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Rebalancing the Family Justice System

Syvil Lloyd Morris, Solicitor Advocate and co-founder of Bastian Lloyd Morris, challenges three precepts of the Family Justice System.

Syvil Lloyd Morris, Solicitor Advocate and co-founder of Bastian Lloyd Morris

Since the advent of the Covid-19 pandemic and the etymological development of the word 'lockdown', the Family Court has become replete with cases where men (and it is usually men) are accused of either having abused their children, or posing a serious risk of abuse to their children, in some way. In fact,  ss. 1, 17, 31, 37, 38 and 47 Children Act 1989, not to mention PD 12J FPR 2010 and the provisions of Part IV Family Law Act 1996, where appropriate, have never been so often litigated. It is not anticipated that the current high volume of these cases will decrease, now that the cross-governmental definition of domestic abuse and its impact on children is on a statutory footing (see ss. 1 and 3 Domestic Abuse Act 2021). In a somewhat curious way, this intense preoccupation with domestic violence, its impact on children and the effects of child abuse is what we have come to expect, if not want, in the Family Court, in these difficult times (see e.g. Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448). In this sea of cases, especially those which involve the local authority, and/or the police,  we will usually find three precepts sailing under the flag of so-called 'professional caution': namely a) a social worker's mere suspicion often becomes inexorably conflated with being actual fact; b) 'disbelieving' family members are often automatically ruled out of consideration to become alternative carers; and c) 'temporary' separation of the allegedly abused child from the biological family is often the starting point for intervention, rather than the last resort.

In the 14 or so years, since 'Baby P' we've really come a long way, and escaped the web of inertia epitomised by the death of Victoria Climbie in 2000. Civilised Society cannot tolerate any form of abuse and it (society) must be cautious to ensure that there is a firm response; right? Indeed it has been said that 'child protection work is today carried out in a rabid and unforgiving atmosphere, generated by a well-grounded public fear that too many children are being abused in our society' (AA & 25 Ors (Children) [2019] EWFC 64). Therein lies the standpoint of  'professional caution', sailing in the same waters which carry the concepts of the 'burden of proof', the 'standard of proof' and what might stand as being a lighthouse for 'reasonable grounds' to justify a local authority issuing care proceedings, or a police officer implementing protective measures. We will look at all of this in more detail after briefly constructing a floating analytical platform.

Proving a 'fact in issue' in the Family Court operates on a binary axis (see Re B (Minors) [2008] UKHL 35).  He who alleges a wrong must prove it on the balance of probabilities; otherwise as far as the law is concerned it simply didn't happen. Whilst there is plenty of scope to deploy reasonable inferences to help establish the necessary proof (see e.g. Re I-A (Children) [2012] EWCA Civ 582) there is quite literally no room in law to say 'it might have happened' (Re B (Minors) [2008]). It either did happen or it didn't. But before jumping in one end of the pool or the other, the court should be careful to ensure that it has heard and read all of the relevant evidence, including, importantly, what the parents have to say (Re I-A (Children) [2012]). It is essential that the court forms a clear assessment of the parents' credibility and reliability and explains how and why their oral evidence was relevant.  Put another way, the court has to 'survey a wide evidential canvas' (Re U, Re B 9 (Serious Injuries: Standard of Proof) [2004] EWCA Civ. 567), because 'a consideration of credibility will necessitate a wide consideration of all the circumstances' (Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448).

On the other hand, the statutory construction, 'reasonable grounds to believe', operates on a different analytical paradigm.  Using the language of the costs judges, here we are looking at a belief which falls so far short of being fantastical or incredible, that to act upon it cannot be viewed as being 'reprehensible' or in any way representative of being an 'unreasonable stance' (see Re T (Children) [2012] UKSC 36). Equally, here we are definitely not seeking to equate the 'reasonable belief' with being an incontrovertible fact. Think everything in the middle, typically what is 'sensibly' possible (see Re K (A Child): Threshold Findings) [2018] EWCA Civ 2044). Put another way, 'probability' is not to be conflated with 'possibility'. Now back to our three usual precepts.

Firstly, suspicion of child abuse, quite wrongly, is often narrated as being synonymous with an incontrovertible fact that there is or has been actual abuse. This may be explained by standard 'professional caution', which might be expected, for example in so-called 'shaken baby' cases or 'unexplained injuries' cases. Less understandable is where this risk-averse approach is taken in minor injury cases, or even minor bruising cases. Often, a child's presentation with the relevant symptoms will, of course, quite rightly point to reasonable suspicion, but the practical effect of professional caution, in some cases, is that the parent assumes there is a requirement for him to prove his innocence. Although this assumption is obviously wrong in law, parents can be driven by a powerfully psychological imperative to do so, even eventually conducting their cases on that basis (see e.g. AA & 25 Ors (Children) [2019] EWFC 64).

In the 'unprecedentedly complex case' of AA & 25 Ors (Children) the court pointed out that the 'legal consequences of exoneration are no different from those where the court has declined to make a finding'. The decision is binary and '[a]ny such person is not and must not be treated as being left under a cloud of suspicion'. But the judge did then go on to say that a party seeking a finding of exoneration assumes an evidential burden to satisfy the court of their innocence on the balance of probabilities (see also Re BB (Children) [2021] EWFC 2021). He then proceeded to positively exonerate a number of named people, whilst stressing that there should be no future distinctions made on those who had been exonerated, and those of whom no findings were made. This exemplifies the powerful psychological value of being exonerated, despite the fact that usually there is no legal value if a finding has not been made.

Secondly, in these cases, family members are usually (yes 'usually'!) ruled out as so-called alternative carers simply because they don't share the professionals' belief that a beloved son/brother/father/partner could have knowingly or deliberately perpetrated the alleged abuse. However, this lack of belief is, in the opinion of many, a completely natural reaction, but not the one that accords with social work practice. On any view, it is unrealistic to expect family members, even distant ones, to react to serious allegations, which involve significant harm, with the detached forensic analysis of a seasoned professional. In the case of Re V-Z (Children) [2016] EWCA Civ 475 the court pointed out how intellectually unattractive it is to criticise alternative carers for 'lacking insight' in relation to concerns where the relevant material had not been shared. Actually, in the mundane reality of private practice, this is pretty much the norm. Nevertheless, the received wisdom persists that lack of belief equates to lack of insight.

Most importantly, professional caution will almost certainly result in the alleged abused child being 'temporarily' removed into the care of the State. Since the advent of the Covid-19 pandemic, professionals and the courts now subscribe even more to a risk-averse culture. 'Temporarily' in this context is a legal term of art, usually meaning 26 weeks. In practice it can be very much longer, especially where the child's injuries are 'unexplained'. It has to be said that sometimes the period is lengthened because of the State's limited resources, in terms of court time, the number of suitably qualified judges and the availability of professional social workers and other experts on the ground.

As many commentators have pointed out, many times, quite rightly, this is a situation exacerbated by the Covid-19 pandemic, notwithstanding the current 'red hot' input of the Cloud Video Platform (CVP) online court hearing resource (Ryan, M., Rothera, S., Roe, A., Rehill, J., and Harker, L. (2021) Remote hearings in the family court post pandemic: Nuffield Family Justice Observatory). Actually receiving evidence via video hearings is not new in the Family Court (see e.g. Re S (Relocation: Parental Responsibility) [2013] EWHC 1295 (Fam); and Re ML (Use of Skype Technology) [2013] EWHC 2091 (Fam)). However it has never been the norm, nor should it be (The Remote Access Family Court – Version 5; Mr Justice MacDonald). Under any objective analysis the ineluctable lack of gravitas, in an online hearing, is simply unacceptable where professionals are making such life-changing decisions.

So 'what is to be done!' is the plaintive cry. Obviously, there is no single 'magic bullet' but the analytical picture could be brightened by combining the following five possible approaches. We will briefly look at these now.

Various attempts have been made to lift the so-called 'veil of secrecy' in the Family Court. Reporting restrictions continue to abide despite journalists' presumptive right of access (see r. 27.11 FPR 2010; PD 12I; PD 36J; s. 12(1) Administration of Justice Act 1960; s. 97(2) Children Act 1989). Perhaps the fire of momentum needs to be re-ignited. Actually, despite the fact of three so-called 'rapid consultations' on remote court hearings, since May 2020 (the most recent being in July 2021), the opportunity has been missed to specifically involve the press. Surely there needs to be a balance between privacy and openness (Re J (A Child) [2013] EWHC 2694 (Fam)), but a system that is shrouded in secrecy does not engender good practice. It is extremely important that the 'Overriding Objective' is seen to be a real thing of value, rather than a mere recitation of words. The 'equal footing' principle in r. 1.2 FPR 2010 needs to be seen as being an actual reality, working in practice and action. Variations of these arguments have been rehearsed time and time again. The fact that 'courts should be astute to assist reporters seeking to attend a hearing or to relax reporting restrictions' (Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230; President's Guidance as to Reporting in the Family Courts, 2019) does little, if anything to provide comfort.

Quite a lot is currently being written about the new Domestic Abuse Act. I won't add to the many words of wisdom that have already migrated to the printed page. Under any objective analysis, the Act does much to redress the balance of injustice that some victims face in the justice system. I do however ask whether the pendulum has swung too far, almost founding a presumption of guilt, in these cases? This may be exemplified by the police power to issue Domestic Abuse Protection Notices (DAPNs) and apply for Domestic Abuse Protection Orders (DAPOs) (see Part 3 Domestic Abuse Act 2021). Speaking anecdotally, I would suggest that many men accused of domestic abuse feel as though they come to court having to prove their innocence. This is more than a passing concern. Re AA & 25 Ors (Children) [2019] is a very good example of this phenomenon where the judge was asked by a number of parties to go beyond the findings and to expressly exonerate named individuals from complicity in the 'gross perversions' alleged.

This leads on to a third but very important ancillary point. If there was greater recognition that women are also capable of perpetrating abuse, there might be less of a tendency to assume that the male abuser is simply a perpetual abuser, who until now, had not been caught. I am not suggesting that women default to abuse, just highlighting the fact that neither do most men. I would suggest that this perhaps obvious fact is shrouded by the uncritical acceptance that we live in a 'patriarchal' society and that domestic abuse is a 'gendered' phenomenon.

Fourthly, perhaps the 'disbelieving alternative carer' should be afforded some form of legal protection, so that they are automatically treated with less 'professional caution'. This is not as radical or controversial as it, at first, sounds. It could result in fewer children being 'temporarily' removed from their biological family. As a matter of logic, it is simply absurd to conflate lack of belief with lack of insight. That is tantamount to assessing risk in a vacuum, something which the Court of Appeal strongly disapproves of (see e.g. Re T [2004] EWCA Civ 558, [2004] 2 FLR 838). 

Finally, when an obvious mistake has been made, in relation to an allegation that has been proved to be either malicious or fallacious, no step should be left unturned to facilitate the prompt return of the child to his or her birth family. It is simply not good enough to blame delay on lack of resources or lack of time, or the pandemic. To paraphrase the words of Ecclesiastes, 'the tears of the Accused have no comforter', so facilitating a prompt return to normality is the very least that the State can do.