Family Courts are the B-side of the Law

Camilla Cavendish, The Times December 26 2006

What a strange, fumbling kind of justice system it is that condemns a woman as an unfit mother for the heinous crime of trusting her husband. Yet this is what seems to have happened in a recent case that I feel compelled to write about, even though legal restrictions force me to leave out much of the detail.

The nub of the case is this. A woman, let us call her Janie, gave birth to her first and only child a year ago. That baby was taken away from her and subsequently put up for adoption. Not because of her own failure to care for the baby — her own love and care never seem to have been in question. No. She has lost her baby because of a suspicion that her husband John may have injured another child in his previous marriage almost ten years ago.

The suspicion was no more than that. John was never charged with anything, let alone convicted. Social workers were never sufficiently worried to take that first child into care. Since his divorce John has shared custody of that child perfectly amicably with his ex-wife. Yet the same local authority which left the first child with him has forbidden him to see this new baby. And his new wife, despite having nothing to do with the first case, may never see her baby again.

Unless this case is overruled in the European Court of Human Rights (ECHR) in Strasbourg, where it is now heading, it will set a peculiar precedent. For it implies that any British mother could be penalised for choosing a partner to whom the State has taken a dislike: penalised with the loss of the thing that is most precious to her in the world.

It cannot be this simple, you are thinking. Well, not quite. The child of the first marriage is disabled, and did seem to have suffered an injury — I am not permitted to say more. But no one knows how. Both John and his first wife have always protested their innocence. They had a second child who came to no harm. No court will ever truly know whether John was innocent. But the fact is that he was never found guilty. For the local authority to leave him alone with a child that it thought he had harmed, and to take away another that had not been harmed, is utterly hypocritical. No court should be able to punish you for a crime you may commit, when there is no evidence.

It should, surely, be a crime to remove a newborn baby from a mother who has never harmed it.

For that in itself is a form of abuse. Yet the secret State often chooses to abuse the children itself, rather than let them run the risk of staying put. They are at least alive, it calculates, even if it is a diminished kind of alive, deprived of the mother bond. And too often, it strikes the wrong balance. In 2002, the ECHR ruled against the British Government for removing a new baby from its mother in hospital and refusing even to let her cuddle it under supervision, when there was no evidence that the baby faced a serious risk at that time. The judgment came too late, though. The baby had already been adopted.

This is what Janie fears. The ECHR has agreed to hear her appeal and to consider whether the English court ruling breached Janie and John’s right to family life, to freedom of opinion and to freedom of expression. That is quite a ticket. But even if the ECHR finds in Janie’s favour, it may be too late. The local authority is already seeking families to adopt her baby. Her only hope is that prospective adopters will be put off by knowing of her appeal.

Any lawyer will tell you that family courts are the B-side of the legal system. The majority of judgments will never be read outside the courtroom. Perhaps judges fear the consequences if they do not support social services and social services are later proved right. They seem to start from the assumption that children are de facto wards of court who need protection from their parents.

Even then, Janie’s case seems extraordinary. Certainly the parents are not the brightest people in the world. They are not perfect. But the more I learn about it, the more I believe that Janie and John’s biggest mistakes were emotional. Janie seems to have been very co-operative. However, John has been irritable, even aggressive, which would support the view that he has a violent nature. But can you really convict on that basis? Which of us could control our temper if faced with losing a child to a bunch of hypocrites? In a Hollywood movie, anger is a natural reaction to injustice. In an English suburb, defiance makes you guilty. The legal system wants “remorse”. But how can you show remorse for something you haven’t done?

Until this case I had tended to be sceptical about the claims that the Government’s targets for adoption were leading to miscarriages of justice. I still feel that ministers were right to want to speed up adoption and to release more children more quickly from the hell of care. But I have now started to take more seriously the argument that these targets have created a perverse incentive for local authorities to take more babies into care. Babies are, after all, more attractive to prospective adopters than older children and therefore an easy way to reach those targets. In Janie and John’s case, you do have to wonder why the authorities have rushed to take away a healthy baby, when they did not take away a disabled one.

Janie’s case seems to me to make a strong argument for introducing juries. Why is a burglar facing six months in jail allowed to ask for a jury trial, but a mother facing the irretrievable loss of her only child is not? Mistakes will always be made when the ordinary, imperfect citizen is judged by the imperfect and powerful. Personally, I would rather face 12 men good and true.

The parents asked judge Munby to stop any adoption of their daughter until the European Court at Strasbourg until a verdict had been given by the European Court in Strasbourg. Exceptionally Judge Munby published his refusal for all to see!

As Camilla Cavendish writes in the Times article above, a burglar facing the possibility of 6 months or more in prison can demand a trial by jury, and quite right too! On the other hand, a mother whose baby has been snatched at birth by social services for “risk of future emotional abuse” can lose that baby for the rest of her life to FORCED ADOPTION but cannot demand that her case be heard by a jury.

Judges in family courts nearly always side with social services in such cases, probably out of caution as just one mistake could mean severe public criticism. This however is no justification for refusing a hearing by jury in which the mother would at least have equal chances with the social services. Juries already pass verdicts in civil courts in complicated cases of city fraud and also libel cases so would have no difficulty in deciding whether mother and child should be separated.

Nearly all the injustices that are reported every day by parents whose children are confiscated in the “family courts” would be eliminated and Britain would be a fairer place!

Camilla Cavendish, of the Times replied to judge Munby as follows:-

The Rank Hypocrisy of Family Court Judges
by Camilla Cavendish

I was gratified this week to find that an article I wrote in December has been quoted in full by the Court of Appeal. (I only hope there were no typos.) It is flattering that Mr Justice Munby takes The Times seriously. It is of more import that he decided to publish his judgment on the case that I wrote about six months ago. For it is only when judges make their reasoning public that we can start to debate the grounds on which children should be taken into care.

A few long-suffering readers may remember that this peculiar case concerns a woman whose baby was removed by social workers, not because the child came to any harm but because there was a suspicion that her father might have injured a child from his previous marriage. That suspicion was never proven, no charges were ever brought and the child of the earlier marriage was never removed. But a woman who everyone agrees is blameless has lost her only child – for ever – because she is deemed to be besotted with a man who may pose a danger.

As so often in these situations, there are complex allegations and flawed characters. In my view it is questionable whether the father’s inability to conceal his loathing of social workers makes him unsuitable for parenthood. Mr Justice Munby has decided on several grounds not to grant an appeal. The case may still go to Strasbourg, but it will be too late: the child will have been adopted.

This couple have become a cause célèbre for campaigners who fear that the Government’s drive to get more children adopted is having a perverse effect on some local authorities. For the same local authority to leave a man alone with a child that it thought he had harmed, but to take away another that had not been harmed, does seem bizarre. Until you realise that the child from the first marriage was disabled, and older, and would have been hard to place with an adoptive family. The child from the second marriage was a healthy baby, just the kind of “adoptive commodity” that local authorities find relatively easy to place.

I still believe that ministers were right to want to speed children out of the hell of care. But they have put social services departments in a strange position. We now expect them to combine three contradictory roles: to protect children, to keep families together and to meet adoption targets (which bring financial rewards). Under pressure, in situations that are not clear-cut, those roles are bound to conflict.

What is the evidence? Government figures show a significant jump in the number of babies being taken into care, from 1,600 in 1995 to 2,800 in 2005: a 75 per cent increase in ten years. While there has been an increase across all age groups, it is much, much greater for babies. More 10 to 15-year-olds are removed, but the rate of increase was only 21 per cent.

One possible explanation is that the authorities are now monitoring pregnant women, especially teenagers and substance abusers. But there are also numerous examples of relatives being turned down by local authorities when they offer to take the children of a family member. Some of them may indeed be unsuitable. But the turning-down sometimes seems very peremptory. John Hemming, MP, who follows these issues closely, believes that “the [hard-to-place] children the targets were established to get adopted are not getting adopted; instead a completely new group of children are being taken into care, then adopted”. Ministers should be seriously alarmed if a failure to help difficult candidates find homes were being masked by a zealous pursuit of babies.

This case has also brought something else home to me: our hypocrisy about privacy. It is illegal for me to write about most care cases, or to read court papers, even when the parents involved beg me to. I can generally only write when judges go public. Yet I have discovered that even as I was writing about this case last year, painstakingly omitting much of the detail to ensure that no one could identify the child, her picture, real name and age were being published in a national newspaper. Not by a journalist, who would have been in contempt of court. But by an adoption agency, advertising for adopters.

Agencies have to find good homes for needy children. Many do a great job. But for parents who are routinely told that they will be in contempt if they dare to reveal the legal proceedings to anyone outside the court, or even to talk about the child by name, because his or her privacy is paramount, it is staggering to see their children being advertised like pets.

Contempt of court is a serious matter. Last year Harriet Harman, the Minister for Justice, admitted in Parliament that in 2005 “200 people were sent to prison by the family courts, which happens in complete privacy and secrecy”. Family court judges can send parents to prison for up to six months for contempt. Two hundred people is about four a week. That is far more than the number of suspected terrorists we have locked up without a fair trial. So where are the civil libertarians? One young woman was recently sent to Ashford prison for kidnapping her child back from social workers and trying to flee the country. Others seem to be committed for minor breaches of contact orders. The threat of jail is made time and again, and it is real.

The main justification used for keeping family courts secret is to protect the identities of children. It is the argument used to gag parents and the media. How strange that seems when a little girl, whose family struggled to get the right legal advice to keep her, can be paraded around the country.

Every judge in these adoption cases can decide to make their judgment public. Until they do, the pretence of privacy will be nothing but rank hypocrisy.

CLICK HERE TO READ JUDGMENT REFUSING LEAVE TO APPEAL

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