leicester. We wish him all the very best in his future endeavours; he will be sorely missed.
Thank you once again to everyone who attended this year’s conference. We are incredibly lucky to have such a supportive and proactive cohort of practitioners across the spectrum family justice in our local area.
Laura Vickers