Introduction: what you are up against

_{While poverty should entitle families to additional support it is instead often used to allege ‘neglect’.}

Introduction: what you are up against

By law children should only be removed from their family if they are at risk of ‘significant harm’. But this is not how the law is applied much of the time. It is commonly abused by the professionals whose job it is to ‘act in the best interests of children’ – local authorities, Children & Family Court Advisory and Support Service (CAFCASS), even judges … We spell this out here so it is clear what we are up against, and we offer some useful tips based on the experiences of many families. 

The relationship between child and mother, or other primary carer, who is the first provider of physical and emotional security and protection, is crucial to a child’s welfare. Without that protection, a child can be vulnerable to every abuse of power by state institutions, violent predators and profiteers. Every loving mother knows that. Yet that primary relationship is routinely dismissed and trampled on. Laws are often applied in ways that disregard or underestimate the significant harm caused to children by separating them from their mother and families. This is despite much evidence from children, mothers and attachment experts that separation is deeply painful and has lifelong consequences. Social workers have told us that they get little or no training in considering such trauma, yet they are the ones who decide when the children should be removed. They treat separation as a hiccup in children’s lives. 

While poverty should entitle families to additional support it is instead often used to allege ‘neglect’. Coming to the attention of the authorities as being ‘in need’ can easily lead to a child protection order and the child being removed. 

While children should not be taken from their families unless they are at risk of ‘significant harm’, allegations of ‘future emotional harm’ are also commonly used to remove children who have not been harmed and are doing well with their mother. These allegations are often not based on evidence of actual harm but on speculative ‘possible’ harm which might happen in the future: speculation is regularly given more weight in court than the harm and trauma inflicted on children by uprooting them from their family. 

Even breastfeeding, which is recognised by the World Health Organisation andothers as the best food, essential to the welfare of the child, and her/his human right, is often dismissed and even used against the mother [1]. We know mothers who were accused of being unreasonable or manipulative (even ’alienating’) because they refused overnight contact while the child was still breastfeeding. 

Reports on your child and her/his relationship with you can be written on the basis of short assessment visits by arrogant professionals who think they know best and have been given powers to intervene in your family life. Mothers often ask, ‘How can they after a 15 minutes conversation know better than me about my child and me?’ They can’t. But their recommendations carry great weight in court. 

Mothers often complain about social services and CAFCASS reports being ‘full of lies’ and ‘inaccuracies’, and about social workers who are ’hostile from the beginning’ or who are ‘nice’ only to elicit information and responses from you that they will then use against you in court. Sadly, we have seen many judges rubber stamp outrageous recommendations from social services and CAFCASS. So, don’t assume that the authorities will be ‘understanding’ or ‘on your side’.They are often more concerned with keeping their jobs and exercising power over you than with the welfare of your child. 

Bias, especially against single mothers and working-class families, is common – poorest communities are 10 times more likely to be under scrutiny with 45% of children referred to social services before they are five. [2] In many areas, low-income families are also families of colour and/or immigrant, and racism is likely to play its part. We see time and again that if you are disabled, have learning difficulties, are young or have been ‘in care’ as a child you are more likely to have your children taken from you than to get the support you are entitled to. 

We have questioned many social workers and CAFCASS child guardians about decisions which were blatantly unjust and asked why? Every time we are told that local authorities are guided by the fear of another Victoria Climbie [3] or Baby P [4] tragedy occurring. Why should thousands of innocent families pay for the negligence of local authorities in these terrible cases? Why should children who are loved and cared for be removed because local authorities did not remove those who were being tortured and ultimately killed? It is a poor excuse and an attempt to justify the most harmful abuse of power. 

There are also financial incentives to taking children away: keeping up or increasing social service budgets, adoption incentives, rampant privatisation of children services. [5] 

Since the Children and Families Act 2014, local authorities looking at adoption have a duty to consider placing the children with foster carers who are already approved as prospective adopters. This effectively fast tracks adoptions since social services can then claim that the child has bonded with the foster/prospective adoptive parent. While the initial separation from the mother is belittled, separation from a foster parent (i.e. a ‘corporate parent’) is often given weight. 

90% of adoptions are without the consent of the birth family. The push to fast track adoptions which many politicians have promoted and the increased privatisation of children services have resulted in many more adoptions. Many local authorities are eager to have children adopted, especially babies. 

Court secrecy. Controversially, family court hearings are not held in public, unlike criminal court hearings. It is claimed that this is intended to protect children and their families from undue media attention. Yet the press can attend, though they can’t report in detail. The main problem is that supporters and members of the public are not allowed in court. You are isolated in a frightening and intimidating courtroom facing social workers who want to take your children away and the father who may be violent and manipulative – all this often without even a lawyer on your side or not one who is prepared to fight for you. 

Many of the injustices perpetrated in the family court have to do with this court secrecy as people are not allowed to know what goes on behind closed doors. Mothers don’t know what they are walking into. In addition, gagging orders can be imposed on mothers not to discuss the case with anyone. These can be successfully challenged, but are very intimidating!

One family court barrister we have worked with says:
The family courts are at breaking point. Care cases are often listed as preliminary directions short hearings but then converted to a contested removal hearing . . . Babies and their mothers are often in hospital having given birth and the local authority is applying for a removal the same day. Parents attend court believing their case is listed for a short mention and then they face a contested hearing. 

Courts are overwhelmed with over-listing, crumbling buildings and ’targets‘. Frequent changes of social workers and other personnel leads to conveyor belt decisions about human beings. Local authorities often leave paperwork to the last minute and instruct inexperienced lawyers to represent them for very low fees. Instructions are given which often the key social worker disagrees with but is overruled by his/her team manager. 

Lawyers cluster together at court often leaving parents bewildered, whilst they decide on the children’s fate over cups of coffee and other chat. Lawyers often tell their client ‘what’s best’ in a short conversation. [C]hanges of legal representation are very common – you might have a different lawyer each time and no choice about the matter. Often it is the same group of lawyers doing most of the care work in an area, recommending each other and representing a parent one day, a guardian the next and a local authority the next. This creates a much too easy-going relationship between the advocates where common styles are acceptable and ‘outsider’ lawyers are frozen out or treated disdainfully if they do not stick to a ‘party line’ about the process. 

Cases involving disputes over children which are not care cases i.e. private law disputes are treated as second class in relation to care cases yet serious emotional and physical harm can feature in them. Care lawyers have a very low regard for this work and insufficient attention is paid to it by the court as there is a mantra that it is ‘six of one and half a dozen of the other’ when parents are in disagreement. 

Yet some of the most difficult cases of parental undermining and abuse and harm to children are private law cases. Maybe the reluctance of care lawyers to do this work is that they do not get their legal aid payment for doing it until the end of the case and often the cases take a very long time to conclude. If you have a private law dispute e.g. child arrangements, unlawful removal, applications for removal from the jurisdiction, try to ensure you have an experienced and keen lawyer acting for you. This is a complex area of law and you should seek independent legal advice. [T]here are . . . competent and caring lawyers, both solicitors and barristers, who are dedicated to their areas of expertise.

Protests outside the family court 

Court secrecy is being challenged inside and outside the court. We hold a protest outside the central family court in Holborn, London, on the first Wednesday of every month (hopefully we’ll be back once Covid restrictions allow, in the meantime we have a virtual protest on twitter at the same time). We hope that other cities will start their own. Watch our blog for news of other venues. The protests enable mothers and other primary carers to have some of the public voice they have been denied inside and to make injustices visible to the outside world. They also contribute to changing the climate in which legal arguments will be heard. 

Spelling out the truth and useful tips

Keep in mind that while thousands of children continue to be unjustly removed, there is now awareness that this is happening. (Even the former and the present presidents of the Family Court have warned against it.)