Transgender children, a new Code of Practice and a rare application: The last week in family law

The Court of Appeal has held that witnesses in a care proceedings case who were the subject of adverse judicial findings can challenge those findings on appeal. The judge had found that the social worker in the case and a police officer had embarked upon a joint enterprise to obtain evidence to prove sexual abuse allegations, irrespective of any underlying truth and of the relevant professional guidelines. Both the social worker and the police officer were named in the judgment. They appealed to the Court of Appeal, seeking to have the judge’s findings against them removed from the judgment. The Court of Appeal held that they were entitled to appeal and that there was “a wholesale failure to achieve a fair trial in relation to the matters that the judge went on to find proved against them”. The appeals were therefore allowed.

It has been reported that parents of transgender children fear that their former partners will seek residence orders in respect of their children, following a recent case in which Mr Justice Hayden removed from his mother’s care a seven-year-old boy who was “living life entirely as a girl”. The charity Mermaids, which campaigns for the recognition of gender dysphoria in young people, says that four mothers of transgender children have said their ex-partners have threatened to take them to court in the wake of the ruling. In fact, the boy in the case was not transgender. Mr Justice Hayden found that the mother had developed an unhealthily close relationship with the child, perceiving him as gender dysphoric or presenting him as transgender, when he was not. The case does not, therefore, say that transgender children will be removed from their parents.

A ‘misconceived’ application by a litigant in person was “an abuse of process”, the President of the Family Division Sir James Munby has ruled, in the case Akester v Fitzgerald. Mr Fitzgerald had had a civil restraint order made against him in proceedings in the Court of Protection concerning his aunt, after he had made some twenty-three applications to the court. The order required him to first obtain the permission of the court before he could make any further applications. He attempted to get around the order by making an application in separate financial remedy proceedings in connection with his divorce. The application sought to revoke orders made by the President in the Court of Protection proceedings. The President held that the application was an abuse of process, and therefore dismissed it.

Resolution, the association of family lawyers, has launched a new Code of Practice for its members. The organisation, which represents 6,500 family justice professionals who are committed to supporting couples to reach constructive solutions to family disputes, says it chose to revise the Code of Practice to reflect the changing family justice environment. Nigel Shepherd, Chair of Resolution, said: “When we first began in the 1980s, the world of family justice was very different … Now the environment in which we all work is changing beyond recognition and our Code needed to be updated in order to reflect the way in which all our members support people.” The new Code of Practice is being launched as part of Resolution’s Good Divorce Week, an annual awareness raising week to promote constructive resolutions to family issues. In addition to the launch of the new Code, Resolution is organising a major lobby of Parliament that will see 150 of its members meet with MPs in Westminster to promote their campaign for no fault divorce and rights for cohabiting couples.

And finally, the Court of Protection has begun hearing a rare application relating to the withdrawal of medical treatment from a patient with depleted consciousness. The patient was riding his motorbike to work in July 2015 when he was hit by a car driving down the wrong side of the road. He has since been in a minimally conscious state on clinically assisted nutrition and hydration, and some doctors believe he could live for another nine or ten years in this state. His family, however, say that this wouldn’t accord with his sense of independence and dignity, and his wife has applied for treatment to be withdrawn. The Walton Centre, where the man is a patient, has opposed the application, saying his condition could improve, but a doctor for the family has diagnosed him as being in a permanent vegetative state. It will be up to the Court of Protection to decide whether withdrawal of treatment would be in his best interests.