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Family justice: the secret state that steals our children
July 7, 2008 permalink
The London Times has started a series on family law by Camilla Cavendish. The Times also has a Family Justice page and a page for how to find help and advice online. We are still waiting for the Globe and Mail, the National Post and the Toronto Star.
Family justice: the secret state that steals our children
Every year thousands of children are taken from their parents, largely on the say-so of ‘experts'. It is a secret and sometimes unjust process and the system must change
Two weeks ago I got a phone call from a woman I hadn't seen for four years. She was calling to tell me that she was moving abroad, unable to bear the pain of living in the same country as the daughter she is no longer allowed to see. “I wanted to thank you,” she said, “for being the only person who ever gave me a fair hearing.” I was seized with guilt. This woman had asked for my help, and I had utterly failed her. Her story had been just so incredible. She described a world where courts need no criminal conviction to remove your child, only the word of a psychiatrist or doctor, and can deny you the chance to call any expert in your defence. A world that uses the “welfare of the child” to gag you from discussing your case. Where even if you prove yourself innocent on appeal, your children may already have been adopted: in which case you will never be allowed to contact them again. A world which had treated her so badly, this rather pretty and utterly normal young woman, that she was sincerely thanking me just for listening.
It had taken three calls from this lady and her boyfriend, a clean-cut army bloke, before I had agreed to go down to their provincial semi. We sat in their front room with the curtains drawn while they got out box after box of papers. And I got my first inkling of what it is like to go through the door into the secret state.
This particular case had started, as many do, with a custody battle. The mother had started to worry about her ex-partner's behaviour during his visits to their daughter. She approached social services to ask if they could supervise his visits. When the child then told a teacher that her father had touched her in bad places, the police were called. They filmed the child repeating the allegations. The upshot? A psychologist who watched the film but never met the mother, father or daughter wrote a report alleging that the mother had coached the daughter to lie. He never appeared in court, and was never crossexamined. Yet the court, encouraged by social workers, accepted his view. The judge ordered that the daughter should go to live with her father - a man the mother was convinced was an abuser.
My bitter regret, now, is that I did so little about that case. At the time I couldn't help wondering if there was not more to it than the mother had let on. And there may well have been. But today, I'm not so sure. Because so many elements of her story fit patterns that I have since heard again and again. The reliance on experts who have never met the accused. The stormtrooper behaviour of some social workers. The legal aid solicitors acting for parents who are always in a rush. This mother was plunged into a world of acronyms and organisations that she knew nothing about. She was always on the back foot. Having been the person who reached for help from the system, she became its victim.
The tale niggled away at me. I started asking questions. Soon after this encounter I met Denise and Nigel Clarkson, who had lost both their daughters after one sustained an unexplained injury, and who fought like tigers to get them back. Through the Eaton Foundation, which they founded, I met American doctors and radiologists who were challenging many of the assumptions made by British doctors who were diagnosing abuse from so-called “shaken baby syndrome” and certain tiny bone fractures.
I began to write about cases where judges were speaking out publicly about the failings of social services. In early 2006, Mr Justice Ryder denounced Oldham Council for taking a baby away from his parents because of a doctor who “strayed from the role of expert into the role of decision-maker” and a family court judge who “failed to detect that that was what had happened”. Two courts refused to let the parents seek a second medical opinion. It was a year, the most formative year of that child's life, before the Court of Appeal allowed them to call a neurologist who proved that the injury was caused before birth. We know of that blunder only because the judge involved chose to make his judgment public. Few judges do.
The stories began to pour in. People left messages on my answering machine saying that the system was rotten but that they dared not speak out, because they had managed to get their children back. Some had taken a sick child to hospital, only to be accused of physical abuse. Some had been accused of “emotional abuse”, a category that has no definition in British law but which has jumped 50 per cent in the past tenyears as a reason for taking children into care. Quite a number had complained about their local authority, for letting them down over special-needs education, for example, only to find themselves in turn accused of neglect. One woman in Sheffield sobbed that her two autistic sons had been robbed of their mother, as well as the care they needed, because she was accused of making up their symptoms.
Some parents complained about social workers and hospitals refusing to give them copies of any papers or X-rays in their cases, which they needed to mount appeals. Every single one felt that the system was set against them before they could even assemble a defence. Some had real problems: violent ex-partners or unreliable new ones, low IQ, brushes with drugs in the past. Many had never been known to social services or the police before. All were desperate to be given the chance to prove that they were good parents, some begging the local authority to install CCTV cameras in their homes.
Many alleged that their children were treated far worse in care: unloved, not allowed to do homework, some with a new bruise almost every time they came for supervised contact, bruises that were never explained.
Since local authorities generally would not talk to me, citing confidentiality, I still had only part of the picture. Was there really a problem, or were these people all lying? I looked for figures. Were particular local authorities taking above-average numbers of children into care, for example? How many of these proceedings were contested? How many mothers were being accused of having Munchausen's Syndrome by Proxy, a psychiatric disorder that is supposed to be rare but seemed to be cropping up too often in my conversations? I would call the Home Office, which would refer me to the Lord Chancellor's Department, which would refer me to the various incarnations of the Education Department, which would usually refer me back to the Home Office. Many of my questions were met with the answer that the data was “not held centrally”. This whole area started to look more and more like a hole inside government that ministers were simply not interested in.
Telling the stories was fiendishly difficult. First there was the legal requirement to avoid publishing anything that might even indirectly lead to the identification of the child involved. This is understandable, but it means that what journalists can write is sometimes so thin, so patchy that it is hard to ask anyone to believe us - because the most pertinent facts are often very distinctive. It also means that we can never humanise stories with photos, of the kind that helped to secure the freedom of Angela Cannings and Sally Clark. This is despite the fact that children can be pictured and named in adoption magazines, even while their frantic parents are trying to mount an appeal to get them back. Secondly, there were often additional reporting restrictions. Some of these were sought by local authorities as soon as I called them to try to get their sides of the stories. Some of these orders were so badly drafted that our lawyers simply could not tell what we could say. Some bore no relation to the draft that we had been sent before the hearing. It costs money to fight such orders, money that local media may not have and nationals are reluctant to commit.
The more often my articles were spiked or denuded of interesting detail, the more incensed I became. I began to feel that we, the liberal press, were part of a conspiracy of silence against people who had no voice. Worse, their children had no voice.
Some of these children were being told that they were in care because their parents no longer wanted them. As soon as a care order is made, the local authority controls all communications between parents and children. In many cases contact is gradually reduced, sometimes from a few hours a week to an hour or so a month, at which point social workers can return to court and claim that the child no longer has a strong bond with his family. Such tactics are unbearable. Clearly there must be some protection for authorities that work in extremely tough territory. Social workers are lambasted as often for failing to protect children from danger as for misjudging the innocent.
The problem is when laws that are meant to protect professionals from malicious allegations become an armoury against truth. There are good reasons why it is illegal to name a child involved in family court proceedings. Family law cases are fraught enough, without publicity adding to children's suffering. But it is quite wrong that laws framed to protect child privacy are being used to protect the professionals. Two years ago, when the children taken into care by Rochdale Council in the fabricated “satanic abuse” scandal left care and publicly attacked the council for removing them, the council argued that it would be wrong to name the social workers because that would breach the children's privacy - even though the children were desperate to speak out the minute they were free.
It does not have to be like this. The media cannot name the victim in rape cases. But we do report the evidence. Family courts, which operate in camera, have a lower standard of proof than criminal courts. They “convict” on a balance of probabilities, rather than beyond a reasonable doubt. A lower threshold is thought acceptable because civil courts cannot send people to jail. But to lose your children, and for them to lose you, because a court finds that abuse is a “probability”, is a life sentence of another kind. This makes it even more vital that the system is accountable. Yet I cannot think of another area of public life that operates with so little scrutiny.
The main piece of legislation governing child protection is the 1989 Children Act. The Act was passed in the wake of the Cleveland scandal, in which allegations of sexual abuse by two consultant paediatricians at one hospital led to 121 children being removed from their homes. The Act clearly states that there should be “minimum intervention in family life” and that a court order should be made only if “it can be shown that this is better for the child than not making an order”.
Yet some parts of the country seem to have strayed a long way from that. This year, the education watchdog Ofsted became the regulator for Cafcass, the Children and Family Court Advisory and Support Service that provides guardians ad litem for children in care cases. Ofsted's first two reports so far have been devastating. “Inspectors could not find evidence,” Ofsted says, “about how service managers satisfy themselves that family court advisers are reaching sound conclusions in order to make the right recommendations to courts about children's lives”. It found that “most reports contain recommendations to the court that fail to take account of a key principle of the Children Act that there should be minimum state intervention in family life”. There is much more in similar vein. The hapless state of Cafcass is failing both children of innocent parents and children who are genuinely at risk.
Cafcass is one safeguard in the system that is manifestly failing. Another safeguard is that local authorities cannot remove children without a court order. But the manner in which these court orders are sought means that they are rarely refused (the Government has been unable to give me a single example of a refusal). Parents are not always informed that an order is even being sought, so are not able to defend themselves. Even if they are there, the momentum is unstoppable.
Bill Bache, the indefatigable solicitor who acted for Sally Clark, explained it to me this way. “Court proceedings are initiated within a day or two. The local authority knows the ropes. Most parents, including the brightest and most articulate, are often too distressed and shocked to think straight. They may well turn up unrepresented. The local authority makes its case, often in lurid terms, stressing that the children are in acute danger and they are requesting an immediate interim care order. There is no time sensibly to evaluate the evidence, therefore, no doubt wishing to be safe rather than sorry, the court grants the order. Suddenly the children are gone.”
It is impossible to describe the shock, the isolation, that parents feel once their child is gone. Even educated people who can afford a good lawyer struggle to think straight. They feel alone against the system. Judges rely on reports by experts, social workers and guardians, many of whom are used to working together. This can produce a fatal lack of objectivity. I have spoken to some exemplary social workers and judges in the past few years. It is not my intention to demonise them all. But we must be able to spot whether the same individuals are reaching erroneous conclusions over and over again. At the moment any expert, social worker or judge who makes mistakes, goes beyond their brief or is on a crusade against parents is virtually immune from scrutiny. They do not expect that their evidence or their judgments will ever be made public. Remember that Professor Roy Meadow was only uncovered because he gave misleading evidence in the criminal courts, which are open. If family courts remain closed we will never be able to feel sure that justice is being done.
Over the next few days I hope to paint a more detailed picture of the pieces of the secret state, offer some explanations as to why mistakes are made, and to outline some solutions. The Times' interest is more than theoretical: we will continue to challenge various injunctions in the courts. But we also need your help by asking you to write to your MP. We will not give up. Because to sever a child from its family without due cause is licensed state oppression of the worst kind. It is, in fact, child abuse.
Why the Government must act
Privacy laws are designed to protect at-risk children. Yet these same laws are cited to prevent local authority childcare professionals, expert witnesses and guardians from being subjected to scrutiny for decisions that can tear families apart.
The system claims that the welfare of children is paramount. But the only way to make the welfare of children paramount is to make childcare professionals properly accountable for their decisions.
The press is allowed to report the workings of the criminal courts, even in rape cases, where victim identities are kept confidential. Yet it is denied access to the family courts that make decisions with far-reaching consequences. In 2005 the Constitutional Affairs Select Committee advised that more transparency was needed and that family courts should be opened to the press in all but exceptional circumstances.
The Government consulted on the proposals, recognising that public confidence was plummeting. But it lost its nerve. The Ministry for Justice has yet to publish the results of a second consultation, which ended last October.
Eight months later the Government cannot even say when it will respond to the consultation.
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Source: The Times (UK)
A Conspiracy of Silence
Allowing the family courts and social services to operate in secret allows miscarriages of justice without the possibility of redress
Every parent fears losing their child. Except for those who have hit rock bottom, having a son or daughter taken into care is a desperate experience. The social workers, medical experts and judges who decide to remove children sometimes save lives by doing so; sometimes they ruin them. That is a grave responsibility. It means that the child protection system should be accountable and transparent. Shockingly, it is neither.
As Camilla Cavendish reports in Times2 today, serious miscarriages of justice are occurring behind the closed doors of social services departments and family courts. The area of child protection is described as “a hole inside government”, with ministers unable even to say who is responsible. Too often, a “secret state” is at work that seems to assume that parents are guilty, and then obstructs them from establishing their innocence.
Some parents are unable to get copies of the evidence against them, including X-rays. Others are refused permission to call experts in their defence. Many fear that the professionals are distorting evidence and amplifying problems which should be solved by supporting families, rather than by tearing them apart.
It is impossible to know the extent to which miscarriages of justice may be occurring, because the whole system is shrouded in secrecy. Gagging orders on families and draconian reporting restrictions mean that very few cases come to light. Judges can choose to make their judgments public: but few do.
The authorities justify secrecy by arguing that the suffering of children caught in these fraught situations should not be made even worse by publicity. But secrecy also protects incompetence and wrongdoing. It should be quite possible to maintain the anonymity of children while also holding the professionals to account. Rape victims are anonymous in rape cases: that does not prevent police officers making statements in open court, nor the media reporting the evidence in full.
Family courts have a lower standard of proof than criminal courts. Yet they pass effective life sentences. If parents prove their innocence on appeal but their child has been adopted, they will never get that child back.
It is not the intention of this newspaper to demonise social workers, nor expert witnesses, nor judges. It is our intention to expose mistakes, and to create a system which can acknowledge that error is human. Many social workers feel that they can do no right, being criticised for negligence if they fail to spot abuse in time, then accused of being overzealous if parents are found innocent on appeal. That is understandable. They work in fraught situations. They need more support, and oversight. But the minority must not be allowed to act as though they were above the law.
This newspaper recently reported on the case of Louise Mason, whose children were kept from her for two years by social workers, despite her having been exonerated by a jury. Her third child will probably never be returned to her, because he is felt to have bonded so well in foster care.
The Times believes that these are matters of pressing public interest. Many of our readers have already urged us to do more. There is growing suspicion of the authorities which are meant to support families. The only way to quell those suspicions is to let the light in to the family courts.
From today it will be possible to go online (timesonline.co.uk/familycourts) and express support for openness. Please do. We will not be part of what has become, in effect, a conspiracy of silence against children who have no voice.
Source: The Times (UK)
Family courts: the hidden untouchables
In the second of our special articles, we explain how family courts operate in secrecy
I wrote yesterday about my gradual realisation that the child protection system is a sort of secret state. Many social workers, psychiatrists and judges are doing their best to help families. But given their power to tear families apart, the lack of accountability is astonishing.
In March 2006 a High Court judge, Mr Justice McFarlane, condemned social workers who had removed a nine-year-old girl from her parents for 14 months in the erroneous belief that her mother was suffering from Munchausen's syndrome by proxy. They had jumped to this conclusion after the mother took the girl to hospital for stomach pains, and a nurse found nothing wrong. They asked magistrates for an emergency protection order to remove the child without telling the parents or seeking any medical opinion. It was granted.
The judge found that every one of the assertions made by the social services team leader was “misleading or incomplete or wrong”. He criticised magistrates for granting the order to take the girl. But he did not name the social workers. So we can never know who they are, or whether they are still working. It is a fair bet that none of the people involved has been disciplined.
Frontline social workers are employed by councils, which are theoretically controlled by elected councillors. But in child protection cases, councillors can be kept out of the loop. John Hemming, the Liberal Democrat MP who campaigns on these issues and has also been a Birmingham councillor, says that officials routinely refuse to answer questions. “Even as a councillor and member of the relevant scrutiny committee, they say no, we're not going to tell you anything, because of the secrecy of the family courts.” The privacy of the child has become synonymous with the privacy of the professionals.
Parents who want to complain have to go first to the local authority that they are complaining about. Most fear that to do so will entrench the local authority's dislike of them. The few who are brave enough to complain receive a routine response saying that the matter has been investigated internally, and that the local authority is satisfied. Chris Smith, who lost his children to adoption, discovered that the investigator appointed by the local authority was not allowed to see any of the crucial court documentation. When he challenged the council concerned to release key papers under the Data Protection Act, they delayed for so long that the evidence arrived too late for his appeal. Many parents believe that their conversations with social workers have been distorted. But they are denied access to the case notes, even though these can be crucial in the courtroom.
Few parents have heard of the General Social Care Council, which has the power to remove workers from the Social Care Register. Since 2001 it has removed 17 people, mostly for inappropriate relationships with service users. There are 82,000 social workers on the register. Some of these seem to believe that they are above the law.
In February this year, a single mother called Louise Mason was reunited with two of her three children after a five-year battle against social services. It had started when she took her four-week-old baby to hospital. Doctors at first diagnosed a fairly common abdominal tumour. But they sought a second opinion in Belfast, where a doctor suspected that the injury might have been deliberate. Social services and police were called and her children were removed.
It took a year for the police to interview Mason under caution, and another year for her to be tried. During that time her access to her children was tightly curtailed. At worst she was allowed only an hour and a half with them once a month. Eventually a jury unanimously found her not guilty of causing grevious bodily harm. But social workers stuck to their own “guilty” verdict. They pressed on and served adoption papers. It took another two years for her to get two of her children back, with the help of the doctor who had made the original diagnosis. But the middle child had been allowed to see so little of her that he is likely to be adopted rather than returned.
What this case demonstrates is that parents can still lose their children even after being acquitted in the criminal courts. It is impossible to know how common this is. We know about this case only because the High Court judge who heard the appeal ordered that Louise Mason should be named.
It is not only social workers who are unaccountable. The secrecy of the family court system means that there is too little scrutiny of the psychiatrists and paediatricians who give evidence. A small but powerful group of radiologists, for example, believes that certain types of “greenstick” fracture are caused by parents twisting and wrenching a child's limbs - even if there are no bruises, cuts or broken bones. These fractures are often picked up when a child is taken to hospital with an unexplained head injury and given a full skeletal X-ray. One mother who took her baby to hospital with a nosebleed was accused of abuse after an X-ray showed three such fractures. There are now grave doubts about whether these painless fractures are caused by adults at all - yet courts still tend to consider them as absolute proof of abuse.
In 2003 Sally Clark, Trupti Patel and Angela Cannings were all cleared of murdering their babies. Lord Justice Judge declared that no one should go to prison again solely on the basis of expert witness evidence, and the criminal law was changed. But there have been no such changes in the family court system. “Expert” evidence almost always takes precedence over evidence from relatives and people who actually know the family.
The problem is compounded by the fact that judges are also acting in private. Unless they choose to make their judgments public there is no way of scrutinising the quality of those judgments.
Parts of the legal profession are concerned. In March 2005, a seminal report by the Constitutional Affairs Select Committee stated that “a greater degree of transparency is required in the family courts. An obvious move would be to allow the press and public into the family courts under appropriate reporting restrictions”. It advised that the restrictions on the discussion of their cases by parents should be removed entirely.
The Government launched a consultation but local authorities, the NSPCC and some family lawyers lobbied successfully against openness, citing the “welfare of the child”. In June 2007 Lord Falconer of Thoroton, the Lord Chancellor, stated that a survey of 200 children had shown that many would be anxious about the presence of the press in the family courts. He stated that he wished to concentrate on “improving the information coming out of family courts, rather than on who can go in”. This meant giving more information about how the court has reached its decision to the people involved, and encouraging more judges to make their (anonymised) judgments public. A year on, ministers cannot say whether a single shred more information has been forthcoming.
The oldest law of bureaucracies is “first protect ourselves”. The need to shed light into dark corners is made all the more pressing by some particularly pernicious allegations that parents find almost impossible to disprove - as I will describe tomorrow.
Source: The Times (UK)
Family justice: your word against theirs
In the third of our special articles, we look at the pernicious types of allegation that are almost impossible for parents to disprove
I wrote on Monday about the many desperate parents who have approached me after losing their children to social services. One thing that they all have in common is shock at how quickly the system seems to decide against them, and at how doggedly it sticks to that view despite all evidence to the contrary. Some parents find that minor issues are magnified until the conclusions reached are out of all proportion. The opposite also seems to hold true: some children come to terrible harm because the system systematically underestimates the risk to them.
Why does this happen? Eileen Munro, a reader in social policy at the London School of Economics and the author of Effective Child Protection, says that “child protection work inevitably involves uncertainty, ambiguity and fallibility”. She believes that it is human nature to form a view based on first impressions, and stick to it. “This has a devastating impact in child protection work,” she says, “in that professionals hold on to their beliefs about a family despite new evidence that challenges them. It can be equally harmful whether they are over or underestimating the degree of the risk to the child. They may continue to believe parents are doing well, even though there are successive reports of the child's being distressed or injured. Innocent parents wrongly judged abusive can face the frightening experience of being unable to shake the professionals' conviction, however much counter-evidence they produce.”
The risk of groupthink makes it all the more important that decisions are transparent and open to review. We all know of the tragic deaths of children such as Victoria Climbié, who with hindsight should have been saved. We know much less about the tragedies of children wrongly separated from their families, because of the secrecy of the system.
There are several types of allegation that are almost impossible for parents to disprove. One is “emotional abuse”. You can see why the category exists. Ill-treatment comes in many forms, not all of which leave visible scars. But in that nebulous phrase lurks the potential for injustice. In the past ten years there has been a 50per cent increase in the number of parents or carers accused of “emotional abuse”. It now accounts for 21 per cent of all children registered as needing protection, up from 14 per cent in 1997. Yet the term has no strict definition in British law.
Emotional abuse is not “neglect”: that is a separate category. The Department of Health defines it as “persistent emotional ill-treatment ... [that] may involve conveying to children that they are worthless or inadequate ... and may feature age or developmentally inappropriate expectations being placed on children ... Some level of emotional abuse is involved in all types of illtreatment of a child, though it may occur alone.”
Local authorities interpret this in different ways. In Nottingham, emotional abuse is “an ingrained pattern of interaction ... which it is essential to observe and understand over time”. In Enfield it includes “swearing”, “conditional love” or “discriminatory remarks”. I have heard anecdotally of councils, including West Sussex and Cambridge, that almost never use the term. There are no statistics to confirm this. But it seems that child protection is as much of a postcode lottery as cancer screening.
Expert medical evidence is also notoriously difficult to disprove, even where there is no circumstantial evidence. Lord Justice Judge (who was named as the next Lord Chief Justice yesterday) has warned against an “over-dogmatic” approach in the criminal courts, when we are “still at the frontiers of knowledge”. But it is less clear how family judges should treat syndromes such as Munchausen's syndrome by proxy (MSbP).
Since the discrediting of Professor Sir Roy Meadow, who first defined it, Munchausen's has been relabelled as “fabricated or induced illness”. This is a perverse disorder in which an adult invents or deliberately creates a child's illness to draw attention to himself or herself. Even the experts agree that Munchausen's is rare, likely to affect no more than 50 people a year. But campaigners fear that far more people are being accused of it. For the traits of the Munchausen mother are broad enough to cast suspicion on many whose children are genuinely ill. They include a reluctance to leave the sick child's side, familiarity with medical terms and, most devastating, the denial of accusations of abuse.
Two years ago, a group of MPs with falsely accused constituents asked the Government how many people nationally were accused of having MSbP. The Government replied that it did not collect such data - even though Department of Health guidelines tell charity workers, nursery nurses, teachers and even pharmacists to look out for the condition.
Last year, social workers in Hexham told a pregnant student at Edinburgh University that she was in danger of developing MSbP when her baby was born, so they were thinking of removing the baby at birth. The student, Fran Lyon, had developed self-harming and eating disorders seven years earlier, after being raped. But these are disorders from which she has fully recovered. The psychiatrist who treated her as a teenager states that she poses no harm to her child. So does another psychiatrist, who knows Lyon through her charity work. The only person who seems to have entertained the idea that she could develop MSbP is a paediatrician who has never met her. But social workers have given his evidence more weight. Lyon fled to Europe last year, unable to trust her own country, and is now in a legal limbo.
To err is human. To refuse to acknowledge that is inhumane. No professional can be right all the time, particularly in this fraught territory. That is why wholesale reforms are needed - as I will explain tomorrow.
Source: The Times (UK)
Family justice: what we can do to protect our children
A ten-point plan to make our courts system fairer
Over the past three days The Times has set out some of the ways in which it fears the child protection system is being subverted by forces that are largely unaccountable. We believe that the Children Act has unintentionally handed enormous power to local authorities and experts, which some are using arbitrarily. And that secrecy keeps injustices from public view.
Opening up the system sounds easier than it is. Yet there are concerns that it could lead to paediatricians and other experts being vilified and refusing to do child protection work, social workers becoming demoralised and the exposure of families' private troubles. That journalists would not keep confidences. That reports by local papers might inadvertently add to the suffering of children by revealing their identities to people living near by.
These are valid concerns. I know two couples who have adopted children in very difficult circumstances. The natural parents of those children are quite unable to care for them, but they are also vengeful. Those couples and those children should not have to live in fear of being tracked down. They have made me think very carefully about the nuances of this. But I feel that these considerations can no longer outweigh the risk of grave injustices being perpetrated against children. And that we can put safeguards in place that will work.
When the Constitutional Affairs Select Committee heard evidence on this issue three years ago, many of the respondents seemed to assume that media access would inevitably hurt children. That is wrong. In the Court of Appeal almost all family law hearings are in public with reporting restrictions imposed. The press attends family proceedings in magistrates' courts, again with reporting restrictions. The press simply does not identify children when it is illegal to do so. Many of my articles may seem incomplete precisely because I am bending over backwards not to publish information that might identify the child.
The Australian and Canadian family court systems are open and transparent. Children's identities are protected but judgments are public, and so is the evidence on which they are based. That means that justice can be done, and be seen to be done. Their press apparently takes no interest at all in the majority of cases. This would surely be the same here.
The Constitutional Affairs Select Committee took the view that courts should be opened in all but exceptional circumstances. In July 2006, the Government seemed to agree. It published a consultation paper stating that greater openness was required in family court proceedings “so that people can understand, better scrutinise decisions and have greater confidence”. It proposed that the media should attend proceedings “on behalf of and for the benefit of the public”, with reporting restrictions to keep the parties anonymous. Almost a year later, the Lord Chancellor, Lord Falconer of Thoroton, rowed back, citing a survey of 200 children in which a slender majority had expressed anxiety about letting the media into the family courts. He said that openness would be improved “not by numbers or types of people going in to the courts, but by the amount and quality of information coming out of the courts”. A second consultation paper proposed keeping courts closed, but encouraged judges to release anonymised judgments.
That was a tragic loss of nerve. For there is no way that the growing lack of public confidence in the system can be solved by the publication of a bit more information that the authorities decide to let us see. Publishing an anonymised judgment without the evidence will not let ordinary citizens see what is being done in their name. We cannot tell, for example, whether witness X repeatedly goes beyond their remit or offers hearsay evidence. We cannot tell whether local authority B or judge C repeatedly gives X's evidence undue weight. If it was felt too risky to reveal their names, I would suggest that each expert witness could be given a unique code. That would deter the sensationalist hack from malice, but would enable the determined truth-seeker to track the behaviour of individuals over time, and hold them to account.
Many of the children's charities and lawyers who lobby against openness are trying to protect vulnerable people from damaging publicity. It is a tricky balancing act. But the clincher for me is this. One of the most draconian decisions the State makes is to deprive a child of a parent's love and care. Removing a child from its family is not simply a private matter. It is a decision that demands the very highest standards of accountability and transparency.
I believe that wholesale reforms are needed, which can be summed up in ten points:
- Open family courts to the press in all but exceptional circumstances (as recommended by the Constitutional Affairs Select Committee).
- Let any parent or carer accused of abuse call any witnesses they need in their defence. At the moment, they are routinely refused permission to do so.
- Give automatic permission for parents who are refused legal aid to get a lay adviser to help them present their case. This is routinely refused.
- Remove the restrictions that prevent families from talking about their case (as recommended by the Constitutional Affairs Select Committee).
- Review the definition of “emotional abuse” across local authorities, to make sure that it cannot become a catch-all for overzealous officials.
- Provide an automatic right for parents to receive copies of case conference notes and all evidence used against them in court, just as they would in a criminal trial.
- Create an independent body to oversee the actions of social services, with proper sanctions. If that body is to be the General Social Care Council, make it easier for parents to go directly to that body rather than having to face delays from the local authority.
- Let children in care waive their right to privacy if they wish to speak out. For gagging children is surely not consistent with promoting their welfare.
- Restructure CAFCASS, the Family Court Advisory Service, from being an organisation that reports on the parents to the courts to one that actively promotes the parenting needs of children. The primary focus should cease to be assisting the court process. It should be diverting parents away from contested hearings into the making of parenting plans.
- Review the recent legal aid cut-backs that are deterring lawyers from taking on these complex family cases. It is quite wrong that desperate parents are unable to find a lawyer to help them in their time of need.
Thank you for listening. As Jeremy Bentham said, where there is no publicity, there is no justice. If you support these ideas, please do go online, support our campaign and e-mail your MP.
Source: The Times (UK)