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July 22, 2008 permalink

In two articles from the UK, MP John Hemming reports on multiple injustices in family courts. In the other, the Times is able to report a bit more on a child they call "S" but is held in secrecy worthy of the name double 0-S. His stepdad helped him and his mother escape from Britain, and served a longer jail term than many muggers.



John Hemming: Justice must be dispensed openly and with compassion

Jul 22 2008 By John Hemming

The secrecy in the Family Courts has given rise to a culture of secrecy throughout the operation of Family Law. In fact much of that secrecy was merely custom and practise rather than legally enforceable. Furthermore some recent changes in 2005 and 2006 have allowed chinks in the armour concealing the activity in the Family Courts.

Dealing, as I have, with people who are refugees from the state in the UK it has been interesting to see what has been happening. My advice to families is to remain within the law. However, some of the court judgments seem quite draconian.

One that surprised me recently was where an order was obtained which prevents a mother leaving the UK. Her children are abroad with their father and she is not allowed to leave the UK to visit them. The court wants the children brought back to the UK and so has taken her passport. I didn’t know that it was lawful to prevent someone leaving the UK. In fact it is against one of the protocols of the European Convention of Human Rights (one which the UK is a signatory). The country in which the children are living won’t allow them to travel to the UK, hence we have an impasse.

Another case involved a family now in Ireland where the mother divorced the father without him being told. She was told that if she divorced the father she could have her children back. Hence she divorced him, but they refused to return the children. She then found she couldn’t remarry him as Ireland would not recognise the divorce because the court had decided to dispense with the legal need for the papers to be served on him.

I have also seen a number of cases where teenage children are forced to stay in care for trivial reasons when they want to remain with their family. The way the system works is that a Guardian Ad Litem is appointed to represent the child. The problem is that often the guardian ignores the child’s wishes. Children who are gillick competent (age 12 plus) and are past the age of criminal responsibility are told they are too stupid to instruct a solicitor. I have written to CAFCASS about this to find out what their official policy is.

I had the big row with the Court of Appeal over an adult’s “capacity to instruct a solicitor”. What happened was that an arm of the state called the “Official Solicitor” came in and decided to concede the local authority’s case without challenging the papers and against the wishes of the mother.

This exclusion of the mother from court proceedings to me is one of the worst things. Arguably someone who has been sectioned (which she hasn’t) should be constrained from starting court cases where there is no sense. However, to prevent someone from defending themselves and essentially have a government bureaucrat plead “guilty” on their behalf has to be one of the worst abuses of the rule of law possible.

The rule of law requires that people are given an opportunity to have a trial. If the court silences them then it is not a trial. There is a similar case in Birmingham which is going to the Court of Appeal. It is quite clear that we need greater transparency and accountability in family justice. There are far too many tragic stories that arise from the caprice of the system.

Source: The Birmingham Post

From The Times, July 22, 2008

Times wins ruling over secrecy of family court

Rosemary Bennett, Social Affairs Correspondent

Details of private family court proceedings that led to a mother fleeing the country with her son after he was placed in foster care have been disclosed after legal action by The Times.

The highly unusual ruling allows the publication of undisclosed details of the case. The boy’s stepfather was sent to prison for 16 months for helping the mother to remove him from care and flee abroad.

She has since had another baby, the couple’s first child. The stepfather has been released from prison but is forbidden to contact his wife.

The Times fought to publish more information after an outcry from readers when the case was reported by Camilla Cavendish . She highlighted the perceived secrecy of family courts and the lack of scrutiny of social workers, who have sweeping powers to remove children from their parents. Times readers were particularly outraged that the stepfather served a longer sentence than many muggers.

Sir Mark Potter, the President of the Family Division, dismissed Medway Council’s argument that it should not be named publicly in case it led to identification of the child, known as S. With more than 300 children in local authority care in the Kent borough, he said that this was unlikely.

The judge accepted that there was considerable public interest and that reporting a fuller story would “enable the public to form its own view whether the actions of the [Medway] council or the decisions of the court to date have been fairly characterised”.

His summary of the care proceedings provides an insight into the secretive family courts, where decisions to remove children from their parents’ care are made every day. The Times can report for the first time that social workers became involved shortly before the mother and father split up. In the ensuing care proceedings the mother made claims of domestic violence that were “heavily disputed” by the father. The judge found that, while the mother had exaggerated many claims, the father had on occasion acted “in an aggressive and intimidating manner, which placed S at risk of harm”. The mother was found to have a “tendency to play the role of victim”.

Judge Cox, the family court judge, concluded that S was “suffering emotional harm due to the conflict between the parents”. She ordered that S be taken into foster care until matters improved. There were also concerns about living conditions, with the family home described as “like a building site”. At a later hearing the judge said that she was troubled that S was keeping secrets with his mother, who was manipulative.

In a final care order the court ruled that the boy would stay in foster care and his mother was given a list of conditions to meet before he could be returned. These included weekly counselling, a move to secure accommodation and a settled lifestyle. She was also not allowed to discuss with her son the possibility of his returning to her care without social workers’ permission. Contact with her son would be reviewed and would depend on her “promotion” of his foster placement. She also had to cooperate with “counselling with S concerning the father’s gender identity issues”.

A final hearing on the case was due to take place last October. A social workers’ report said that there had been no significant improvement in the mother’s “insight/approach” towards S. Although the mother had moved house and remarried, the social workers noted that she was still challenging the care proceedings: “Significant improvements are not possible while the mother continues to be of the opinion that much of the previous judgments has been wrong or exaggerated,” they wrote.

They concluded that adoption would give S “the best possible opportunity for permanency”.

At 4am on September 11 last year, the mother, assisted by M, her new husband, took the child from his foster home and drove to France. When M returned two days later he was arrested and charged with abduction.

John Hemming, a Liberal Democrat MP campaigning for more openness in family courts, said: “I am pleased that Sir Mark has recognised the public interest in people understanding that the reasonings of the family court outweighs the need for the activities of practitioners to be kept secret.”

Source: London Times (UK)