Miscarriage of Justice

June 9, 2009 permalink

John Hemming comments on British family courts. Hard as it is to believe, they are even worse than in Canada. Here at least parents who present a good case to the court have a chance of getting their children back.

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Birmingham Post

Machine for injustice

May 28 2009 By John Hemming

MP John Hemming looks at the effect of the latest changes in Family Court proceedings.

So, the new rules on Family Court Proceedings came into force about a month ago.

Indeed from time to time a journalist has attended a hearing. However, the journalist is then not allowed to publish anything about what happened at the hearing.

Given that journalists earn their crust by publishing there is little reason for any journalist to attend a family court and this change can only be described as a confidence trick by Ministry of Justice civil servants. Jack Straw, however, has now agreed that there will be a further step.

The new rules, however, do involve some improvements. It will be lawful for parents or children to tell their MP about what happened in court. It will also be lawful for parents or children to tell a journalist what happened. However, it remains that publication can only happen with the permission of the judge.

Public family law is that part of the law where the state (the local childrens services authority) is using judicial authority to remove children from their parents. Over the past three years since the formation of the “justice for families” campaign, I have been able to review a large number of cases of public family law. As with Camilla Cavendish, Denise Robertson and Sue Reid I have been shocked at what went on.

It is, however, best to start with some statistics. This gives the overall picture of what happens in the family courts. In 2007 local authorities in England applied for 8,173 care orders. 7,624 orders were made, 336 applications were withdrawn by the council, 290 “no order” decisions were made and 21 orders were refused. In other words the judgment of risk of the social workers working for the council was so good that they were only completely refused by the judge 21 times (0.27%). More importantly 93% of the time the judge merely rubberstamped the proposals from the local authority.

Perhaps more interesting is that on 679 occasions a local authority has applied to imprison a child – in a secret court where imprisonment is the threat for talking about what went on – in the “best interests of the child”. 634 prison sentences were given, no orders were refused, four no order decisions were made and 41 applications withdrawn. Now conditions in secure children’s homes are quite different to prison. It is, however, often locking a child up hundreds of miles from their parents mainly because they keep running away to go back to their parents. This is done in secret. Where is the accountability?

It is worth comparing the results in the family courts to those in the criminal courts. In 2007 87,553 defendants were sent for trial. 59,162 pleaded guilty, of the 28,391 who pleaded not guilty 17,184 were acquitted and only 11,207 convicted. That is an acquittal rate of 61% which is 19.6% of all cases.

Defenders of the system will say the standard of proof in criminal proceedings is higher than that in family proceedings. This is true. More evidence is needed in criminal proceedings, but the Crown Prosecution Service know that. If the CPS completely lose 19.6% of the time why do local authorities only completely lose 0.27% of the time. Is it that the judgment of the social workers is so good compared to the CPS that they are almost invariably right?

The reason why transparency is needed in the family courts is that they are a machine for miscarriages of justice. Those people who work in the system believe that it is so reliable that it very rarely goes wrong. My experience is, however, the opposite and that it is a machine for miscarriages of justice.

I am watching a case at the moment where it appears that the judge is going to make up a case against a father. I am also watching a case where a judge has specifically banned a father from talking to me about the case. What do these people want to hide?

Apologists for the family courts will claim that there are checks and balances in place that prevent miscarriages of justice. There is, after all, the Court of Appeal – the “engine room of UK justice”. Parents can always appeal their case.

This is true in principle, but the practice is different. Firstly parents need to get legal aid for the appeal. This involves a barrister being willing to write an opinion for the legal services commission that the parents are likely to win their case. There is no funding for this. Generally parents don’t win in England anyway. This hurdle stops most potential appeals. Desperate parents who are losing their children to adoption then learn that they can appeal as litigants in person (without legal advice). This brings up the second hurdle.

One of the saddest things about forced adoption cases is that parents end up with boxes and boxes of paper replacing their beloved children. In all of this paper, the key documents are the orders and judgments.

Orders are the judges’ decisions. The judgments are the reasons why the judge made the decision. Normally when I look at someone’s papers they have orders galore, but no judgments. That is a problem because if you wish to appeal a decision you need to demonstrate why the judges reasoning is “plainly wrong”. If you don’t have a transcript of the judgment you cannot appeal.

There have been cases in Liverpool where it has taken over a year to get a transcript of the judgment. If you want to take a case from the Court of Appeal to the House of Lords or indeed the European Court of Human Rights you need the judgment from the Court of Appeal. The Appeal Court judgements are special because they are also anonymously published. Two appeal court judges LJ Wall and LJ Thorpe are particularly good at sitting on transcripts of judgments. Two cases where I am helping parents as litigants in person in front of them have had delays of over a month recently. One judgment took almost four months to pop out of the system. The other case had a hearing in early March and the transcript is stuck somewhere in the system.

It is important to understand that much family court ‘evidence’ is not ‘evidence’, it is ‘opinion’. The family courts rely on opinion from ‘experts’. Not only that but you need permission from the court to instruct an expert and it is contempt of court to instruct an expert without permission from the court. This puts all the cards in the hands of the local authority. The local authority is taking away children from their families every week. The parents only have one exercise. The local authority does most of the assessments, agrees as to who can be the expert and even recommends solicitors to the parents.

Social workers will admit that they “advocate for the child”. This involves them talking to the experts about the contents of the report to try to ensure that it is favourable to the local authority. At the same time the parents will be doing the same. However, the difference is that if an expert upsets the local authority they should expect the stream of fees for expert reports to dry up. I have seen expert reports that cost £28,000 although normally they are more like £4,000-£5,000.

One of the worst things that can happen normally happens only to mothers. That is that the local authority pays an expert who says that the mother is “incapable of instructing a solicitor”. Then the Official Solicitor comes in and normally concedes the case against the mother. I have dealt with two cases like this where no second opinion was allowed, but after we have got the case as far as the European Court of Human Rights we have managed to get a second opinion which makes it quite clear that the mother does understand what is going on.

Using the issue of mental capacity to prevent someone contesting a criminal case was made unlawful in the 1800s. It really should not be possible to do this against mothers threatened with the removal of their children in the 2000s. However, it happens between 150 and 200 times a year.

These are only a few of the dreadful things that happen in the English Family Courts. The government’s failure on this and the judicial willingness to keep the secret gravy train pouring for practitioners is unacceptable.

Those who have seen the dreadful things that are allowed to happen will not rest until this is resolved.

* John Hemming is Lib Dem Mp for Yardley

Source: Birmingham Post