20 Bullet Points – Long

20 BULLET POINTS TO REMEMBER SO SELECT ANY THAT APPLY IN YOUR CASE (On average two or three will probably apply to you). They are summarised here and explained more fully later.

Do not waste time reading all the 20 bullet points just look carefully at any that apply in YOUR case 

1:- SS cannot stop you leaving the UK if no court order has been made. If you are pregnant and the “SS” are threatening to take your baby as soon as it is born your safest option is to leave the UK and take refuge in another European country where benefits are excellent and the regime is sympathetic such as Sweden for example.

Even when there is a court order (often made in your absence while you are abroad) the publicity generated by the SS pressurising you to return can still end up with parents, the winners!

There are no longer any frontier controls at the borders between 22 EU countries. This is thanks to the Schengen agreementwhich is part of EU law.

The Schengen rules remove all internal border controls but put in place effective controls at the external borders of the EU and introduce a common visa policy. The full Schengen members are Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden (but not Ireland and the United Kingdom) plus Iceland and Norway (which are not EU members).

Parents win right to keep fourth child but vow to fight for the other three

Better still providing no date for a family court hearing has even been fixed, if both parents are later found together with the children in France, Spain, Italy or Portugal the SS can do nothing at all about it!

2:- Children in care cannot be prevented by force from afternoon visiting or from telephoning their parents! (reverse charges if necessary) Also they can send and receive emails, so DON’T lose contact.

If social workers call the police to say a young person of ANY age is missing and they believe there is a danger of significant harm they can go to court for a recovery order and the police can take that person back temporarily. They have no power however to stop an immediate return to the parent’s home next day and after a few days of going backwards and forwards will nearly always give up !  Please note that police sometimes claim that they have a warrant or have authority but have no need to show any documents to support this!

BUT read section 50, subsection 8 of the Children Act. They DO have to show you written authority!

8)  Where a person is authorised as mentioned in subsection (7)(c)—

    (a)  the authorisation shall identify the recovery order; and
    (b)  any person claiming to be so authorised shall, if asked to do so, produce some duly authenticated document showing that he is so authorised

Remember that any court document MUST BE SIGNED by a judge or a magistrate and usually stamped by the court. NEVER be taken in by a false order such as a paper that is waved in your face but not given to you to verify!

If children are under 16 and over 12 they are often classified as “young persons” and even when in care they cannot be prevented from visiting parents as social workers would risk charges of assault and false imprisonment if physical force was used to stop them.

CHILDREN AND FAMILIES PROCEDURE MANUAL

Section D: Family Proceedings and Protection of Children

JUNE 1999 Page 2 of 4

D10.1 A Recovery Order provides legal powers to help secure the return of a child missing from placement.

D10.1.1 A Recovery Order may only be made in respect of a child who is subject to:-

i) a care order (including interim care order)

ii) an emergency protection order

iii) police protection

D10.1.2 A Court may make a Recovery Order if there is reason to believe that:-

a) the child is unlawfully taken away or kept away from the person with responsibility for the child’s care, or

b) the child has run away or is staying away from the responsible person, or

c) the child is missing

D10.1.3 A Recovery Order requires a person harbouring a child to hand him or her over and a person with information about the child’s whereabouts should disclose that information to the Police or a Court. It also empowers a Constable to search named premises.

Section 50(i)

D10.1.4 If a child is missing from placement every effort must initially be made to try and secure the return of the child by agreement. If the person holding or harbouring the child refuses to hand the child over and there is no immediate danger then that person should be notified in writing of the action which the Authority will take if they refuse to comply. If however there is an immediate risk then an application can be made without notice.

D10.1.5 Effect of the Order

i) The Recovery Order must name the child and the person who has made the application.

ii) The Order directs the person holding the child to produce him/her at the request of the authorised person and empowers the authorised person to remove the child.

iii) If any person has information as to the child’s whereabouts, he or she is required by the Order to disclose this information if asked to do so by either a Police Officer or Court Officer.

3:- Shaken baby syndrome cannot be proved for sure without body bruising or a previous history of injury or abuse. (See addendum to attorney general’s report which seems to be available from here but at a cost.)

Here is the Committee Report

Allegations that a baby has been shaken and consequently injured or even killed are hard to prove but also hard to disprove! Top experts who appeared for both sides in the Louise Woodward case in the USA disagreed with each other and testified in favour of the side that paid them in each case!This does cast doubt on the reliability of highly paid experts who give categoric opinions in court!

The attorney general called for a review by the best medical and scientific brains in Britain last year and in the addendum to the report paras 14.1 and 14.2 concluded that even when all 3 symptoms were present (known as the triad; being retinal bleeding,subdural bleeding, and brain damage) it would NOT be safe to conclude that a baby had been shaken without a previous history of abuse or other injuries such as extensive bruising or broken bones.

Lords Hansard text for 14 Feb 2006 (60214-04)

4:- “Failure of a baby to thrive” can be disproved by comparing progress after removal with that before, and in any case your own GP is the best person to say you have done all you could. Similarly your own GP is the best person to write a statement saying you have no need to take drugs like prozac to”manage your anger” and indeed that you are advised NOT to take any drugs against your will,since sometimes you may be ordered to take them by persons with NO medical qualifications such as social workers, guardians and even judges!

5:- Munchausen syndrome is a scientifically unproven theory and now largely discredited, that needs actual proof that some act of the parent has deliberately caused illness or physical harm to the baby or young child. Social workers have no qualifications to make this diagnosis though they often do!

In recent years, several mothers in the autism community have been accused of Munchausen Syndrome By Proxy (MSBP), in which the mother is thought to be imagining the medical problems in her son/daughter. Former law professor, Dr. Bill Long, wrote a review paper for lawyers and judges on MSBP. Dr. Long’s Executive Summary is below. See the unabridged report (41-page .pdf)

MUNCHAUSEN SYNDROME BY PROXY (“MSBP”)/FACTITIOUS DISORDER BY PROXY (“FDBP”):

A Guide for Judges, Lawyer and Parents
Dr. Bill Long; drbilllong@gmail.com

Executive Summary

For more than 30 years prosecutors, social workers and many mental health professionals have used a diagnosis of MSBP/FDBP as a means of taking children from their caregivers and then, often, bringing charges against the caregiver for abusing the children. At the heart of MSBP/FDBP is the allegation that the caregiver (usually the mother) is either lying about the medical symptoms experienced by the child or has induced real symptoms through poisoning or other injurious actions against the child. Why would the mother/caregiver do such a thing?

Those who “believe in” the diagnosis argue that she does so in order to get attention from the medical community, often for unmet needs in her own life, and become the center of attention in a complex medical drama that she is inducing. Thus, the heart of a MSBP/FDBP allegation is that the mother or child’s caregiver is secretly “working the system” and trying to deceive multiple levels of medical staff as she goes about her nefarious design of injuring and perhaps even killing her child. Because the allegation of MSBP/FDBP relates to child endangerment, it has been a “hot button” sub-issue in the larger world of child abuse that has been at the fore of American social services and law in the past generation.

It is often difficult for prosecutors to “prove” that a mother has actually injured her child, especially since so many of the mothers alleged to be “MSBP/FDBP” “moms” themselves have medical training, personal charm, apparent solicitude for the child’s well-being and the well-being of the medical staff attending the child. Direct evidence (e.g., eyewitness testimony of induced poisons) is hard to come by; circumstantial evidence, too, is often scanty. Thus, the allegation of MSBP/FDPB—that the mother suffers from this “syndrome”–can be a sort of evidentiary boost for the prosecution when its case might otherwise be weak. By arguing that it is consistent for the sufferer of the “syndrome” to be an outwardly caring mother, one who eagerly seeks medical advice and affirms the medical staff, prosecutors can leap over a sometimes yawning evidentiary gap and help the state pry the child away from the parents.

Then, as is argued in the paper, prosecutors need only refer to vague “studies” that show that children returned to MSBP/FDBP mothers face a significant likelihood of physical danger and even death at the hands of the caregiver, and courts almost always deprive parents of their child/children. Though child abuse is a significant problem and one that ought to be seriously addressed at all levels of society, the allegation of MSBP/FDBP can function as a evidentiary “short cut” to help make a prosecutor’s case for him/her when direct or circumstantial evidence is lacking.

One of the criteria for MSBP identified in a classic study is that the child’s symptoms abate when separated from the perpetrator. This is taken to be a sign that the caregiver induced or fabricated the symptoms. Yet, when the classic article using this definition is examined, one finds that the statistics she provides not only don’t support her point but actually lead to the opposite conclusion. Indeed, her evidence points to most cases of worsening of symptoms happening in the hospital. Of course, one could argue that these symptoms were induced by the caregiver in that context, but she does not so argue. In addition, if one thinks about this point for a moment, one would normally expect the child’s symptoms to abate when give over to the medical professionals. Perhaps as a result of the flimsiness of this criterion, later papers and definitions of MSBP don’t include it as a feature of MSBP.

I argue in the paper that the result of this kind of thinking and action has led to dramatically bad consequences for parents and their children, children who may have medical conditions that are difficult to diagnose and treat. If the mother, for example, denies that she has induced the physical ailment in her child, the state can say, “Ah, a denial is a sure sign that the mother is guilty of being an MSBP/FDBP mother. Thus, we recommend the child be taken away.” If, on the other hand, the mother “confesses” to having induced the illness in the child, the child will be taken away because a confession serves as direct evidence of the mother’s abuse of the child. Thus, mothers accused of being an “MSBP/FDBP mom” are in a Catch-22 type-of-situation. Shadowy allegations often are enough to take a child away from parents; and denials of abuse protect them no more than a confession.

With this the problem before us, I do two things in the paper: (1) describe the history of the diagnosis of MSBP/FDBP since its inception in 1977 and divide that history into four “sub-periods,” so that we can see the nature of the syndrome as it emerged in psychology and was developed in law; and (2) point out a number of vulnerabilities in the diagnosis that my historical discussion has uncovered. Four major difficulties with the diagnosis are: (a) its definition; (b) who is able to diagnose it; (c) who suffers from it (mother or child); and (d) what statistical evidence we have of the phenomenon. I argue that the cumulative effect of these problems is that that courts ought to stop accepting a diagnosis of MSBP/FDBP until they are satisfactorily cleared up. The remainder of this summary states my conclusions on (a)-(d).

First, with respect to definition, I show how the “classic” definition of MSBP in a 1987 article and the psychological definition of FDBP (the “successor” name for it), which appeared in the 1994 DSM-IV, differ in crucial ways. The 1987 article makes the mother’s intent and denial crucial to the definition of MSBP, while the 1994 definition focuses more on the induction of symptoms in the child than on caregiver intent. Indeed, in my article, I point to four ways in which the definitions aren’t consistent. On top of this is the fact that a new definition was introduced in 2000 as a significant professional group dealing with abused children created yet a third parallel syndrome—“Pediatric Condition Falsification.”

Second, the issue of who can diagnose MSBP/FDBP is a subtle one with wide-ranging ramifications. If it is only diagnosable by a mental health professional, then it will be done after suspicions are raised and tests are administered to the one suspected of MSBP. If, however, it is more of a “hypothesis” than a “conclusion,” social workers, educators, police, or anyone who might come in contact with a child whom they “suspect” might be a victim of MSBP can “diagnose.” But this difference of opinion on who can diagnose goes right to the heart of what MSBP is—a “syndrome” or a “suspicion.” The literature, as well as court cases, are confused on this point. A subsidiary point is when such a diagnosis may be made—at the beginning of the relationship between caregiver and professional or only after a process of examination has concluded?

Third, there is the issue of who suffers from MSBP. Most literature today says that it is the caregiver who does, but the classic 1987 article talks about the children being afflicted by MSBP.

Finally, there is disagreement on the statistics for MSBP. How prevalent is it? The early studies talked about its comparative rarity. Indeed, the 1987 study only found 117 cases of it in the previous 22 years of literature review—about 5.3 cases per year. But by the mid-1990s, some articles were claiming that the condition was not rare at all, and that courts, prosecutors, social workers and doctors must be on their guard to “smoke out” some of the hidden ways that this “syndrome” goes unnoticed. Along with great differences on the number of cases of MSBP is the related issue of the treatment of children if they are released back to their “Munchausen home.” With almost no foundation, some of the literature claimed that there was about a 20% chance that a child who goes home to Munchausen caregivers is going home to die. But when the 1987 study suggested a much smaller number, even the inventor of the “syndrome,” Dr. Roy Meadow, wrote to the publication saying that the 1987 numbers were highly inflated. Thus, we have a major statistical problem on our hands that needs to be resolved before such a diagnosis should be allowed in court.

Finally, it should be noted, the “godfather” of the diagnosis, Dr. Roy Meadow, has now been discredited in his native England for giving expert witness testimony in more than one case where he opined on statistical matters where he was later shown to have no competence, and his opinion contributed to separate jury’s finding that two mothers had murdered their children.

Therefore, until these four problems are addressed by those who still support a diagnosis of MSBP/FDBP, I recommend that it should be interred alongside its eponymous ancestor, Karl Friedrich Hieronymus, Freiherr von Munchausen.

6:- Smacking that does not leave a mark is no offence.Small bruises and scratches occur during the rough and tumble of ordinary life for nearly all children. Broken bones,cigarette burns, a child’s complaints (not anonymous tipoffs!) of sexual abuse, should all be looked at by independent medical experts. It is however very rare that parents who abuse or allow this sort of abuse ever dare to come to court to beg for the return of children they probably detest!

7:- SS have a legal obligation to place children with relatives where possible if they have removed them from parents.

The Children Act 1989 clearly states in the following extract:-

(4)  A person falls within this subsection if he is—
(a)  a parent of the child;
(b)  a person who is not a parent of the child but who has parental responsibility for him; or
(c)  where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made.

(5)  Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the Secretary of State.

(6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—
(a)  a person falling within subsection (4); or
(b)  a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare.

(7)  Where a local authority provide accommodation for a child whom they are looking after, they shall, subject to the provisions of this Part and so far as is reasonably practicable and consistent with his welfare, secure that—

(a)  the accommodation is near his home; and
(b)  where the authority are also providing accommodation for a sibling of his, they are accommodated together.

Unfortunately, judges and lawyers ignore the above laws time and time again! Although kinship placements are supposed to be the preferred option in this country, the UK has a significantly lower proportion of children ‘in care’ or ‘looked after’ in kinship care than in other countries, with approximately 12 per cent, as compared to New Zealand’s 75 per cent, and Belgium’s 33 per cent

8:- Despite what your lawyers may say, you are now permitted to consult friends and individual helpers to discuss your case (Children Act 2004, section 62) and even to “go public” once all court proceedings are finally concluded, (Clayton v Clayton).

Talking of lawyers and especially “legal aid lawyers”, the vast majority of these highly paid and highly useless paarasites are widely known as “professional losers “. They simply advise you NOT to fight the social services and to “go along” with everything the social workers tell you! For this easy and entirely useless legal advice they charge enormous fees and go home laughing, ready to fleece their next victim !

To sack your solicitor and your barrister just download form N434!

Samantha had 4 children removed after she ejected a rude and nosey social worker from her home (they said she must have a personality disorder!) She and her mother Philomena lost 3 cases in a row and 3 children to adoption when “represented” so when they threatened to take her new baby as soon as it was born, she contacted me and I advised her to represent herself.

She did this successfully retaining her new baby and recovering her eldest child even after the SS appealed against her first win but Samantha still beat them again!

She or her mother Philomena will advise you and tell you how they did it on 07947 468 340.

Do not be bluffed by social workers or even your own useless solicitors! If they tell you, you are not allowed by law to show your documents to anybody else tell them they are years out of date! Section 62, (para 251 explanatory notes), of the Children Act 2004 allows you to show your documents and discuss your case in detail including names with as many individuals as you like!

You are however still forbidden to reveal to the press, the public or sections of the public any information that might help identify the children concerned. Tell family, friends, advisers and any other individuals anything you like no matter what bossy social workers and expensive lawyers might tell you!!

Jack Straw’s new rules simply confirm this position.

You can access the actual texts of the new rules as passed by parliament as follows;-
Statutory Instruments

See Ministry of Justice Family Procedure Adoption Rules

See also Section 62: Publication of material relating to legal proceedings

The Children Act 2004 para 251.     Section 62(1) amends section 97 of the Children Act 1989 to make clear that the publication of material from family proceedings which is intended, or likely, to identify any child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public.

This section will make the effect of section 97 less prohibitive by allowing disclosure of such information in certain circumstances. In effect, this means that passing on information identifying, or likely to identify, a child (his school or his address) as being involved in court proceedings to an individual or a number of individuals would not generally be a criminal offence.

News Release
27 June 2006
18/06Clayton -v- Clayton: Summary of Judgment for Media

The Court of Appeal is today handing down its decision in the case of Clayton v Clayton. This may well have widespread repercussions for parents and children, in relation to the identification of children as having been the subject of court proceedings once those proceedings are over.  Essentially, the decision concerns the balance between children’s right to privacy and their parents’ right to freedom of expression under the European Convention on Human Rights.

The Court of Appeal has decided that the prohibition from identifying children which section 97 of the Children Act 1989 provides only applies whilst the proceedings relating to the child in question are in progress. Once the proceedings have concluded, the protection given by the Act comes to an end, the entitlement to anonymity.

The decision above means that once the court proceedings are over you are FREE to discuss your case with the press and anyone else you like even if it means that as a result you and/or your children may be identified as a consequence.

http://www.opsi.gov.uk/ACTS/en2004/04en31-d.htm

9:- If your newborn baby is taken, the SS have to have an emergency protection order or police protection order and if they cannot show you the document, hang on to your baby by force as they are acting illegally. You have the legal right to continue breast feeding the natural way (not expressing!) This of course gives you the right to much more contact with the baby than otherwise.

10:- If SS take your baby and you have never caused it harm and neither you nor your partner have a criminal record you will have a good chance of winning (P, C and S versus UK) by appealing to the court of human rights in Strasbourg (they have an office in the UK) once ALL proceedings (including appeals) in UK courts are concluded. Make sure of this last point or your application will be refused.

Strasbourg European Court of Human Rights

Please note that if the SS take your baby or very young child for no very good reason other than for “risk of emotional abuse” or some similar vague notion then they are probably just trying to meet their adoption targets and your human rights have certainly been infringed.

The decision by the  European court of human rights  (P, C and S versus United Kingdom) was that the action of the UK in taking a baby at birth from a mother that had never been accused of harming it was “draconian” and merited a large fine and damages to the mother.

If the SS take your newborn baby QUOTE THIS CASE IN COURT as a reason for its return to your care. Make it clear that you will appeal on a point of law and if that fails, go to the European Court of Human Rights, if the judge ignores this case and rules against you.

CASE OF P., C. AND S. v. THE UNITED KINGDOM – (see paragraphs 133, 137 and 138)

Quoting Para 133.  The Court concludes that the draconian step of removing S. from her mother shortly after birth was not supported by relevant and sufficient reasons and that it cannot be regarded as having been necessary in a democratic society for the purpose of safeguarding S. There has therefore been, in that respect, a breach of the applicant parents’ rights under Article 8 of the Convention.

Mothers have the right to breastfeed!

If you are menaced by SS threatening to steal your baby start breastfeeding IMMEDIATELY!! The SS must allow you enough contact to continue, and this may give you enough breathing time to defeat their adoption plans!

Precedent

*In the matter of unborn baby M; R (on the application of X and another) v Gloucestershire County Council.

http://www.bailii.org/ew/cases/EWHC/Admin/2003/850.html

Citation: BLD 160403280; [2003] EWHC 850 (Admin).
Hearing Date: 15 April 2003
Court: Administrative Court.
Judge: Munby J.

Abstract.

“Per curiam. If the state, in the guise of a local authority, seeks to remove a baby from his parents at a time when its case against the parents has not yet even been established, then the very least the state can do is to make generous arrangements for contact, those arrangements being driven by the needs of the family and not stunted by lack of resources. Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. Local authorities also had to be sensitive to the wishes of a mother who wants to breast-feed, and should make suitable arrangements to enable her to do so, and not merely to bottle-feed expressed breast milk. Nothing less would meet the imperative demands of the European Convention on Human Rights.”…

Published Date 16/04/2003

This case establishes the right of the mother to breastfeed, and is often ignored both by judges and the SS BECAUSE THE PARENTS ARE NOT AWARE OF THEIR RIGHTS UNDER THIS IMPORTANT CASE.

11:- According to the UN convention on children’s rights children old enough to understand the nature of a court have the right to take part and be heard in proceedings that concern them.
Article 12

  • Every child and young person has the right to express his or her views freely – about everything that affects him or her.
  • The child’s or young person’s views must be given ‘due weight’ depending on his or her age and maturity.
  • The child or young person has the right to be heard in all decision-making processes, including in court hearings. The child or young person can speak for him or herself, or someone else can speak for him or her.

If you can get your children into court to say they are happy with you and that they want to stay with you, plus your family doctor to say you have always been a good parent you stand a very good chance of winning! 

Fight in court to have your children present in person to say that you have always treated them well and that they want to return home and call your own family doctor, who knows your family much better than the weird psychiatrists so often produced by the social services. If the allegations made against you by social services are false insist even against ferocious opposition that you cannot have a fair hearing unless your family doctor and any of your children said to have criticised you are present in person. Please understand this above all.

YOUR CHILDREN IN COURT (IF THEY ARE OLD ENOUGH) PLUS YOUR FAMILY DOCTOR OR BETTER STILL AN EXPERT SELECTED BY YOU, GIVES YOU AN EXCELLENT CHANCE TO WIN!!… WITHOUT THEM YOU WILL ALMOST CERTAINLY LOSE!

The social workers,the judge and even your own lawyers will usually resist the idea of children appearing in court (suffering emotional harm!) as they prefer to rely on videos where children have been rehearsed and pressurized into saying what they have been told to say.

Your answer must be the following 3 points:-

I wish my child to come to court to testify.

A:- Children suffer far more from a perhaps permanent separation from their families than from a few hours in court or from any publicity if the “neighbours” find out ! 

B:- Children who WANT to come to court to tell the truth will suffer far more from being forcibly prevented from doing this than from being allowed to do so.

C:- There cannot be a fair hearing if my principal witnesses are prevented from giving evidence, and therefore I shall appeal if this happens on the grounds that my human rights have been infringed.

Convention on the Rights of the Child

Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989

entry into force 2 September 1990, in accordance with article 49

Article 12 of the United Nations convention on children’s rights gives a parent the legal right to call their children in judicial proceedings  as quoted below. 

Article 12 (child’s right to participate in decision making)

1. Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law

Any claim that this clause is satisfied by the appointment of a “guardian” or “independent solicitor” to represent the children’s views by stating in court an opinion diametrically opposed to that of the children concerned should be exposed as the sham that it is. Simply a device to keep the children’s true opinions and desires from reaching the court and as such a clear breach of the spirit of the convention.

—-

Three-year-old becomes youngest trial witness

Jonathan Brown, The Independent, Saturday 12 November 2011

A three-year-old boy was given a packet of crisps by a judge after making legal history by becoming what is believed to be the youngest child to give evidence in a British court case.

The toddler, who cannot be named for legal reasons, was led gently through a series of questions about an alleged attack during the informal hearing. Answering via video link from an adjoining room at Bradford Crown Court, the boy told Judge Jonathan Rose that he liked Transformers and that his favourite flavour of crisps was salt and vinegar.

The court heard that the boy from Huddersfield, West Yorkshire, then aged two, suffered life-threatening injuries and had to undergo surgery on his bowel after Daniel Joyce, 29, allegedly stamped on his stomach.

The judge and both barristers removed their wigs and gowns in accordance with Ministry of Justice guidelines on questioning young witnesses.

Michelle Colborne, for the defence, handed the boy cardboard cut-outs representing people and locations involved in the case as she reconstructed events.

The child was accompanied by a court usher and a female intermediary and was allowed to draw during the short cross-examination. He had been warned that he had to tell the truth before giving his evidence.

At one point the judge asked him: “If Michelle asks you just three questions should we stop for a bag of salt and vinegar crisps?” He replied: “Yeah.” The boy was also questioned by Caroline Wigin, for the prosecution. She asked: “How did Danny hurt your tummy?”

“He stamped on me,” the boy replied. “Did he touch you anywhere else apart from your tummy?” asked Ms Wigin. “Yeah,” said the boy.

“Where was that?” she asked. “He put his hand on my mouth,” said the child who is also alleged to have suffered injuries to the face and ear. “Do you know which room you were in?” asked Ms Wigin. “Yeah … in my bedroom,” said the boy. The prosecutor said the boy had appeared “his normal chatty self” according to a witness the night before the alleged attack. Mr Joyce raised the alarm the following day when the boy appeared pale and floppy.

A few weeks later the boy was asked what had happened and he said “Danny” had stamped on his stomach, it was claimed. Mr Joyce denies GBH with intent and an alternative allegation of causing grievous bodily harm. The trial continues.

—————————–

Girl, 6, makes legal history as judge in child abduction case allows her to choose whether to live with her mummy or daddy

By Andy Dolan – Daily Mail 15th April 2010

In a landmark case, a six-year-old girl caught in a tug-of-love battle has been allowed to choose which parent she will live with.

She became the youngest child to have her wishes influence the courts in an international child abduction case.

A judge heard how she had been left with a ‘visceral’ fear of being sent back to live with her father in Ireland.

The girl and her two brothers, aged three and eight, were brought to the UK by their English-born mother last summer.

They are now free to remain with her in this country after the Appeal Court yesterday upheld an earlier ruling by a family court judge to refuse the father’s application for them to be sent back to Ireland.

Giving her decision last month, Mrs Justice Black said the six-year-old and her older brother had ‘attained an age and level of maturity’ to have their wishes taken into account.

She said it would be ‘intolerable’ for their younger brother to be separated from them.

The court heard the three siblings had spent all their lives in Ireland, their father’s homeland, before their mother ‘unlawfully removed’ them last summer.

Their father’s counsel, Edward Devereux, said it was a ‘ clandestine and well-planned’ operation carried out while the father was at work.

He asked to have the children ‘summarily returned’ to Ireland under the Hague Convention, the international treaty which tackles-child abduction in family cases.

But Mrs Justice Black refused to order their return after hearing the strength of the two older children’s objections to the move.

A social worker who interviewed the pair said that, when she told them they might be sent back to Ireland, the boy ‘became very fidgety’ and his little sister started to cry.

The youngsters said that, if they had to return to Ireland, they wanted to live in a secret location as far away from their father as possible, the court heard.

In her ruling, Mrs Justice Black said the children’s objections were rooted ‘in their own experiences of family life and their fear of their father’.

She added that there was nothing to suggest that they had been influenced or put under pressure by their mother.

At the Appeal Court, Mr Devereux argued that the judge’s ruling undermined the whole basis of the Hague Convention, which requires that the future of children in such cases should be decided by the courts of the country from which they have been unlawfully abducted.

Describing the case as ‘unique’, the barrister said that six ‘is the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views’.

Mrs Justice Black’s ‘radical’ ruling, he said, would have ‘a far-reaching impact’ on child abduction cases.

However, after a two-hour hearing, Lord Justice Wilson and Lord Justice Sedley refused to grant the father permission to appeal, with the result that the children will now get their wish and stay with their mother in England.

Recognising the potentially widespread importance of the case, Lord Justice Sedley said the court would give the reasons for its decision at a later date.

Last month’s Court of Appeal hearing attracted much attention in the national press because at first instance Black J had taken account of the views of two of the three children involved. The younger of them was five years old at the time of her interview by a Cafcass officer.

Edward Devereux, representing the father, told the Court of Appeal that Mrs Justice Black’s decision to consult the girl had been “radical” and “unique”. He said that five was “the youngest age in the reported jurisprudence at which a child has been found to have attained an age and degree of maturity at which it is appropriate to take account of her views.”

The father’s application for permission to appeal was refused.

Delivering the main judgment of the Court, Wilson LJ cited the observation of Baroness Hale in In Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, that

“children should be heard far more frequently in Hague Convention cases than has been the practice hitherto”.  He shared the concern that “the lowering of the age at which a child’s objections may be taken into account might gradually erode the high level of achievement of the Convention’s objective, namely – in the vast majority of cases – to secure a swift restoration of children to the states from which they have been abducted.” However, he added: “A considerable safeguard against such erosion is to be found in the well-recognised expectation that in the discretionary exercise the objections of an older child will deserve greater weight than those of a younger child.”

—-

In Mabon v. Mabon [2005] 2 FLR 1011, the Court of Appeal considered Rule 9.2A and the older line of authorities in the light of Article 12 of the United Nations Convention on the Rights of the Child 1989, and Article 8 of the ECHR. The court acknowledged the greater appreciation and weight which must now be attached to the child’s autonomy and consequential right to participate fully in the decision-making process that fundamentally affects his life. It held that

in the case of articulate teenagers…. the right to freedom of expression and participation outweighed the paternalistic judgment of welfare.”[paragraph 28].

However, if direct participation would lead to a risk of harm that the child was incapable of comprehending, then a judge could find that sufficient understanding had not been demonstrated. Judges must equally be alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings [para.29].

UK LIFTS RESERVATIONS ON THE UN CONVENTION ON THE RIGHTS OF THE CHILD (UNCRC)

22 September 2008

Jacqui Smith, Jack Straw and Ed Balls today announced that the UK Government is removing two reservations, relating to immigration and children in custody with adults, on the UN Convention on the Rights of the Child (UNCRC).

The Government will now also ratify the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography by the end of the year.

The news comes ahead of the UK’s appearance at the UN this week (23/24 September) where it will set out its commitment to the Convention and update it on progress on children’s wellbeing.

So if lawyers say the UK law does not incorporate the convention, the above proves them wrong !

W (Children) [2010] UKSC 12

Appeal to the Supreme Court by father in care proceedings relating to five children. At issue were the principles guiding the exercise of the court’s discretion in deciding whether to order a child to attend to give evidence in family proceedings.

Appeal allowed.

In this judgment the Supreme Court reformulates the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. In so doing it removes the presumption or starting point of the current test, which is rarely if ever rebutted, that it is only in the exceptional case that a child should be so called.

At issue in this case is the care of five children.

The mother and father at the relevant time were in a relationship and the father is the biological parent of the four youngest children.

A sixth child is due to be born to the couple this month. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her.

All the children were taken into foster care and the four younger children are having supervised contact with both parents.

The father has since been charged with 13 criminal offences and is currently on bail awaiting trial.

In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link.

The judge however asked for further argument on whether she should do so.

The local authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness.

In November 2009 the judge decided to refuse the father’s application for her to be called.

Instead, she would rely on the other evidence, including a video-recorded interview with the child.

The Court of Appeal dismissed the father’s appeal (see [2010] EWCA Civ 57).

They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council.

The father appealed to the Supreme Court.

The Supreme Court unanimously allowed the appeal and remitted the question of whether the child should give evidence, and if so in what way, to Her Honour Judge Marshall to be determined at the fact finding hearing in light of the principles set down in this judgment.

REASONS FOR THE JUDGMENT

  • The court agreed with counsel for the local authority that there were very real risks to the welfare of children which the court must take into account in any reformulation of the approach [17 to 21].

          However the current law, which erects a presumption against a child giving live evidence in family proceedings,cannot be reconciled with the approach of the European 
          Court of  Human Rights, which aims to strike a fair balance between competing Convention rights.
In care proceedings there must be a balance struck between the article 6 requirement of fairness, which normally entails the opportunity to challenge evidence, and the article 8
right to respect for private and family life of all the people directly and indirectly involved.
          No one right should have precedence over the other.
Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point [22, 23].

  • Accordingly, when considering whether a particular child should be called as a witness in family proceedings, the court must weigh two considerations:

          the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child [24].
The court sets out a number of factors that a family court should consider when conducting this balancing exercise.
An unwilling child should rarely, if ever, be obliged to give evidence.
The risk of harm to the child if he or she is called to give evidence remains an ever-present factor to which the court must give great weight.
The risk, and therefore the weight, will vary from case to case, but it must always be taken into account [25, 26].
At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the child’s evidence, and at the same time decrease the risk of harm to the
child  [27, 28].

  • The essential test is whether justice can be done to all the parties without further questioning of the child.

          The relevant factors are simply an amplification of the existing approach.
What the court has done however is remove the presumption or starting point; that a child is rarely called to give evidence will now be a consequence of conducting a balancing exercise
and not the threshold test  [30].

  • In this case the trial judge had approached her decision from that starting point.

          The Supreme Court could not be confident that the judge would have reached the same result had she approached the issue without this starting point, although she might well have
done so.
Nor did the court consider it appropriate to exercise its own discretion, given that all of the relevant material was not before the court.
The question is remitted to the trial judge to decide at the fact finding hearing scheduled for next week.
Taking account of the detriment which delay would undoubtedly cause to all of the children concerned, including the unborn baby, there should be no question of adjourning that hearing   ______[31 to 35]._

IMPORTANT!! If after quoting this decision by the Supreme Court you are still refused permission to call your children to testify in court, IMMEDIATELY ask the judge for permission to appeal on the grounds that the lower court is ignoring the Supreme Court decision and disregarding Article 10 of the Human rights act that allows all a fair hearing with the right to call witnesses!!
_______

[2010] UKSC 12            On appeal from: 2010 EWCA Civ 57

JUDGMENT

W (Children)

before:
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Kerr

JUDGMENT GIVEN ON     3 March 2010
Heard on        1st and 2nd March 2010

Charles Geekie QC
Michael Liebrecht
(Instructed by Andrew L Webb)
(Appellant)

Lucinda Davis QC
Sarah Earley
(Instructed by The County Council Legal Services)
(Respondent)

Kate Branigan QC
Maggie Jones
(Instructed by Larcombes LLP)
(Respondent)

LADY HALE giving the judgment of the court:
1. At issue in this case are the principles which should guide the exercise of the court’s discretion in deciding whether to order a child to attend to give evidence in family proceedings.
The current approach was stated by Smith LJ in LM v Medway CouncilRM and YM [2007] EWCA Civ 9[2007] 1 FLR 1698, at para 44:

“The correct starting point . . . is that it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken.

There will be some cases in which it will be right to make an order.

In my view they will be rare.”

She went on to explain the factors which should guide the judge in considering whether to make the order, at para45:

“. . . the judge will have to balance the need for the evidence in the circumstances of the case against what he assesses to be the potential for harm to the child.

In assessing the need for oral evidence . . . the judge should, in my view, take account of the importance of the evidence to the process of his decision about the child’s future.

It may be that the child’s future cannot satisfactorily be determined without that evidence.

In assessing the risk of harm or oppression, the judge should take heed of current research into the effect on children of giving evidence and should not rely only upon his impression of the child, although that will of course be relevant.”

2. That approach was based upon the earlier authority of Butler-Sloss LJ in R v B County Council, ex parte P[1991] 1 WLR 221 and Wilson J in Re P (Witness Summons) [1997] 2 FLR 447.

It was endorsed by Wilson LJ in the Medway case and by Wall and Thorpe LJJ in SW v Portsmouth City Council;Re W (children: concurrent care and criminal proceedings[2009] EWCA 644[2009] 3 FCR 1.

And it was followed by Wall and Wilson LJJ in their joint judgment in the present case: [2010] EWCA Civ 57.

Each had previously stated that in all their years of experience in the Family Division of the High Court he had never heard oral evidence from a child in care proceedings.

That is also my own experience.

3. The complaint, very moderately advanced by Mr Geekie QC, is that a “starting point” of undesirability, placing the burden upon the person wishing to cross-examine a child to show some “particular justification” for doing so, gives insufficient weight to the Convention rights of all concerned.

All the parties in care proceedings are entitled to a fair hearing in the determination of their civil rights and obligations – the parents who stand to lose their children if allegations of abuse are made out, the children who stand to lose their parents if allegations of abuse are made out, but also stand to suffer abuse or further abuse if they are left at home because those allegations cannot be proved.

And it is not only their article 6 rights which are in play.

The civil rights in issue are also Convention rights in themselves – the right to respect for the family lives of the parents and their children but also the right to respect for the private lives of the children, which include their rights to be protected from attacks upon their physical and psychological integrity: X and Y v The Netherlands (1985) 8 EHRR 235. Even a “stranger” child, whose future is not in issue in the proceedings but whose statements are relevant, has privacy interests which deserve respect.

4. Hence, argues Mr Geekie, there should be no starting point or presumption that such cases will be rare.

Instead, the court should adopt the approach explained by Lord Steyn in In re S (Identification: Restrictions onPublication) [2004] UKHL 47, [2005] 1 AC 593, at para 17, when balancing of the right to respect for private and family life in article 8 and the right to freedom of expression in article 10:

“First, neither article has as such precedence over the other.

Secondly, where the values of the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.

Thirdly, the justifications for interfering with or restricting each right must be taken into account.

Finally, the proportionality test must be applied to each.”

Mr Geekie understands that article 6 is not a qualified right in the same way that article 8 is a qualified right, but he accepts that what is entailed in a fair hearing in Childen Act proceedings will have to take account of the article 8rights of all concerned.

All he asks for is “an intense focus” upon their comparative importance rather than an assumption that the one will almost always trump the other.

The background
5. The starting point of English criminal and civil procedure has historically been that facts must be proved by oral evidence given on oath before the court which can then be tested by cross-examination.

Hearsay evidence was mostly inadmissible.

But wardship proceedings in the High Court were an exception.

The High Court was exercising a protective parental jurisdiction over its wards in which their welfare and not the rights of the parties was the paramount consideration:

see In Re K (Infants) [1965] AC 201Re W (Minors) (Wardship: Evidence) [1990] 1 FLR 203.

It was assumed that hearsay was also admissible in proceedings about the future of children in other courts.

But the Court of Appeal held otherwise in H v H (Minor) (Child AbuseEvidence) [1990] Fam 86 in relation to matrimonial and guardianship proceedings and Otton J held otherwise in Bradford City Metropolitan Council v K(Minors) [1990] Fam 140 in relation to care proceedings in juvenile courts.

6. The result was an addition to the Children Bill then going through Parliament, which became section 96 of theChildren Act 1989.

Subsections (1) and (2) allow a child to give unsworn evidence in any civil proceedings, even if he does not understand the nature of an oath, provided that he understands that it is his duty to tell the truth and has sufficient understanding to justify his evidence being heard.

Subsections (3) to (5) provide for the Lord Chancellor (with the concurrence of the Lord Chief Justice) to make provision by order for the admissibility in civil proceedings of hearsay evidence relating to the upbringing, maintenance or welfare of a child.

The Children (Admissibility of Hearsay Evidence) Order 1993, SI 1993/621, simply provides that such evidence shall be admissible “notwithstanding any rule of law relating to hearsay”.

It does not make the more detailed provision allowed for by section 96(5).

7. Meanwhile, there had also been developments in the criminal courts, not in relation to the admissibility of hearsay, but in relation to the way in which a child’s evidence might be given.

In 1989, the Report of the Advisory Group on Video Evidence (the Pigot Report) recommended that both the evidence-in-chief and cross-examination of child witnesses should be video-recorded and the recording stand as their evidence at the trial.

The Group received evidence that “most children are disturbed to a greater or lesser extent by giving evidence in court” which was a “harmful, oppressive and often traumatic experience” (para 2.10).

They attached “particular importance to the psychiatric opinion we received which suggests that not only do abused children who testify in court exhibit more signs of disturbed behaviour than those who do not, but that the effects of a court appearance are most severe and prolonged in those who have suffered the worst abuse and those without family support” (para 2.12).

8. The Criminal Justice Act 1991 implemented the Pigot Report’s proposals for video-recorded evidence-in-chief but not for cross-examination.

A Memorandum of Good Practice on Video Recorded Interviews with Child Witnesses for Criminal Proceedings, drawing on expert psychological advice, was published in 1992; replaced in 2002 by Achieving Best Evidence in Criminal ProceedingsGuidance for Vulnerable or Intimidated Witnesses, including Children; and again in 2007 by Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures.

As its name implies, the aim is to enable witnesses who would not otherwise be able to give of their best in a criminal trial to do so.

9. The Youth Justice and Criminal Evidence Act 1999 now provides for a variety of special measures to assist children (and other vulnerable witnesses) to give evidence in criminal cases. These include screens, live television links, using video-recordings as evidence-in-chief, providing aids to communication and examining the witness through an approved intermediary.

(There is also provision for cross-examination and re-examination to be video-recorded but there are no plans to bring this into force.)

The 1999 Act also allows witnesses of any age to give unsworn evidence in criminal proceedings unless it appears to the court that they are unable to understand the questions put or to give intelligible answers.

On top of these measures designed to improve the ways in which the evidence of these witnesses is put before the court, the Criminal Justice Act 2003 now allows for hearsay evidence to be given in criminal trials in a much wider set of circumstances than used to be the case.

10. Family proceedings are typically very different from criminal proceedings.

There is often a mass of documentary evidence, much of it hearsay, from which a picture can be built up or inferences drawn.

A child may reveal what has happened to her in many different ways.

The dangers of over-enthusiasm and leaping to conclusions were well illustrated in the Report of the Inquiry into Child Abuse in Cleveland 1987 (1988, Cm 412).

One consequence has been that video-recordings of “Achieving Best Evidence” (ABE) interviews are routinely used in care proceedings if they are available.

The near-contemporaneous account, given in response to open-ended questioning, in relaxed and comfortable surroundings, is considered inherently more likely to be reliable than an account elicited by formal questioning in the stressful surroundings of a court room months if not years after the event.

Unlike criminal proceedings, however, it is “rare” for the child to be called for cross-examination in family proceedings.

The facts of this case
11. These are care proceedings relating to five children:

a 14 year old girl whom we shall call “Charlotte” and her four half-siblings, aged 8, 7, 3 and 18 months.

The mother is expecting another child later this month.

The appellant is father to the younger children but not to Charlotte and her 17 year old sister “Nancy”.

The mother and father are not married to one another, but the appellant is de facto the step-father of both Charlotte and Nancy and has been referred to as the father throughout the case.

12. These proceedings began in June 2009 because Charlotte made allegations at school that the father had seriously sexually abused her, specifically on the previous day but also on a number of occasions before that.

This was not the first time that she had made allegations against him to friends and other adults; the police have disclosed statements and interviews from these people.

There were two previous investigations which came to nothing: in 2006 when she had failed to confirm what she was said to have told others and in 2008 when she retracted a serious allegation made in a text message to a friend.

This time, however, she was immediately “ABE” interviewed and medically examined and there is also some relevant forensic evidence.

The father has been charged with 13 criminal offences against her and is currently on bail awaiting trial.

13. Charlotte has been in foster care since making her allegations.

Her four younger half-siblings were at first taken into foster care, then returned to their mother following an order excluding the father from the home, then taken back into foster care after the mother allowed them unauthorised contact with the father.

They are having supervised contact with both their parents.

Charlotte is having contact with the younger children, but the local authority do not think that contact with her mother is beneficial for her.

14. At a case management hearing in September 2009, the parties had agreed that there should be a fact finding hearing in relation to the allegations of sexual abuse made by Charlotte, at which she would give live evidence over a video link.

The judge, however, asked for further argument on the matter.

The local authority, having by then had time to consider the material received from the police, decided that they no longer wished to call Charlotte as a witness but to rely upon her ABE interview. The father however applied for her to be called.

On 30 November 2009 the judge refused this application.

The fact-finding hearing is currently listed to begin next Monday, 8 March 2010.

15. On 9 February 2010, the Court of Appeal gave their reasons for dismissing the father’s appeal.

In their joint judgment, Wall and Wilson LJJ adhered to the practice as laid down in the previous decisions of that court.

They did, however, point out that the evidence upon which the Pigot Report had relied related to the criminal law as it stood in 1989.

They wondered whether the time had now come for “a wider consideration of the issue in relation to family proceedings than is possible in the light of the doctrine of precedent” (para 27).

They therefore proposed to send the judgments to the President of the Family Division so that he could consider whether to take the issue further, perhaps by referring it to the Family Justice Council for a multi-disciplinary committee to look into it (para 30).

Rimer LJ drew “back from the brink of dissent”: he concluded that the judge’s decision was “for all practical purposes, imposed on her by a mixture of jurisprudence and practice, being however a mixture whose underlying soundness I would respectfully question” (para 69).

He endorsed the proposal for reconsideration and we have since been told that the President of the Family Divisionhas referred the question to a multi-disciplinary committee chaired by Thorpe LJ.

16. Wall and Wilson LJJ appeared to accept (at para 30) the observation of Wall LJ in Re W, above, at para 57, that this was not a matter for the judiciary to resolve.

While this must be true of the criminal justice process, with the greatest of respect to them, it cannot be true of the family justice process.

There is no problem with the admissibility of hearsay evidence.

The problem is whether the current practice of rarely calling children to give live evidence even when they could be called can be reconciled with the Convention rights or even with the elementary principles of justice.

That is a question of law for this Court, even if it is one on which we should very much prefer to have the up to date advice of an expert multidisciplinary committee.

Preserving the status quo
17. There are a great many reasons for not departing from the present practice.

The principal reason, urged upon us by Ms Lucinda Davis for the local authority, is that the whole purpose of care proceedings is to protect the interests of children.

It does not make sense to set up a process to protect them and then for the process itself to traumatise them by making them give evidence.

This does, of course, depend upon the view that giving evidence is indeed harmful to children.

But, she argues, the evidence we have is that which was before the Pigot committee in 1989 and it would be wrong to change the practice until there is fresh evidence which casts doubt upon that. As to whether such evidence might be forthcoming, we note the experience of Wall LJ, as related in Re W at para 55, which does not suggest that it would:

throughout his time in the Family Division, he attended numerous conferences at which every child and adolescent psychiatrist to whom he spoke, or whom he heard speak, condemned as abusive the process in criminal law whereby a child was required to attend court to be cross-examined, often many months and sometimes years after the event in order to have his or her credibility impugned over abuse allegations.

He had never been persuaded that it was impracticable to implement the Pigot proposals in full.

Recent research (Joyce Plotnikoff and Richard Woolfson, Measuring up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings, 2009, Nuffield Foundation and NSPCC) has shown that, although special measures have made the experience better for children, many still find it difficult and stressful.

18. There are other problems with changing the present practice.

It might well be possible to do far more in family proceedings to make the process of giving evidence less traumatic for children.

There is no reason in principle why the family courts should not adopt the Pigot proposals in full.

Care proceedings are said to be inquisitorial.

The parties are not permitted to “keep their powder dry” as they are for the full scale battle before the jury in criminal cases.

They have to disclose what their answers are to any allegations made.

They are compellable witnesses.

If the child is ABE interviewed and they wish to put questions to her, the facilities could in theory be made available for them to do this in a further video-recorded session soon afterwards.

19. But what if those facilities are not made available?

What if for some reason the ideal cannot happen?

Is the judge to say that, because the best trial cannot happen, the proceedings must be abandoned?

The children’s need for protection is just as strong and the children’s right to be given that protection is just as powerful.

Say, for example, in a case like this, an older child went missing or died after having made her allegations.

Is the evidence of those allegations to be ignored in deciding whether or not the younger children require to be protected against something similar happening to them in future?

It is one thing for the State to abandon the prospect of punishing a person for his misdeeds.

It is another for the State to abandon the children who may need its protection to their fate.

20. There is a further fear.

It is, of course, not unknown for children to make false allegations of abuse.

But it is also not unknown, indeed it is believed to be more common, for children to conceal or deny the abuse which is happening to them.

They may have been “groomed” to believe it normal and natural.

They may have been threatened with dire consequences if they tell the secret.

They may be perfectly capable of working out for themselves that making a complaint will lead to pain and distress for all concerned and probably to the break up of the whole family.

These are powerful deterrents to coming forward or persisting in complaints.

It is as much for this reason as for any other that the family justice system has sought to minimise the deterrent effect of its own processes.

Were requests for children to give evidence to become routine, the uncertainties which this would generate would add to the deterrent effect both in individual cases and in general.

21. These are all, it can be said, very real risks to the welfare of individual children, and to children as yet unknown, which this court must be careful to take into account in any reformulation of the present approach.

Conclusions in principle
22. However tempting it may be to leave the issue until it has received the expert scrutiny of a multi-disciplinary committee, we are satisfied that we cannot do so.

The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child.

That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights.

Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side.

But even in criminal proceedings account must be taken of the article 8 rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002.

Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.

23. The object of the proceedings is to achieve a fair trial in the determination of the rights of all the people involved.

Children are harmed if they are taken away from their families for no good reason.

Children are harmed if they are left in abusive families.

This means that the court must admit all the evidence which bears upon the relevant questions:

whether the threshold criteria justifying state intervention have been proved;

if they have, what action if any will be in the best interests of the child?

The court cannot ignore relevant evidence just because other evidence might have been better.

It will have to do the best it can on what it has.

24. When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations:

the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child.

A fair trial is a trial which is fair in the light of the issues which have to be decided.

Mr Geekie accepts that the welfare of the child is also a relevant consideration, albeit not the paramount consideration in this respect.

He is right to do so, because the object of the proceedings is to promote the welfare of this and other children.

The hearing cannot be fair to them unless their interests are given great weight.

25. In weighing the advantages that calling the child to give evidence may bring to the fair and accurate determination of the case, the court will have to look at several factors.

One will be the issues it has to decide in order properly to determine the case.

Sometimes it may be possible to decide the case without making findings on particular allegations.

Another will be the quality of the evidence it already has.

Sometimes there may be enough evidence to make the findings needed whether or not the child is cross-examined.

Sometimes there will be nothing useful to be gained from the child’s oral evidence.

The case is built upon a web of behaviour, drawings, stray remarks, injuries and the like, and not upon concrete allegations voiced by the child.

The quality of any ABE interview will also be an important factor, as will be the nature of any challenge which the party may wish to make.

The court is unlikely to be helped by generalised accusations of lying, or by a fishing expedition in which the child is taken slowly through the story yet again in the hope that something will turn up, or by a crossexamination which is designed to intimidate the child and pave the way for accusations of inconsistency in a future criminal trial.

On the other hand, focussed questions which put forward a different explanation for certain events may help the court to do justice between the parties.

Also relevant will be the age and maturity of the child and the length of time since the events in question, for these will have a bearing on whether an account now can be as reliable as a near-contemporaneous account, especially if given in a well-conducted ABE interview.

26. The age and maturity of the child, along with the length of time since the events in question, will also be relevant to the second part of the inquiry, which is the risk of harm to the child.

Further specific factors may be the support which the child has from family or other sources, or the lack of it, the child’s own wishes and feelings about giving evidence, and the views of the child’s guardian and, where appropriate, those with parental responsibility.

We endorse the view that an unwilling child should rarely, if ever, be obliged to give evidence.

The risk of further delay to the proceedings is also a factor:

there is a general principle that delay in determining any question about a child’s upbringing is likely to prejudice his welfare:

see Children Act 1989, s 1(2).

There may also be specific risks of harm to this particular child.

Where there are parallel criminal proceedings, the likelihood of the child having to give evidence twice may increase the risk of harm.

The parent may be seeking to put his child through this ordeal in order to strengthen his hand in the criminal proceedings rather than to enable the family court to get at the truth.

On the other hand, as the family court has to give less weight to the evidence of a child because she has not been called, then that may be damaging too.

However, the court is entitled to have regard to the general evidence of the harm which giving evidence may do to children, as well as to any features which are particular to this child and this case. That risk of harm is an ever-present feature to which, on the present evidence, the court must give great weight.

The risk, and therefore the weight, may vary from case to case, but the court must always take it into account and does not need expert evidence in order to do so.

27. But on both sides of the equation, the court must factor in what steps can be taken to improve the quality of the child’s evidence and at the same time to decrease the risk of harm to the child. These two aims are not in opposition to one another.

The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court.

It does not assume that the most reliable account of any incident is one made from recollection months or years later in the stressful conditions of a courtroom.

Nor does it assume that an “Old Bailey style” cross examination is the best way of testing that evidence.

It may be the best way of casting doubt upon it in the eyes of a jury but that is another matter.

A family court would have to be astute both to protect the child from the harmful and destructive effects of questioning and also to evaluate the answers in the light of the child’s stage of development.

28. The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm.

There are things that the court can do but they are not things that it is used to doing at present.

It is not limited by the usual courtroom procedures or to applying the special measures by analogy.

The important thing is that the questions which challenge the child’s account are fairly put to the child so that she can answer them, not that counsel should be able to question her directly.

One possibility is an early video’d cross examination as proposed by Pigot.

Another is cross-examination via video link.

But another is putting the required questions to her through an intermediary.

This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

29. In principle, the approach in private family proceedings between parents should be the same as the approach in care proceedings.

However, there are specific risks to which the court must be alive.

Allegations of abuse are not being made by a neutral and expert local authority which has nothing to gain by making them, but by a parent who is seeking to gain an advantage in the battle against the other parent.

This does not mean that they are false but it does increase the risk of misinterpretation, exaggeration or downright fabrication.

On the other hand, the child will not routinely have the protection and support of a Cafcass guardian.

There are also many more litigants in person in private proceedings.

So if the court does reach the conclusion that justice cannot be done unless the child gives evidence, it will have to take very careful precautions to ensure that the child is not harmed by this.

30. It will be seen that these considerations are simply an amplification of those outlined by Smith LJ in the Medwaycase, at para 45, but without the starting point, at para 44.

The essential test is whether justice can be done to all the parties without further questioning of the child.

Our prediction is that, if the court is called upon to do it, the consequence of the balancing exercise will usually be that the additional benefits to the court’s task in calling the child do not outweigh the additional harm that it will do to the child.

A wise parent with his child’s interests truly at heart will understand that too.

But rarity should be a consequence of the exercise rather than a threshold test (as in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, para 20).

31. Finally, we would endorse the suggestion made by Miss Branigan QC for the child’s guardian, that the issue should be addressed at the case management conference in care proceedings or the earliest directions hearing in private law proceedings.

It should not be left to the party to raise.

This is not, however, an invitation to elaborate consideration of what will usually be a non-issue.

The outcome in this case
32. We commend the care with which the judge approached the issue in this case.

She considered the factors which we have outlined above most conscientiously.

But she approached them, as she was required to do on the authorities as they stood, from the starting point that it is only in exceptional circumstances that a child should be required to give evidence.

We cannot be confident that she would have reached the same conclusion had she approached them without that starting point, although she might well have done so.

33. We have considered whether it would be appropriate for us to exercise the discretion afresh but have concluded that we should not do so.

It would have the advantage of a speedy decision, one way or the other, in advance of the hearing which is due to start on Monday.

But we are not confident that we have all the relevant material before us.

In particular, although we have seen the transcripts, we have not seen the video of the first ABE interview.

Nor have we seen the video of a second interview, conducted after the Court of Appeal decision, in which Charlotte made allegations of physical abuse of all the children and domestic violence between the adults.

In the circumstances we see no alternative to remitting the question to be determined by the judge in the light of the judgment of this court.

34. However, there must be no question of adjourning the hearing fixed for next week.

That would undoubtedly be detrimental to all the children concerned.

It has already been adjourned twice.

Charlotte is understandably anxious that matters be resolved as soon as possible for the sake of the younger children.

They have been away from their home since June last year.

Even more important is the fate of the baby who is expected later this month.

The court’s findings will be crucial in deciding what steps, if any, are required to protect the baby.

This means that the parties will have to consider their positions and make written submissions to the judge in time for her to decide the question on Monday morning.

There is, of course, still time for the father to change his stance.

35For these reasons, the appeal will be allowed and the question of whether the child should give evidence at the hearing which is to begin on Monday 8 March is remitted to the judge for her to determine in the light of this judgment.

12:- Never sign any documents or undertakings, and never agree that the “thresholds” of abuse or neglect have been reached. If your solicitor “agreed the thresholds” on your behalf this amounted to an admission that you abused or neglected your child or put it at risk.

Make it clear on appeal that you did NOT agree to this at all but were prevented from saying so in court by your own solicitor or better still by the judge telling you to sit down! You are entitled to receive a judgement so that if you wish to appeal or ask for a discharge of an interim care order,a final care order, or an adoption placement,you have a valid excuse for the delay. You state that you are “out of time” simply because you have been refused a judgement and therefore cannot know the grounds against which you are appealing!

13:- RISK = future danger and “experts” make gypsylike predictions that are really just guesses that can never be proved. These so called “experts” are not infallible,Professors Meadows, Southall and Dr Marietta Higgs have all been discredited and in the Louise Woodward case the top experts in the country violently disagreed in a shaken baby case and each testified for the side that paid them! SS ignore experts who do not agree with them and only produce experts in court that will help their case!

14:- You do not suffer from a “personality disorder” just because you distrust social workers as many distinguished MPs, journalists and broadcasters think the same as you but do not face the same accusation!

15:- If your house was “cluttered” or untidy the SS should have helped you tidy up or at least warned you to do so rather than take your children without giving you a chance.

16:- Emotional abuse= expecting too much of your child, or treating the child with contempt and without love. This  can and should be disputed if you apply the legal definition specified later in this section. Usually the accusation of “risk of emotional abuse” is so vague that it cannot possibly be covered by the official definition given by the Department of Health. 

Your statement should say :-“There is no evidence to show that my children ever have suffered or risk suffering emotional abuse as defined below by the Department of health.

‘Emotional abuse is the persistent emotional ill-treatment of a child such as to cause severe and persistent adverse effects on the child’s emotional development. It may involve conveying to children that they are worthless or unloved, inadequate, or valued only insofar as they meet the needs of another person. It may feature age or developmentally inappropriate expectations being imposed on children. It may involve causing children frequently to feel frightened or in danger, or the exploitation or corruption of children. Some level of emotional abuse is involved in all types of ill treatment of a child, though it may occur alone’. (Department of Health et al, 1999, p.5-6)

17:- If school attendance was bad you should at least have received a written warning from the school or from SS before your children were removed! 

18:- Remember that social workers ARE NOT POLICE and cannot give you orders or forbid you to tell your children that you love them,miss them and are fighting to get them back! It is absolutely essential that you blurt out “I love you and want you back but wicked childstealers have kidnapped you and these horrible thieves are stopping you from coming home!” 

Say this or words to that effect before anyone can stop you, as SS nearly always tell children “mummy does not love you or want you any more” and the children MUST know the truth. Only a court can legally give you orders so do not be bluffed into signing documents or obeying orders from the SS!

19:- Social Workers have a statutory duty to try and keep families together not split them up, so they should be asked in court just what attempts they made to keep YOUR family together before taking the baby or the children!

QUOTE THE “HUMAN RIGHTS ACT”section 8:- (The most important)

Article 8: Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 

Obviously those who drafted Article 8 intended it to defend the family against oppression by the State. Only in the UK do perverse UK judges use it to defend the State against protests from  aggrieved families! Yes, these UK  judges say that the “privacy” of babies and young children outweighs the freedom of speech of their own parents. Those parents therefore who believe their children have been taken wrongly by social services are forbidden to protest openly or to go to the media under threat of jail if they do for “violation of their own children’s privacy!” A privacy that is ruthlessly disregarded by Social Services when they advertise those same children for adoption in the Daily Mirror and other periodicals like pedigree dogs complete with colour photos, first names, birth dates,and character descriptions that make these children easily identifiable by “the neighbours”

20:- YOU MUST BE ALLOWED TO SPEAK IN COURT AND TO SAY ALL YOU WANT TO SAY, CALL ALL THE WITNESSES YOU WANT TO CALL AND MAKE ALL THE POINTS AND ARGUMENTS YOU WANT TO MAKE! Sack any solicitor or barrister that refuses you these very elementary legal rights OR worse still who advises you to surrender and go along with everything the SS demand. You do not need a lawyer to earn easy money by arranging your surrender. If you represent yourself, at least then you won’t be gagged! You will at least have a chance to win!

For a more complete list of articles see below. (6, 8, 10 and 11 are the most relevant)

Click on the categories below to read the relevant article of the European Convention on Human Rights.

The right to life l Freedom from torture, inhuman and degrading treatment l Freedom from forced labour l Right to Liberty lFair trial l l Retrospective penalties l Privacy l Freedom of conscience l Freedom of expression l Freedom of assembly lMarriage and family l Freedom from discrimination l First Protocol

Article 2: Right to Life

(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary- (a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

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Article 3: Inhuman treatment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

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Article 4: Slavery

(1) No one shall be held in slavery or servitude.
(2) No one shall be required to perform forced or compulsory labour.
(3) For the purpose of this Article the term “forced or compulsory labour” shall not include:
(a) any work required to be done in the ordinary course of detention imposed in accordance to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in the case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.

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Article 5: Right to Liberty

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics and drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reason for his arrest and of any charge against him.
(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

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Article 6: Right to a fair trial

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3) Everyone charged with a criminal offence has the following minimum rights –

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

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Article 7: Retrospective crimes

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was criminal according to the general law recognised by civilised nations.

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Article 8: Right to privacy

(1) Everyone has the right for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

SPECIAL NOTE:-

Everyone has the right to respect for his private and family life, his home and his correspondence.

This is, in the most basic sense, a right to privacy. And it was passed by Parliament into law. Whenever it is cited in court in injunction cases, it is always balanced by judges against another right enshrined by the Convention, the right to freedom of expression under article 10.

Moreover, the Human Rights Act also has a specific provision which seeks to bolster the freedom of expression side of that balance. Section 12 provides

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to

(a)the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b)any relevant privacy code.


Article 9: Freedom of conscience

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

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Article 10: Freedom of Expression

(1) Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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Article 11: Freedom of Assembly

(1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

(2) No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.

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Article 12: Marriage and the family

Men and women of marriageable age shall have the right to marry and to found a family, according to national laws governing the exercise of this right.

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Article 14: Discrimination

The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Many of the above points will probably apply in YOUR case,and if they do you are advised to include them in your statement.

Practice Guidance: McKenzie Friends (Civil and Family Courts)

1) This Guidance applies to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts.It is issued as guidance (not as a Practice Direction) by the Master of the Rolls, as Head of Civil Justice, and the President of the Family Division, as Head of Family Justice. It is intended to remind courts and litigants of the principles set out in the authorities and supersedes the guidance contained in Practice Note (Family Courts: McKenzie Friends) (No 2) [2008] 1 WLR 2757, which is now withdrawn.It is issued in light of the increase in litigants-in-person (litigants) in all levels of the civil and family courts.

The Right to Reasonable Assistance

2) Litigants have the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-in-person. MFs have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation.

What McKenzie Friends may do

3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers; iii) quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do

4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses.

Exercising the Right to Reasonable Assistance

5) While litigants ordinarily have a right to receive reasonable assistance from MFs the court retains the power to refuse to permit such assistance. The court may do so where it is satisfied that, in that case, the interests of justice and fairness do not require the litigant to receive such assistance.

6) A litigant who wishes to exercise this right should inform the judge as soon as possible indicating who the MF will be. The proposed MF should

References to the judge or court should be read where proceedings are taking place under the Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, as a reference to a justices’ clerk or assistant justices’ clerk who is specifically authorised by a justices’ clerk to exercise the functions of the court at the relevant hearing. Where they are taking place under the Family Proceedings Courts (Childrens Act 1989) Rules 1991 they should be read consistently with the provisions of those Rules, specifically rule 16A(5A).

R v Leicester City Justices, ex parte Barrow [1991] 260, Chauhan v Chauhan [1997] FCR 206, R v Bow County Court, ex parte Pelling [1999] 1 WLR 1807, Attorney-General v Purvis [2003] EWHC 3190 (Admin), Clarkson v Gilbert [2000] CP Rep 58, United Building and Plumbing Contractors v Kajla[2002] EWCA Civ 628, Re O (Children) (Hearing in Private: Assistance) [2005] 3 WLR 1191, Westland Helicopters Ltd v Sheikh Salah Al-Hejailan (No 2)[2004] 2 Lloyd’s Rep 535. Agassi v Robinson (Inspector of Taxes) (No 2) [2006] 1 WLR 2126, Re N (A Child) (McKenzie Friend: Rights of Audience) Practice Note [2008] 1 WLR 2743.

1 produce a short curriculum vitae or other statement setting out relevant experience, confirming that he or she has no interest in the case and understands the MF’s role and the duty of confidentiality.

7) If the court considers that there might be grounds for circumscribing the right to receive such assistance, or a party objects to the presence of, or assistance given by a MF, it is not for the litigant to justify the exercise of the right. It is for the court or the objecting party to provide sufficient reasons why the litigant should not receive such assistance.

8) When considering whether to circumscribe the right to assistance or refuse a MF permission to attend the right to a fair trial is engaged. The matter should be considered carefully. The litigant should be given a reasonable opportunity to argue the point. The proposed MF should not be excluded from that hearing and should normally be allowed to help the litigant.

9) Where proceedings are in closed court, i.e. the hearing is in chambers, is in private, or the proceedings relate to a child, the litigant is required to justify the MF’s presence in court. The presumption in favour of permitting a MF to attend such hearings, and thereby enable litigants to exercise the right to assistance, is a strong one.

10) The court may refuse to allow a litigant to exercise the right to receive assistance at the start of a hearing. The court can also circumscribe the right during the course of a hearing. It may be refused at the start of a hearing or later circumscribed where the court forms the view that a MF may give, has given, or is giving, assistance which impedes the efficient administration of justice. However, the court should also consider whether a firm and unequivocal warning to the litigant and/or MF might suffice in the first instance.

11) A decision by the court not to curtail assistance from a MF should be regarded as final, save on the ground of subsequent misconduct by the MF or on the ground that the MF’s continuing presence will impede the efficient administration of justice. In such event the court should give a short judgment setting out the reasons why it has curtailed the right to assistance. Litigants may appeal such decisions. MFs have no standing to do so.

12) The following factors should not be taken to justify the court refusing to permit a litigant receiving such assistance:

(i) The case or application is simple or straightforward, or is, for instance, a directions or case management hearing;

(ii) The litigant appears capable of conducting the case without assistance;

(iii) The litigant is unrepresented through choice;

(iv) The other party is not represented;

(v) The proposed MF belongs to an organisation that promotes a particular cause;

2

Legal Services Act 2007 s12 – 19 and Schedule 3.

(vi) The proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs

13) A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.

14) Where a litigant is receiving assistance from a MF in care proceedings, the court should consider the MF’s attendance at any advocates’ meetings directed by the court, and, with regard to cases commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice Direction Guide to Case Management in Public Law Proceedings.

15) Litigants are permitted to communicate any information, including filed evidence, relating to the proceedings to MFs for the purpose of obtaining advice or assistance in relation to the proceedings.

16) Legal representatives should ensure that documents are served on litigants in good time to enable them to seek assistance regarding their content from MFs in advance of any hearing or advocates’ meeting.

17) The High Court can, under its inherent jurisdiction, impose a civil restraint order on MFs who repeatedly act in ways that undermine the efficient administration of justice.

Rights of audience and rights to conduct litigation

18) MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis.3

19) Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.

3

20) Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. The court should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience.

21) Examples of the type of special circumstances which have been held to justify the grant of a right of audience to a lay person, including a MF, are: i) that person is a close relative of the litigant; ii) health problems preclude the litigant from addressing the court, or conducting litigation, and the litigant cannot afford to pay for a qualified legal representative; iii) the litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the proceedings.

22) It is for the litigant to persuade the court that the circumstances of the case are such that it is in the interests of justice for the court to grant a lay person a right of audience or a right to conduct litigation.

23) The grant of a right of audience or a right to conduct litigation to lay persons who hold themselves out as professional advocates or professional MFs or who seek to exercise such rights on a regular basis, whether for reward or not, will however only be granted in exceptional circumstances. To do otherwise would tend to subvert the will of Parliament.

24) If a litigant wants a lay person to be granted a right of audience, an application must be made at the start of the hearing. If a right to conduct litigation is sought such an application must be made at the earliest possible time and must be made, in any event, before the lay person does anything which amounts to the conduct of litigation. It is for litigants to persuade the court, on a case-by-case basis, that the grant of such rights is justified.

25) Rights of audience and the right to conduct litigation are separate rights. The grant of one right to a lay person does not mean that a grant of the other right has been made. If both rights are sought their grant must be applied for individually and justified separately.

26) Having granted either a right of audience or a right to conduct litigation, the court has the power to remove either right. The grant of such rights in one set of proceedings cannot be relied on as a precedent supporting their grant in future proceedings.

Remuneration

27) Litigants can enter into lawful agreements to pay fees to MFs for the provision of reasonable assistance in court or out of court by, for instance, carrying out clerical or mechanical activities, such as photocopying documents, preparing bundles, delivering documents to opposing parties or the court, or the provision of legal advice in connection with court 4 proceedings. Such fees cannot be lawfully recovered from the opposing party.

28) Fees said to be incurred by MFs for carrying out the conduct of litigation, where the court has not granted such a right, cannot lawfully be recovered from either the litigant for whom they carry out such work or the opposing party.

29) Fees said to be incurred by MFs for carrying out the conduct of litigation after the court has granted such a right are in principle recoverable from the litigant for whom the work is carried out. Such fees cannot be lawfully recovered from the opposing party.

30) Fees said to be incurred by MFs for exercising a right of audience following the grant of such a right by the court are in principle recoverable from the litigant on whose behalf the right is exercised. Such fees are also recoverable, in principle, from the opposing party as a recoverable disbursement: CPR 48.6(2) and 48(6)(3)(ii).

Personal Support Unit & Citizen’s Advice Bureau

31) Litigants should also be aware of the services provided by local Personal Support Units and Citizens’ Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at cbps@bello.co.uk or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk.

Lord Neuberger of Abbotsbury, Master of the Rolls

Sir Nicholas Wall, President of the Family Division

12 July 2010

IF YOU EMAIL ME THE STATEMENT (ian@monaco.mc) YOU HAVE COMPOSED I WILL ALWAYS READ IT AND SUGGEST POSSIBLE IMPROVEMENTS! You can also phone me to discuss it on 0033 626 875 684

Remember that if you need transcripts from a previous case you can get at least one free!

Practice Memorandum No. 4 – Transcripts at Public Expense (PDF 16KB) 31 December 2004
Sets out when a transcript of an oral hearing before a Commissioner will be provided at public expense.

Transcripts at public expense
 11.1 Where the lower court or the appeal court is satisfied that an unrepresented appellant is in such poor financial circumstances that the cost of a transcript would be an excessive burden, the court may certify that the cost of obtaining one official transcript should be borne at public expense. 11.2 In the case of a request for an official transcript of evidence or proceedings to be paid for at public expense, the court must also be satisfied that there are reasonable grounds for appeal. Whenever possible a request for a transcript at public expense should be made to the lower court when asking for permission to appeal. Transcripts of evidence are not generally needed for an application for permission to appeal.
11.3 If you wish to ask the court for transcripts at public expense and you did not ask the lower court or your request was refused you should contact the appeal court immediately. Civil Appeals Office 30 June 2004
THIS IS THE QUESTION YOU SHOULD ASK EVERY SOCIAL WORKER WHO ENTERS THE WITNESS BOX !!
The various Children Acts all say that every effort should be made to keep children with their birth families.
CAN YOU PLEASE DESCRIBE IN DETAIL ANY EFFORTS YOU MADE TO KEEP MY CHILDREN WITH ME??
IF YOU ARE REPRESENTED INSIST THAT YOUR BARRISTER PROMISES TO ASK YOU THE FOLLOWING QUESTION WHEN YOU ARE IN THE WITNESS BOX!
HAVE YOU ANYTHING YOU WOULD LIKE TO SAY TO THE COURT?
This question makes sure that you have a chance to say everything you like and the opportunity to put across all the important points that would otherwise get left out!

In court, above all be brief! Your two special words in court when questioned by SS lawyers (or by the SS at case meetings or by therapists,psychologists etc) must be YES and NO. If you are pressed to explain further, do not elaborate or try to explain your answers with more than 9 or 10 words as only things you let slip that can count against you will be noted and anything favourable will be discarded and forgotten!

Never think that if you “admit” some small fault that it will make your story more credible. It will not, it will simply help the SS to keep your children so admit NOTHING voluntarily; keep firm in the simple and forceful assertion that the children need love and care and you are the best person to give it! Above all stress that THEY are the victims of SS abuse not you, as it is their welfare that is paramount not yours!

As already stated in the introduction section, children of all ages even those under 12 aged 7 or 8 for example can go to any phone box and call parents reverse charges if they are quietly told how to do this.

Dial 100 from any private phone or public call box and you will be offered 4 options(choices) Choose option4 ask the operator for a call transferring the charges. The operator will then ask you for your name and the number you are calling.(this must be to a fixed line not a mobile)Your mother or father will then say ok they accept the call and no money is needed from the child who is calling! 

 If there is no court order section34 forbidding contact they can always meet you for an afternoon or so and it would be an assault  for social workers to physically stop them ! 

The important thing is firstly to keep in touch with your children  telling them you still love them and are fighting the wicked social workers who kidnapped them.(social workers have absolutely NO legal right to censor your conversation)You should then take positive steps to recover them and welcome them back home .

Allegations that a baby has been shaken and consequently injured or even killed are hard to prove but also hard to disprove! Top experts who appeared for both sides in the Louise Woodward case in the USA disagreed with each other and testified in favour of the side that paid them in each case!This does cast doubt on the reliability of highly paid experts who give categoric opinions in court!              

The attorney general called for a review by the best medical and scientific brains in Britain last year and in the addendum to the report paras 14.1 and 14.2 concluded that even when all 3 symptoms were present (known as the triad; being retinal bleeding,subdural bleeding, and brain damage) it would NOT be safe to conclude that a baby had been shaken without a previous history of abuse or other injuries such as extensive bruising or broken bones.

FORCED ADOPTION:- The weak point!

Take a look at the articles in the complete convention to see which of them SS have broken in their dealings with you! Remember that brothers and sisters and newborn babies all have a Human Right to enjoy face to face contact with each other even after being adopted into different families.Remember to tell any older child with whom you still do have contact who is capable of understanding the situation to go to a solicitor to demand visits to a sibling  that has been adopted and consequently that child when old enough to speak and understand can let you know all about the baby or child you lost so that eventually you can contact them yourself and tell them who you are and who they are! 

One mother I have been helping succeeded in persuading the court in Strasbourg to take up her case! The whole affair is still very much ongoing and despite delays initiated by the SS we are hopeful eventually of a satisfactory conclusion. She is willing to talk to other parents whose children have (like hers) been wrongly put in the “care” of social services. She will explain the steps she took after her baby and her other children were brutally snatched even though she was never accused of harming them. The lawyers acting for the SS were so worried when Sharon asked the judge for a copy of the judgement in the family court, that their barrister shouted out across the court room “Don’t give her anything she’s contacted Strasbourg!” Sharon’s home number is 0151 295 2268. Or try her mobile 07877 316 250.

A second mother had her baby ruthlessly “confiscated” at birth because her husband was merely “suspected” nearly 10 years ago of injuring one of his children from a previous marriage and who contracted cerebral palsy. Both children were left in the joint care of their father and his ex-wife so the SS were not too concerned at the time. The second wife’s new baby however was the SS said “ideal for adoption” and though she was herself blameless, she was judged too supportive of her husband!
They persuaded the European Court of Human Rights to take up their case in Strasbourg and will explain how they did it to you and other parents. Just contact them at Tel:- 0208 482 3019.

Your Rights: The Human Rights Act: European Court of Human Rights 

F-67075 Strasbourg Cedex France Fax: 00 33 3 88 41 27 30 When it has received your letter the ECHR will send you one of its application forms to complete. 
http://www.yourrights.org.uk/…/european-court-of-human-rights/european-court-of-human-rights.shtml – 20k – Cached –Similar pages

How soon can I be released?

You can’t be kept at a police station for more than 24 hours without being charged, although this can be extended to 36 hours with the authority of a police superintendent, and longer with the authority of a magistrate.

The one exception is for arrests under the Terrorism Act, where you can be held without charge for up to seven days.

If there’s not enough evidence to charge you, you’ll be released on police bail. You don’t have to pay to be released on police bail, but you’ll have to return to the station for further questioning when asked.

If you’re charged and the police think there’s a risk that you may commit another offence, fail to turn up at court, intimidate other witnesses or obstruct the course of justice, they can impose conditional bail. This means your freedom will be restricted in some way. For example, a curfew may be imposed on you if your offence was committed at night.

If you’ve been charged with a serious offence, you may be refused release and remanded in custody until trial. If you are found guilty, the time spent in prison before trial will be deducted from your sentence.

Can I complain if I think I’ve been a victim of police misconduct?

If you believe you’ve been arrested and detained unlawfully or your rights have been abused, you can complain to:

Important please note: A ‘sympathetic’ Social Services complaints officer brought up in care thought this might be worth sharing.http://www.pfc.org.uk/legal/echrtext.htm 

  1. When writing complaints it is a good idea to write as little as possible in the complaint!

He recommends writing something like…

Your name/address/date ect

I wish to make a complaint about the Local Authority’s failure to consult with me regarding my child’s medical treatment (for example)
I also make this complaint under section 26 Children Act and request assistance to write this.

Yours sincerely etc

He says they are then obliged to visit you, take the details, write your complaint and give it to you to check before signing.

That way not only do you get help to write the complaint but you don’t ‘show your hand before the investigation begins.

He said “never give them all the evidence until you see the independent investigator.”

If you really do have a serious complaint against the police I advise you to go directly to the independent police complaints commission and follow the procedure outlined below .

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