British Court Slams Elected MP

May 10, 2008 permalink

Lord Justice Wall of the England and Wales Court of Appeal has criticized John Hemming, elected as MP for Yardley, by name. We enclose below a newspaper article on the dispute, then a rebuttal posted by Mr Hemming on his own website, including a link to the judge's opinion. The case is that of Rachel Pullen, who was deemed incompetent to instruct a solicitor, so the Official Solicitor was appointed to act on her behalf, and let the case be decided by default.

The court criticizes Mr Hemming for saying that the court record was falsified. Zed McLarnon, Dr Stephen Baskerville and Canada Court Watch have found evidence (not allegations) of record tampering in family courts in the United States and Canada. It would be remarkable if British courts, operating with comparable procedures, had avoided the temptation to alter records of proceedings conducted in secret. British judges, along with American and Canadian counterparts, are possibly playing a game, pretending ignorance of practice known to all participants.

The court deals at length with the issue of the mother's lack of representation. The argument has to be long, because only a smokescreen can hide the injustice of this procedure.

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Birmingham Post

Hemming 'abused his position as MP' says top judge

May 9 2008 By Jon Walker

Birmingham MP John Hemming was accused yesterday of abusing his position in a scathing attack by one of the country’s top family law judges.

Lord Justice Wall said the MP’s behaviour was "not only unacceptable but shocking".

The condemnation followed Mr Hemming’s long-running campaign for reform of public family law, which has included the release of a pop single to publicise his cause.

The judge said: "As to Mr Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged.

"Speaking for myself, I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence."

Mr Hemming (Lib Dem Yardley) has accused social service departments of removing children from families unnecessarily, so they can be put up for adoption. He has also argued that the secrecy in which family courts operate prevents proper scrutiny of decisions.

In a hard-hitting speech last month in the Commons, Mr Hemming said: "In the deep, dark corners of the British legal system, hidden away by threats of imprisonment for those who speak out about injustice, we have allowed bad practice to fester.

"No action can be taken by a Member of Parliament to prevent solicitors from undermining their own clients because they want to keep the money coming in from the local council.

"No action can be taken by an MP to stop social workers who lie to the courts because they want to win a case and hit their adoption targets, or to stop doctors who provide rubbishy, unproven and unchallenged medical evidence that destroys families, but fills their bank accounts."

But Lord Justice Wall was equally outspoken, as he delivered judgment at the Court of Appeal in London yesterday.

He was ruling in the case of a woman whose child had been taken into care by Nottingham City Council. Mr Hemming had attended court hearings as the woman’s adviser.

The judge said: "Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them."

Referring to criticism the MP levelled against a clinical psychologist involved in the case, identified only by the initials HJ, Lord Justice Wall they were "a wholesale and entirely unwarranted attack on the professional integrity of HJ for which, once again, there is no evidence whatsoever".

The judge also referred to a parliamentary petition in which he said Mr Hemming indicated he believed the psychologist was in the pay of the local authority, and that he considered the system under which the woman’s case was being handled was "evil."

Lord Justice Wall said: "In my judgment, these comments are not only wrong and ill-informed. The simple fact remains that they have no foundation in the evidence presented either to the Nottingham County Court or to this court. That they are made publicly by Mr Hemming once again strikes me as an abuse of his position."

The judge ruled that Nottingham City Council was right to take the child, identified only as KP, into care.

And he said Mr Hemming had concentrated too much on the rights of the mother and failed to take into account the welfare of the child.

He said: "The danger of the mother’s approach, reinforced as it has been in my judgment by Mr Hemming’s partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP."

Last night Mr Hemming said: "I have been very critical of the judicial process in Public Family Law.

"I refute the criticisms in the Court of Appeal. But there is something far more important than whether or not my allegations are true."

He said a judgment had been made without the mother receiving an opportunity to present her case. "The mother . . . has been given no opportunity to challenge the allegations of the local authority.

"This is a case that must be considered by the House of Lords."

Mr Hemming’s single is to be released worldwide on May 19. The first verse, written before yesterday’s judgment, refers to the case, having changed the mother’s name to "Sarah".

The MP sings: "Sarah they said was slow; So her babe she had to go. In court the experts said; They turned the truth right on its head."

Source: Birmingham Post

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The Court of Appeal [2008] EWCA Civ 462

The linked judgment is the one in which I was criticised by the Court of Appeal for two points.

Bias and Apparent Bias

Firstly I provided the court with evidence that local authorities and Nottingham in particular had been in receipt of hypothecated funding ringfenced towards adoption. This practise ceased from 1st April 2008.

The second leg of Natural Justice requires Nemo Judex in Causa Sua. The decisions of the local authority in terms of both whether to initiate care proceedings and assessment fall foul of the need for the local authority to make those decisions in an unbiased manner. It is clear that both the existence of the BV163 adoption targets and the hypothecated funding (both scrapped from 1st April 2008) created an apparent bias on the local authority. Magill v Porter [2001] UKHL 67 [2002] 2 ACT 357 at [103] (Lord Hope: “The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”) The decisions of the local authority would have been potentially subject to judicial view. Similarly, the expert in acting as the agent of the local authority is subject to the same apparent bias. This could be merely a bias in terms of the selection of the expert rather than necessarily a bias in terms of the actions of the expert herself.

The danger, therefore, with the single expert system is that an apparent bias exists in terms of the selection of the expert whose evidence is then not contested as has happened in this case.

I did give reference to the legal precedents relating to bias when listening to opinion.

File Tampering

I pointed out to the court that certain documents were unusual. One document was sent by the Official Solicitor to the mother's solicitor. This document had an unusual address format and also did not have a "received" stamp from the solicitors office in which it would have been received.

A second document was a note in a completely different format to other notes. It indicated that the first document had been posted to the mother with a compliments slip. The use of a compliments slip was an unusual instance. The date on this note was clearly wrong as it was the same day as the first document had been posted when the first document would not have been received.

In the 1980s I was involved in a number of legal cases as an expert witness looking for fraud. I took the view that the above indicated that the file had been tampered with.

The Key Point

The key issue, however, is not whether or not the file had been tampered with, but that the mother had never been given an opportunity to put her side of the argument.

Human beings should have some rights. However, the one of the most fundamental has to be to have the opportunity to be heard in legal proceedings.

The Court of Appeal have determined that the fact that the mother was never given an opportunity to challenge the assertions of the local authority and its experts is acceptable.

This is a far more important issue than whether or not my contested assertions are true or not.

posted by john ¶ 6:56 AM 0 comments

Source: John Hemming's blog, entry for May 9, 2008