The problem with family courts

In the latest ‘cot death’ controversy case, the Court of Appeal in London on 19 January 2004 quashed Angela Cannings’ convictions for murdering two of her children. The Court expressed concern about expert evidence given at Cannings’ trial by paediatrician Professor Roy Meadow, and indicated that ‘where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death…the prosecution of a parent or parents for murder should not be started, or continued….’ (1)

In an unprecedented move, the attorney general has announced that over 250 cases where parents were convicted of harming their children following evidence from Roy Meadow should be urgently reviewed. It is estimated that over 5000 civil cases, where family courts separated children from their parents on Meadow’s advice, also have to be reviewed (2). ‘We will make sure that we recognise that not only injustices done in the criminal justice system but any potential injustices in care proceedings are identified and acted on’ (3), the solicitor-general Harriet Harman has told Parliament.

This is not going to be straightforward. According to the minister for children, Margaret Hodge, ‘any parent who feels that a judgment was made on the back of evidence from Meadow would be entitled to go back to the courts and try to have the case reopened and would be eligible for legal aid’ (4). But why should parents who have lost their children through possible miscarriages of justice have to go back to the same courts that let them down in the first place?

Unlike the Court of Criminal Appeal, the family courts have no experience of righting miscarriages of justice. What is needed is a public inquiry into this whole situation, which would need to be chaired by someone with no ties either to the family courts, or to child protection work.

There are a number of reasons why we are in the present mess. Historically, child abuse was assumed to be a marginal problem, and the draconian laws introduced to tackle it received little attention or debate. Now, child abuse is perceived as a widespread problem, with the consequence that more and more families are exposed to intervention.

Philip Jenkins, author of Intimate Enemies: Moral Panics in Contemporary Great Britain, has noted how ideas of child abuse changed from the 1960s onwards. From the 1980s, official concerns shifted from the idea of physical to sexual abuse. He explains this development in terms of ‘the influence of feminist theorists and pressure groups; of charities and interest groups, above all, the National Society for the Prevention of Cruelty to Children (NSPCC); and of the bureaucratic needs of social services agencies.’ (5) This led to the creation of agencies and units with full-time responsibility of detecting and combating child abuse. In the 1990s, attention was increasingly paid to more arcane, medicalised forms of abuse, such as the now notorious ‘Munchausen syndrome by proxy’.

Jenkins notes that many reforms introduced in the name of child protection in recent decades have involved sweeping attacks on traditional Anglo-American legal rights and protections. These rights include: the right to due process, the right to be presumed innocent until proved guilty, the right to be tried in public, the right to confront one’s accusers, and the right to ‘equality of arms’ (that is, not to be tried under significantly less advantageous conditions that those enjoyed by one’s opponent). Other protections, such as restrictions on the use of hearsay evidence, the right to consult the expert of one’s choice, and even the right to communicate in confidence with one’s lawyers (legal professional privilege) also suffered.

Such traditional legal protections were challenged by what Jenkins calls ‘therapeutic values, the sense that neutral professionals were working in the best interests of the child and should not be hampered by outdated technicalities’ (6).

Our child welfare courts have therefore become accustomed to a model of therapeutic jurisprudence, in which the best interests of the child are paramount (7). This has certain analogies with a Soviet-style conception of justice, which emphasises outcomes over processes, and which requires the judge to carry out social policy, rather than act as an independent arbiter.

This has ominous consequences, as a US judge explains. ‘Therapeutic jurisprudence marks a major and in many ways a truly radical shift in the historic function of courts of law and the basic purpose for which they have been established under our form of government. It also marks a fundamental shift in judges’ loyalty away from principles of due process and toward particular social policies. These policies are less concerned with judicial impartiality and fair hearings and more concerned with achieving particular results’, writes Arthur Christean. He adds: ‘There is great danger to our freedoms and way of life when courts of law abandon justice and the rule of law in favour of doing things to people for their own good and because it is deemed to be in their best interest or the best interest of the state.’ (7)

The therapeutic model has had a corrosive effect in UK family courts, which have become inured to the absence of the normal safeguards for litigants. This in turn causes serious problems for parents accused of harming their children, or of posing a potential risk to them.

At present, parents accused of posing a threat to their child must take on not one, but two arms of the state: the local authority, and the Orwellian-sounding CAFCASS, which acts for children. One or more social workers, or experts, may interview a parent, but no tape-recording is made. Sometimes the parent is not allowed to have anyone else present, even to take a note. Parents accused of posing a risk to their child may also be pressed to admit ‘guilt’ in order to get the child back. As many parents recognise, this is a catch-22.

If social workers decide that a child should be removed from its parents because there are concerns about its safety, they can get an Emergency Protection Order (EPO) from a magistrate, without the parents having the right to be heard in opposition. The evidence put before the magistrates is not formally recorded in an affidavit, and the order can then be presented as a ‘fait accompli’. This can set in train a destructive downwards spiral of intervention, culminating in official demands that the child should be separated permanently from its parents by adoption. Even newborn babies can be taken away at birth and subsequently put up for adoption: an extraordinarily harsh measure, which has been criticised by the European Court of Human Rights in Strasbourg (8).

Family courts in this country operate in a climate of extreme secrecy. Both press and public are routinely excluded. Sometimes parents may be injuncted from telling anyone that child protection proceedings have been initiated against them. They are not supposed to show documents in the case to anyone else.

It is hardly surprising if abuses occur. In May 2003, a judge noted examples of a social worker lying both to a child’s mother and even to a court, on the instructions of two superiors. The judge castigated the social worker for a ‘grossly unprofessional and wholly improper stratagem’ and the local authority for ‘wholly unprofessional and quite shocking conduct’ (9). It seems that nothing was done to punish the local authority, however, beyond the judge’s ‘censure’ and an order that the local authority pay legal costs. This seems woefully inadequate.

Before the Second World War, the courts recognised the public’s right to be present, even in family hearings. Lord Atkin said in 1936, ‘Justice is not a cloistered virtue.’ (10) Lord Blanesburgh said: ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure.’ (11) There are powerful arguments why we should revert to the old custom that justice in family courts should be done in the open. There is an obvious public interest in society being allowed to know what sorts of parental misconduct warrant social services intervention these days.

The glare of publicity would also force local authorities to ensure that applications are properly prepared, and that social workers or expert witnesses did not abuse their position by making unfounded or misleading statements. And experts giving evidence would have their claims subjected to public scrutiny, and critical assessment by their peers.

All in all, a case can be made for taking away child protection work from the civil courts, and leaving the prosecution of really serious abuse to the criminal authorities.

Barbara Hewson is a barrister at Hardwicke Civil

(1) Regina v Angela Canning [2004] EWCA Crim 01, paras. 17, 178

(2) ‘Harman extends cot death review’, Guardian, 20 January 2004

(3) ‘Care Case Review follows cot death ruling’, Guardian, 21 January 2004

(4) ‘We can’t reunite thousands of mothers with children wrongly taken from them’, Sunday Telegraph, 18 January 2004

(5) Intimate Enemies: Moral Panics in Contemporary Great Britain, Philip Jenkins, Aldine de Gruyter, New York, 1992, p16. For analyses of child protection scares in the United States, see Threatened Children: Rhetoric and Concern about Child-Victims, Joel Best, University of Chicago, 1993; Moral Panic: Changing Concepts of the Child Molester in Modern America, Philip Jenkins, Yale University Press, 1998

(6) Intimate Enemies,Jenkins, p125, p129

(7) Section 1(1) Children Act 1989

(8) Therapeutic Jurisprudence: Embracing a Tainted Ideal, Arthur G Christean, January 2002, FOU 02-01. Christean begins by examining the vogue for ‘drug courts’ and goes on to examine child welfare law

(9) P. C. & S. v United Kingdom, (2002) 35 EHRR 1075, judgment paras. 11, 132-3

(10) A Metropolitan Borough Council v JJ and S (a child by his Guardian Ad Litem) [2003] EWHC 976 (Fam). See paras. 15-16, 18, 24, 74, 81

(11) Ambard v AG for Trinidad and Tobago [1936] AC 322 at 335

(12) McPherson v McPherson [1936] AC 177 at 200