The Times Online Family Justice Campaign 2008
In July 2008 The Times newspaper launched its campaign to open up the family courts and make social services more accountable for the removal of children from their families. Read the articles below.
Family justice: the secret state that steals our children
Every year thousands of children are taken from their parents, largely on the say-so of ‘experts'. It is a secret and sometimes unjust process and the system must change
Camilla Cavendish, The Times Online, July 6 2008
Two weeks ago I got a phone call from a woman I hadn't seen for four years. She was calling to tell me that she was moving abroad, unable to bear the pain of living in the same country as the daughter she is no longer allowed to see. “I wanted to thank you,” she said, “for being the only person who ever gave me a fair hearing.” I was seized with guilt. This woman had asked for my help, and I had utterly failed her. Her story had been just so incredible. She described a world where courts need no criminal conviction to remove your child, only the word of a psychiatrist or doctor, and can deny you the chance to call any expert in your defence. A world that uses the “welfare of the child” to gag you from discussing your case. Where even if you prove yourself innocent on appeal, your children may already have been adopted: in which case you will never be allowed to contact them again. A world which had treated her so badly, this rather pretty and utterly normal young woman, that she was sincerely thanking me just for listening.
It had taken three calls from this lady and her boyfriend, a clean-cut army bloke, before I had agreed to go down to their provincial semi. We sat in their front room with the curtains drawn while they got out box after box of papers. And I got my first inkling of what it is like to go through the door into the secret state.
This particular case had started, as many do, with a custody battle. The mother had started to worry about her ex-partner's behaviour during his visits to their daughter. She approached social services to ask if they could supervise his visits. When the child then told a teacher that her father had touched her in bad places, the police were called. They filmed the child repeating the allegations. The upshot? A psychologist who watched the film but never met the mother, father or daughter wrote a report alleging that the mother had coached the daughter to lie. He never appeared in court, and was never crossexamined. Yet the court, encouraged by social workers, accepted his view. The judge ordered that the daughter should go to live with her father - a man the mother was convinced was an abuser.
My bitter regret, now, is that I did so little about that case. At the time I couldn't help wondering if there was not more to it than the mother had let on. And there may well have been. But today, I'm not so sure. Because so many elements of her story fit patterns that I have since heard again and again. The reliance on experts who have never met the accused. The stormtrooper behaviour of some social workers. The legal aid solicitors acting for parents who are always in a rush. This mother was plunged into a world of acronyms and organisations that she knew nothing about. She was always on the back foot. Having been the person who reached for help from the system, she became its victim.
The tale niggled away at me. I started asking questions. Soon after this encounter I met Denise and Nigel Clarkson, who had lost both their daughters after one sustained an unexplained injury, and who fought like tigers to get them back. Through the Eaton Foundation, which they founded, I met American doctors and radiologists who were challenging many of the assumptions made by British doctors who were diagnosing abuse from so-called “shaken baby syndrome” and certain tiny bone fractures.
I began to write about cases where judges were speaking out publicly about the failings of social services. In early 2006, Mr Justice Ryder denounced Oldham Council for taking a baby away from his parents because of a doctor who “strayed from the role of expert into the role of decision-maker” and a family court judge who “failed to detect that that was what had happened”. Two courts refused to let the parents seek a second medical opinion. It was a year, the most formative year of that child's life, before the Court of Appeal allowed them to call a neurologist who proved that the injury was caused before birth. We know of that blunder only because the judge involved chose to make his judgment public. Few judges do.
The stories began to pour in. People left messages on my answering machine saying that the system was rotten but that they dared not speak out, because they had managed to get their children back. Some had taken a sick child to hospital, only to be accused of physical abuse. Some had been accused of “emotional abuse”, a category that has no definition in British law but which has jumped 50 per cent in the past ten years as a reason for taking children into care. Quite a number had complained about their local authority, for letting them down over special-needs education, for example, only to find themselves in turn accused of neglect. One woman in Sheffield sobbed that her two autistic sons had been robbed of their mother, as well as the care they needed, because she was accused of making up their symptoms.
Some parents complained about social workers and hospitals refusing to give them copies of any papers or X-rays in their cases, which they needed to mount appeals. Every single one felt that the system was set against them before they could even assemble a defence. Some had real problems: violent ex-partners or unreliable new ones, low IQ, brushes with drugs in the past. Many had never been known to social services or the police before. All were desperate to be given the chance to prove that they were good parents, some begging the local authority to install CCTV cameras in their homes.
Many alleged that their children were treated far worse in care: unloved, not allowed to do homework, some with a new bruise almost every time they came for supervised contact, bruises that were never explained.
Since local authorities generally would not talk to me, citing confidentiality, I still had only part of the picture. Was there really a problem, or were these people all lying? I looked for figures. Were particular local authorities taking above-average numbers of children into care, for example? How many of these proceedings were contested? How many mothers were being accused of having Munchausen's Syndrome by Proxy, a psychiatric disorder that is supposed to be rare but seemed to be cropping up too often in my conversations? I would call the Home Office, which would refer me to the Lord Chancellor's Department, which would refer me to the various incarnations of the Education Department, which would usually refer me back to the Home Office. Many of my questions were met with the answer that the data was “not held centrally”. This whole area started to look more and more like a hole inside government that ministers were simply not interested in.
Telling the stories was fiendishly difficult. First there was the legal requirement to avoid publishing anything that might even indirectly lead to the identification of the child involved. This is understandable, but it means that what journalists can write is sometimes so thin, so patchy that it is hard to ask anyone to believe us - because the most pertinent facts are often very distinctive. It also means that we can never humanise stories with photos, of the kind that helped to secure the freedom of Angela Cannings and Sally Clark. This is despite the fact that children can be pictured and named in adoption magazines, even while their frantic parents are trying to mount an appeal to get them back. Secondly, there were often additional reporting restrictions. Some of these were sought by local authorities as soon as I called them to try to get their sides of the stories. Some of these orders were so badly drafted that our lawyers simply could not tell what we could say. Some bore no relation to the draft that we had been sent before the hearing. It costs money to fight such orders, money that local media may not have and nationals are reluctant to commit.
The more often my articles were spiked or denuded of interesting detail, the more incensed I became. I began to feel that we, the liberal press, were part of a conspiracy of silence against people who had no voice. Worse, their children had no voice.
Some of these children were being told that they were in care because their parents no longer wanted them. As soon as a care order is made, the local authority controls all communications between parents and children. In many cases contact is gradually reduced, sometimes from a few hours a week to an hour or so a month, at which point social workers can return to court and claim that the child no longer has a strong bond with his family. Such tactics are unbearable. Clearly there must be some protection for authorities that work in extremely tough territory. Social workers are lambasted as often for failing to protect children from danger as for misjudging the innocent.
The problem is when laws that are meant to protect professionals from malicious allegations become an armoury against truth. There are good reasons why it is illegal to name a child involved in family court proceedings. Family law cases are fraught enough, without publicity adding to children's suffering. But it is quite wrong that laws framed to protect child privacy are being used to protect the professionals. Two years ago, when the children taken into care by Rochdale Council in the fabricated “satanic abuse” scandal left care and publicly attacked the council for removing them, the council argued that it would be wrong to name the social workers because that would breach the children's privacy - even though the children were desperate to speak out the minute they were free.
It does not have to be like this. The media cannot name the victim in rape cases. But we do report the evidence. Family courts, which operate in camera, have a lower standard of proof than criminal courts. They “convict” on a balance of probabilities, rather than beyond a reasonable doubt. A lower threshold is thought acceptable because civil courts cannot send people to jail. But to lose your children, and for them to lose you, because a court finds that abuse is a “probability”, is a life sentence of another kind. This makes it even more vital that the system is accountable. Yet I cannot think of another area of public life that operates with so little scrutiny.
The main piece of legislation governing child protection is the 1989 Children Act. The Act was passed in the wake of the Cleveland scandal, in which allegations of sexual abuse by two consultant paediatricians at one hospital led to 121 children being removed from their homes. The Act clearly states that there should be “minimum intervention in family life” and that a court order should be made only if “it can be shown that this is better for the child than not making an order”.
Yet some parts of the country seem to have strayed a long way from that. This year, the education watchdog Ofsted became the regulator for Cafcass, the Children and Family Court Advisory and Support Service that provides guardians ad litem for children in care cases. Ofsted's first two reports so far have been devastating. “Inspectors could not find evidence,” Ofsted says, “about how service managers satisfy themselves that family court advisers are reaching sound conclusions in order to make the right recommendations to courts about children's lives”. It found that “most reports contain recommendations to the court that fail to take account of a key principle of the Children Act that there should be minimum state intervention in family life”. There is much more in similar vein. The hapless state of Cafcass is failing both children of innocent parents and children who are genuinely at risk.
Cafcass is one safeguard in the system that is manifestly failing. Another safeguard is that local authorities cannot remove children without a court order. But the manner in which these court orders are sought means that they are rarely refused (the Government has been unable to give me a single example of a refusal). Parents are not always informed that an order is even being sought, so are not able to defend themselves. Even if they are there, the momentum is unstoppable.
Bill Bache, the indefatigable solicitor who acted for Sally Clark, explained it to me this way. “Court proceedings are initiated within a day or two. The local authority knows the ropes. Most parents, including the brightest and most articulate, are often too distressed and shocked to think straight. They may well turn up unrepresented. The local authority makes its case, often in lurid terms, stressing that the children are in acute danger and they are requesting an immediate interim care order. There is no time sensibly to evaluate the evidence, therefore, no doubt wishing to be safe rather than sorry, the court grants the order. Suddenly the children are gone.”
It is impossible to describe the shock, the isolation, that parents feel once their child is gone. Even educated people who can afford a good lawyer struggle to think straight. They feel alone against the system. Judges rely on reports by experts, social workers and guardians, many of whom are used to working together. This can produce a fatal lack of objectivity. I have spoken to some exemplary social workers and judges in the past few years. It is not my intention to demonise them all. But we must be able to spot whether the same individuals are reaching erroneous conclusions over and over again. At the moment any expert, social worker or judge who makes mistakes, goes beyond their brief or is on a crusade against parents is virtually immune from scrutiny. They do not expect that their evidence or their judgments will ever be made public. Remember that Professor Roy Meadow was only uncovered because he gave misleading evidence in the criminal courts, which are open. If family courts remain closed we will never be able to feel sure that justice is being done.
Over the next few days I hope to paint a more detailed picture of the pieces of the secret state, offer some explanations as to why mistakes are made, and to outline some solutions. The Times' interest is more than theoretical: we will continue to challenge various injunctions in the courts. But we also need your help by asking you to write to your MP. We will not give up. Because to sever a child from its family without due cause is licensed state oppression of the worst kind. It is, in fact, child abuse.
Why the Government must act
Privacy laws are designed to protect at-risk children. Yet these same laws are cited to prevent local authority childcare professionals, expert witnesses and guardians from being subjected to scrutiny for decisions that can tear families apart.
The system claims that the welfare of children is paramount. But the only way to make the welfare of children paramount is to make childcare professionals properly accountable for their decisions.
The press is allowed to report the workings of the criminal courts, even in rape cases, where victim identities are kept confidential. Yet it is denied access to the family courts that make decisions with far-reaching consequences. In 2005 the Constitutional Affairs Select Committee advised that more transparency was needed and that family courts should be opened to the press in all but exceptional circumstances.
The Government consulted on the proposals, recognising that public confidence was plummeting. But it lost its nerve. The Ministry for Justice has yet to publish the results of a second consultation, which ended last October.
Eight months later the Government cannot even say when it will respond to the consultation.
Family courts: the hidden untouchables
In the second of our special articles, we explain how family courts operate in secrecy
Camilla Cavendish, The Times Online, July 7 2008
I wrote yesterday about my gradual realisation that the child protection system is a sort of secret state. Many social workers, psychiatrists and judges are doing their best to help families. But given their power to tear families apart, the lack of accountability is astonishing.
In March 2006 a High Court judge, Mr Justice McFarlane, condemned social workers who had removed a nine-year-old girl from her parents for 14 months in the erroneous belief that her mother was suffering from Munchausen's syndrome by proxy. They had jumped to this conclusion after the mother took the girl to hospital for stomach pains, and a nurse found nothing wrong. They asked magistrates for an emergency protection order to remove the child without telling the parents or seeking any medical opinion. It was granted.
The judge found that every one of the assertions made by the social services team leader was “misleading or incomplete or wrong”. He criticised magistrates for granting the order to take the girl. But he did not name the social workers. So we can never know who they are, or whether they are still working. It is a fair bet that none of the people involved has been disciplined.
Frontline social workers are employed by councils, which are theoretically controlled by elected councillors. But in child protection cases, councillors can be kept out of the loop. John Hemming, the Liberal Democrat MP who campaigns on these issues and has also been a Birmingham councillor, says that officials routinely refuse to answer questions. “Even as a councillor and member of the relevant scrutiny committee, they say no, we're not going to tell you anything, because of the secrecy of the family courts.” The privacy of the child has become synonymous with the privacy of the professionals.
Parents who want to complain have to go first to the local authority that they are complaining about. Most fear that to do so will entrench the local authority's dislike of them. The few who are brave enough to complain receive a routine response saying that the matter has been investigated internally, and that the local authority is satisfied. Chris Smith, who lost his children to adoption, discovered that the investigator appointed by the local authority was not allowed to see any of the crucial court documentation. When he challenged the council concerned to release key papers under the Data Protection Act, they delayed for so long that the evidence arrived too late for his appeal. Many parents believe that their conversations with social workers have been distorted. But they are denied access to the case notes, even though these can be crucial in the courtroom.
Few parents have heard of the General Social Care Council, which has the power to remove workers from the Social Care Register. Since 2001 it has removed 17 people, mostly for inappropriate relationships with service users. There are 82,000 social workers on the register. Some of these seem to believe that they are above the law.
In February this year, a single mother called Louise Mason was reunited with two of her three children after a five-year battle against social services. It had started when she took her four-week-old baby to hospital. Doctors at first diagnosed a fairly common abdominal tumour. But they sought a second opinion in Belfast, where a doctor suspected that the injury might have been deliberate. Social services and police were called and her children were removed.
It took a year for the police to interview Mason under caution, and another year for her to be tried. During that time her access to her children was tightly curtailed. At worst she was allowed only an hour and a half with them once a month. Eventually a jury unanimously found her not guilty of causing grevious bodily harm. But social workers stuck to their own “guilty” verdict. They pressed on and served adoption papers. It took another two years for her to get two of her children back, with the help of the doctor who had made the original diagnosis. But the middle child had been allowed to see so little of her that he is likely to be adopted rather than returned.
What this case demonstrates is that parents can still lose their children even after being acquitted in the criminal courts. It is impossible to know how common this is. We know about this case only because the High Court judge who heard the appeal ordered that Louise Mason should be named.
It is not only social workers who are unaccountable. The secrecy of the family court system means that there is too little scrutiny of the psychiatrists and paediatricians who give evidence. A small but powerful group of radiologists, for example, believes that certain types of “greenstick” fracture are caused by parents twisting and wrenching a child's limbs - even if there are no bruises, cuts or broken bones. These fractures are often picked up when a child is taken to hospital with an unexplained head injury and given a full skeletal X-ray. One mother who took her baby to hospital with a nosebleed was accused of abuse after an X-ray showed three such fractures. There are now grave doubts about whether these painless fractures are caused by adults at all - yet courts still tend to consider them as absolute proof of abuse.
In 2003 Sally Clark, Trupti Patel and Angela Cannings were all cleared of murdering their babies. Lord Justice Judge declared that no one should go to prison again solely on the basis of expert witness evidence, and the criminal law was changed. But there have been no such changes in the family court system. “Expert” evidence almost always takes precedence over evidence from relatives and people who actually know the family.
The problem is compounded by the fact that judges are also acting in private. Unless they choose to make their judgments public there is no way of scrutinising the quality of those judgments.
Parts of the legal profession are concerned. In March 2005, a seminal report by the Constitutional Affairs Select Committee stated that “a greater degree of transparency is required in the family courts. An obvious move would be to allow the press and public into the family courts under appropriate reporting restrictions”. It advised that the restrictions on the discussion of their cases by parents should be removed entirely.
The Government launched a consultation but local authorities, the NSPCC and some family lawyers lobbied successfully against openness, citing the “welfare of the child”. In June 2007 Lord Falconer of Thoroton, the Lord Chancellor, stated that a survey of 200 children had shown that many would be anxious about the presence of the press in the family courts. He stated that he wished to concentrate on “improving the information coming out of family courts, rather than on who can go in”. This meant giving more information about how the court has reached its decision to the people involved, and encouraging more judges to make their (anonymised) judgments public. A year on, ministers cannot say whether a single shred more information has been forthcoming.
The oldest law of bureaucracies is “first protect ourselves”. The need to shed light into dark corners is made all the more pressing by some particularly pernicious allegations that parents find almost impossible to disprove - as I will describe tomorrow.
A Conspiracy of Silence
Allowing the family courts and social services to operate in secret allows miscarriages of justice without the possibility of redress
LEADING ARTICLE, The Times Online, July 7 2008
Every parent fears losing their child. Except for those who have hit rock bottom, having a son or daughter taken into care is a desperate experience. The social workers, medical experts and judges who decide to remove children sometimes save lives by doing so; sometimes they ruin them. That is a grave responsibility. It means that the child protection system should be accountable and transparent. Shockingly, it is neither.
As Camilla Cavendish reports in Times2 today, serious miscarriages of justice are occurring behind the closed doors of social services departments and family courts. The area of child protection is described as “a hole inside government”, with ministers unable even to say who is responsible. Too often, a “secret state” is at work that seems to assume that parents are guilty, and then obstructs them from establishing their innocence.
Some parents are unable to get copies of the evidence against them, including X-rays. Others are refused permission to call experts in their defence. Many fear that the professionals are distorting evidence and amplifying problems which should be solved by supporting families, rather than by tearing them apart.
It is impossible to know the extent to which miscarriages of justice may be occurring, because the whole system is shrouded in secrecy. Gagging orders on families and draconian reporting restrictions mean that very few cases come to light. Judges can choose to make their judgments public: but few do.
The authorities justify secrecy by arguing that the suffering of children caught in these fraught situations should not be made even worse by publicity. But secrecy also protects incompetence and wrongdoing. It should be quite possible to maintain the anonymity of children while also holding the professionals to account. Rape victims are anonymous in rape cases: that does not prevent police officers making statements in open court, nor the media reporting the evidence in full.
Family courts have a lower standard of proof than criminal courts. Yet they pass effective life sentences. If parents prove their innocence on appeal but their child has been adopted, they will never get that child back.
It is not the intention of this newspaper to demonise social workers, nor expert witnesses, nor judges. It is our intention to expose mistakes, and to create a system which can acknowledge that error is human. Many social workers feel that they can do no right, being criticised for negligence if they fail to spot abuse in time, then accused of being overzealous if parents are found innocent on appeal. That is understandable. They work in fraught situations. They need more support, and oversight. But the minority must not be allowed to act as though they were above the law.
This newspaper recently reported on the case of Louise Mason, whose children were kept from her for two years by social workers, despite her having been exonerated by a jury. Her third child will probably never be returned to her, because he is felt to have bonded so well in foster care.
The Times believes that these are matters of pressing public interest. Many of our readers have already urged us to do more. There is growing suspicion of the authorities which are meant to support families. The only way to quell those suspicions is to let the light in to the family courts.
From today it will be possible to go online (timesonline.co.uk/familycourts) and express support for openness. Please do. We will not be part of what has become, in effect, a conspiracy of silence against children who have no voice.
Family justice: what we can do to protect our children
A ten-point plan to make our courts system fairer
Camilla Cavendish, The Times Online, July 9 2008
Over the past three days The Times has set out some of the ways in which it fears the child protection system is being subverted by forces that are largely unaccountable. We believe that the Children Act has unintentionally handed enormous power to local authorities and experts, which some are using arbitrarily. And that secrecy keeps injustices from public view.
Opening up the system sounds easier than it is. Yet there are concerns that it could lead to paediatricians and other experts being vilified and refusing to do child protection work, social workers becoming demoralised and the exposure of families' private troubles. That journalists would not keep confidences. That reports by local papers might inadvertently add to the suffering of children by revealing their identities to people living near by.
These are valid concerns. I know two couples who have adopted children in very difficult circumstances. The natural parents of those children are quite unable to care for them, but they are also vengeful. Those couples and those children should not have to live in fear of being tracked down. They have made me think very carefully about the nuances of this. But I feel that these considerations can no longer outweigh the risk of grave injustices being perpetrated against children. And that we can put safeguards in place that will work.
When the Constitutional Affairs Select Committee heard evidence on this issue three years ago, many of the respondents seemed to assume that media access would inevitably hurt children. That is wrong. In the Court of Appeal almost all family law hearings are in public with reporting restrictions imposed. The press attends family proceedings in magistrates' courts, again with reporting restrictions. The press simply does not identify children when it is illegal to do so. Many of my articles may seem incomplete precisely because I am bending over backwards not to publish information that might identify the child.
The Australian and Canadian family court systems are open and transparent. Children's identities are protected but judgments are public, and so is the evidence on which they are based. That means that justice can be done, and be seen to be done. Their press apparently takes no interest at all in the majority of cases. This would surely be the same here.
The Constitutional Affairs Select Committee took the view that courts should be opened in all but exceptional circumstances. In July 2006, the Government seemed to agree. It published a consultation paper stating that greater openness was required in family court proceedings “so that people can understand, better scrutinise decisions and have greater confidence”. It proposed that the media should attend proceedings “on behalf of and for the benefit of the public”, with reporting restrictions to keep the parties anonymous. Almost a year later, the Lord Chancellor, Lord Falconer of Thoroton, rowed back, citing a survey of 200 children in which a slender majority had expressed anxiety about letting the media into the family courts. He said that openness would be improved “not by numbers or types of people going in to the courts, but by the amount and quality of information coming out of the courts”. A second consultation paper proposed keeping courts closed, but encouraged judges to release anonymised judgments.
That was a tragic loss of nerve. For there is no way that the growing lack of public confidence in the system can be solved by the publication of a bit more information that the authorities decide to let us see. Publishing an anonymised judgment without the evidence will not let ordinary citizens see what is being done in their name. We cannot tell, for example, whether witness X repeatedly goes beyond their remit or offers hearsay evidence. We cannot tell whether local authority B or judge C repeatedly gives X's evidence undue weight. If it was felt too risky to reveal their names, I would suggest that each expert witness could be given a unique code. That would deter the sensationalist hack from malice, but would enable the determined truth-seeker to track the behaviour of individuals over time, and hold them to account.
Many of the children's charities and lawyers who lobby against openness are trying to protect vulnerable people from damaging publicity. It is a tricky balancing act. But the clincher for me is this. One of the most draconian decisions the State makes is to deprive a child of a parent's love and care. Removing a child from its family is not simply a private matter. It is a decision that demands the very highest standards of accountability and transparency.
I believe that wholesale reforms are needed, which can be summed up in ten points:
1. Open family courts to the press in all but exceptional circumstances (as recommended by the Constitutional Affairs Select Committee).
2.Let any parent or carer accused of abuse call any witnesses they need in their defence. At the moment, they are routinely refused permission to do so.
3.Give automatic permission for parents who are refused legal aid to get a lay adviser to help them present their case. This is routinely refused.
4.Remove the restrictions that prevent families from talking about their case (as recommended by the Constitutional Affairs Select Committee).
5.Review the definition of “emotional abuse” across local authorities, to make sure that it cannot become a catch-all for overzealous officials.
6.Provide an automatic right for parents to receive copies of case conference notes and all evidence used against them in court, just as they would in a criminal trial.
7.Create an independent body to oversee the actions of social services, with proper sanctions. If that body is to be the General Social Care Council, make it easier for parents to go directly to that body rather than having to face delays from the local authority.
8.Let children in care waive their right to privacy if they wish to speak out. For gagging children is surely not consistent with promoting their welfare.
9.Restructure CAFCASS, the Family Court Advisory Service, from being an organisation that reports on the parents to the courts to one that actively promotes the parenting needs of children. The primary focus should cease to be assisting the court process. It should be diverting parents away from contested hearings into the making of parenting plans.
10.Review the recent legal aid cut-backs that are deterring lawyers from taking on these complex family cases. It is quite wrong that desperate parents are unable to find a lawyer to help them in their time of need.
Thank you for listening. As Jeremy Bentham said, where there is no publicity, there is no justice. If you support these ideas, please do go online, support our campaign and e-mail your MP.
Family justice: your word against theirs
In the third of our special articles, we look at the pernicious types of allegation that are almost impossible for parents to disprove
Camilla Cavendish, The Times Online, July 9 2008
I wrote on Monday about the many desperate parents who have app-roached me after losing their children to social services. One thing that they all have in common is shock at how quickly the system seems to decide against them, and at how doggedly it sticks to that view despite all evidence to the contrary. Some parents find that minor issues are magnified until the conclusions reached are out of all proportion. The opposite also seems to hold true: some children come to terrible harm because the system systematically underestimates the risk to them.
Why does this happen? Eileen Munro, a reader in social policy at the London School of Economics and the author of Effective Child Protection, says that “child protection work inevitably involves uncertainty, ambiguity and fallibility”. She believes that it is human nature to form a view based on first impressions, and stick to it. “This has a devastating impact in child protection work,” she says, “in that professionals hold on to their beliefs about a family despite new evidence that challenges them. It can be equally harmful whether they are over or underestimating the degree of the risk to the child. They may continue to believe parents are doing well, even though there are successive reports of the child's being distressed or injured. Innocent parents wrongly judged abusive can face the frightening experience of being unable to shake the professionals' conviction, however much counter-evidence they produce.”
The risk of groupthink makes it all the more important that decisions are transparent and open to review. We all know of the tragic deaths of children such as Victoria Climbié, who with hindsight should have been saved. We know much less about the tragedies of children wrongly separated from their families, because of the secrecy of the system.
There are several types of allegation that are almost impossible for parents to disprove. One is “emotional abuse”. You can see why the category exists. Ill-treatment comes in many forms, not all of which leave visible scars. But in that nebulous phrase lurks the potential for injustice. In the past ten years there has been a 50per cent increase in the number of parents or carers accused of “emotional abuse”. It now accounts for 21 per cent of all children registered as needing protection, up from 14 per cent in 1997. Yet the term has no strict definition in British law.
Emotional abuse is not “neglect”: that is a separate category. The Department of Health defines it as “persistent emotional ill-treatment ... [that] may involve conveying to children that they are worthless or inadequate ... and may feature age or developmentally inappropriate expectations being placed on children ... Some level of emotional abuse is involved in all types of illtreatment of a child, though it may occur alone.”
Local authorities interpret this in different ways. In Nottingham, emotional abuse is “an ingrained pattern of interaction ... which it is essential to observe and understand over time”. In Enfield it includes “swearing”, “conditional love” or “discriminatory remarks”. I have heard anecdotally of councils, including West Sussex and Cambridge, that almost never use the term. There are no statistics to confirm this. But it seems that child protection is as much of a postcode lottery as cancer screening.
Expert medical evidence is also notoriously difficult to disprove, even where there is no circumstantial evidence. Lord Justice Judge (who was named as the next Lord Chief Justice yesterday) has warned against an “over-dogmatic” approach in the criminal courts, when we are “still at the frontiers of knowledge”. But it is less clear how family judges should treat syndromes such as Munchausen's syndrome by proxy (MSbP).
Since the discrediting of Professor Sir Roy Meadow, who first defined it, Munchausen's has been relabelled as “fabricated or induced illness”. This is a perverse disorder in which an adult invents or deliberately creates a child's illness to draw attention to himself or herself. Even the experts agree that Munchausen's is rare, likely to affect no more than 50 people a year. But campaigners fear that far more people are being accused of it. For the traits of the Munchausen mother are broad enough to cast suspicion on many whose children are genuinely ill. They include a reluctance to leave the sick child's side, familiarity with medical terms and, most devastating, the denial of accus-ations of abuse.
Two years ago, a group of MPs with falsely accused constituents asked the Government how many people nationally were accused of having MSbP. The Government replied that it did not collect such data - even though Department of Health guidelines tell charity workers, nursery nurses, teachers and even pharmacists to look out for the condition.
Last year, social workers in Hexham told a pregnant student at Edinburgh University that she was in danger of developing MSbP when her baby was born, so they were thinking of removing the baby at birth. The student, Fran Lyon, had developed self-harming and eating disorders seven years earlier, after being raped. But these are disorders from which she has fully recovered. The psychiatrist who treated her as a teenager states that she poses no harm to her child. So does another psychiatrist, who knows Lyon through her charity work. The only person who seems to have entertained the idea that she could develop MSbP is a paediatrician who has never met her. But social workers have given his evidence more weight. Lyon fled to Europe last year, unable to trust her own country, and is now in a legal limbo.
To err is human. To refuse to acknowledge that is inhumane. No professional can be right all the time, particularly in this fraught territory. That is why wholesale reforms are needed - as I will explain tomorrow.
Justice can't be done in secret. And here's why
We will always try to twist the evidence to fit our theories. Especially when we are wrong
Daniel Finkelstein, The Times Online, July 9 2008
Have you ever heard of “wilding”? Can you remember when you heard of it? I want to refresh your memory.
This week in Times2, my colleague Camilla Cavendish has been telling some terrible stories of children taken from their parents without good reason and adopted against their will, never to be returned. And all in secret. Not a word to be published. I think that the story of wilding will help you to see why the secrecy is a scandal.
On April 19, 1989, a young woman jogging in Central Park, New York, was attacked. That understates it. She was brutally beaten and raped. Her terrible injuries left doctors convinced she would die. Eventually she pulled through, although without a memory of the attack.
The case of the Central Park Jogger became a symbol of a city out of control. The story became even bigger when the first arrests were made. New York police rounded up a gang of young African-Americans who quickly confessed. Apparently they liked to attack strangers, regarding their frenzied assaults as a form of entertainment. Wilding, they called it, and the word became famous.
Now I am going to tell you something you may not know. Certainly I didn't until I stumbled across it a couple of days ago. About ten years after being sentenced for his part in the wilding, Kharey Wise met a man in prison, another New York rapist, called Matias Reyes. And the more Reyes got to think about it the sorrier he felt for his new friend. For Reyes knew something that the police and the courts did not. The wilding story was nonsense. The confessions were coerced, as the young men had claimed for years. How did he know it? Because he, Matias Reyes, had really raped and beaten the Central Park Jogger.
What follows is the shocking bit - shocking but instructive. The moment that Reyes confessed, it was clear that he was indeed guilty. His DNA was linked to the rape, and the chance that the link was mistaken was one in six billion. The wilding teenagers had left no DNA. And, when you came to look at it, their confessions didn't really add up. They weren't consistent with each other or with the facts. The District Attorney concluded that the convictions must be overturned and there can't be much doubt that he was right.
Yet the prosecution lawyer in the original case refused to accept this. She was furious. She stridently opposed the finding of the DA. So did the New York Police Department. They convened a panel that concluded that the police had done nothing wrong and that, even if Reyes was guilty, he may not have acted alone. They concluded, lamely, that the teens must have started the assault with Reyes taking his opportunity later.
Even though the teens were eventually freed, this sort of behaviour is typical. In this country we should know this because we have had the case of Timothy Evans, whose wife and child were found dead at 10 Rillington Place, Notting Hill, West London. Evans was hanged in 1950, found guilty of murdering the child, a crime he blamed on his fellow tenant John Christie.
Then in 1953, other bodies were found at Rillington Place - in the garden and sealed behind wallpaper. Christie was a mass murderer. The evidence that Evans had been executed in error was overwhelming, but the legal Establishment refused to yield to it. There was silence at first. Then there was a review that concluded, preposterously, that he murdered his wife but not the baby. This paved the way to a pardon 15 years after Evans's death. His conviction, obviously wrongful, has never been overturned.
Why does this happen? Why do people refuse to accept what simply has to be true? Social psychologists use a term to describe this behaviour that you may have come across - it is called cognitive dissonance. This is the tension that arises when a person holds two attitudes that are psychologically inconsistent. And it is tension that is hard to live with, tension that simply has to be resolved.
So what do you do? A brilliant new book by Carol Tavris and Elliot Aronson - Mistakes Were Made, but not by Me - explains. You believe that you are a good person, say, yet you know you have done a bad thing. There is dissonance. You resolve it by deciding that the bad thing was not that bad. The worse your behaviour, the harder you will try to twist it around in your head until you can reconcile it with your view of yourself.
It is commonly thought that we have theories and that they are tested by the facts. The opposite is true. We have theories and then we strive mightily to fit the facts into them, ignoring those that don't quite work or reinterpreting them if we have to. The more we have at stake emotionally, the more pressing this task becomes.
Cognitive disssonance explains a great deal. Take Gordon Brown. Some people believe that all the strife, all the difficulties he is encountering may lead him to give up. Cognitive dissonance suggests that the more trouble he is in, the more difficult things get, the harder he will work to convince himself that it is all worthwhile and that he is indispensable. His troubles make him less likely to resign, not more.
Now look at the Central Park Jogger case. People suffered because mistakes were made. The police and the prosecution, believing themselves to be good people doing good work, could not reconcile this suffering with their view of themselves. So they insisted, they had to insist, that the teenagers were guilty. The facts challenged their theory of themselves, so the facts had to be reinterpreted. The Evans case is similar. The legal Establishment regarded itself as dispensing justice and the death of an innocent man didn't fit. It became essential that he not be innocent, whatever the evidence.
When groups - police, medics, politicians, social workers, the Family Court apparatus - get together, convinced of their own righteousness, the facts (like Timothy Evans) can go hang. They are certain that they are right, certain they are just and often, you know, they really are. But when they are not, they will never ever admit it, digging themselves in more and more deeply.
A local authority that has taken your children away can never admit it did so wrongly. And every fact that shows that it did needs to be twisted around until it shows that it didn't. That is what is happening all the time, behind the close doors of our Family Courts, beyond scrutiny.
There's only one way out. That is to allow others, those without a stake in the righteousness of anyone, to shine a light on proceedings. Not to do so is inexcusable. It is an affront to justice and the rule of law.
Europe to begin investigation of secrecy in family courts
Sam Coates and Camilla Cavendish, The Times Online, July 10 2008
Britain faces an investigation by Europe into secrecy in family courts, amid growing political pressure to overhaul the system.
The Council of Europe has stepped in after allegations that gagging laws designed to protect the rights of children are allowing miscarriages of justice and children to be removed unnecessarily from their parents.
The Times has been running a series of articles this week about the consequences of the system that keeps reporters and the public out of many family court hearings and obstructs people from seeing evidence against them or obtaining copies of judgments. Opponents of the system say that judges can be too ready to side with social workers and experts who want a child removed but whose evidence is rarely made public.
Family courts in England and Wales hear 400,000 cases a year, mostly divorces and child custody cases. In about 20,000 cases a year, however, local councils apply to remove children from parents on the ground that parents are abusive or neglectful.
The council’s investigation was initiated by Paul Rowen, the Liberal Democrat MP who is one of Britain’s representatives, and will begin in September. It could involve hearings by a committee that will take evidence and be able to visit courts.
It will come at a critical time for campaigners who are fighting to open up the system. The Government has promised to respond to a long-delayed consultation after the summer.
Three years ago the Constitutional Affairs Select Committee said that greater transparency was required and restrictions on the discussion of their cases by parents should be removed entirely.
Moves to open the courts up were quashed by Lord Falconer of Thoroton in one of his final acts as Lord Chancellor in June 2007. He stated that a survey of 200 children had shown that many would be anxious about the presence of the press in the family courts.
Evidence taken by the Children and Schools Select Committee last month heard how pregnant women who missed antenatal classes were being threatened with referral to social services.
Justice for Families
An enormous response to the articles in The Times highlights widespread concern over the secrecy that shrouds the family courts
Leading Article, The Times Online, July 12 2008
It is five days since The Times launched its campaign to open up the family courts and make social services more accountable for the removal of children from their families. The enormous response so far has bolstered our view that this is a vital debate. Many parents, but also lawyers, social workers and members of the medical profession have written in to sound the alarm about different aspects of the child protection system.
Not everyone supports our position. One common criticism was put eloquently by Sir Mark Potter, Britain's most-senior family judge, in The Times yesterday. He argued that the family courts are not “secret”, but “private”, operating in what he described as “a minefield of complexity and emotion”. And that most families desire privacy, because family hearings expose deeply personal details.
This is the same argument that Lord Falconer of Thoroton used last year to explain why the Government rejected the recommendations of the Constitutional Affairs Select Committee for opening the family courts and allowing parents to talk about their cases. This week Bridget Prentice, Minister of Justice, has said that “the right of the public to know what is happening has to be balanced with a child's right to privacy”. But the two should not be mutually exclusive. With proper reporting restrictions in place, it is perfectly possible to have accountability and to keep a child's details confidential. That is what happens in Canada and Australia, where the courts are open. It is also the case in the Court of Appeal, where most family hearings are held in public.
There is something very wrong when parents are gagged to “protect” their children, while those same children are routinely pictured and named in adoption magazines. Removing a child from his or her family is not just a private matter. It is a matter for all society. That is why the Council of Europe has taken the extraordinary step this week of launching an investigation into the secrecy of family law in England and Wales.
Sir Mark Potter and many other judges support the Government's proposal that all judgments should be made public in anonymised form, in cases where children are removed. That is a welcome step. But it does not go far enough. Without access to the evidence, it will be impossible to discover whether certain expert witnesses or social workers are making errors repeatedly. The system should meet the very highest standards of accountability, given that its decisions can destroy or save lives.
The Government has committed this week to publishing new proposals after the summer. This is a welcome end to the nine-month limbo since the deadline for its last consultation. But bold proposals are needed to reform a system that is in disarray. These include restructuring Cafcass, the Family Court Advisory Service, to reviewing the cutbacks in legal aid. Parents should have an automatic right to receive copies of the evidence used against them in court, just as they would in a criminal trial. It is outrageous that this point should have to be made at all. A large number of readers have told The Times this week that they have been denied access to papers that they need to mount an appeal. It is a matter of deep concern that parents accused of child abuse have fewer rights than those accused of murder.
Some of those who work in child protection are understandably upset at what they see as an attack on their competence, driven by aggrieved parents who give only one side of the story. But the growing suspicion of the authorities who are meant to support families will not be quelled by continuing to suppress information. We need both sides of the story to be told. That is why The Times will continue to shine as much light as possible on these issues in the coming weeks.
A moving response to our family justice campaign
The Times call for an end to secrecy has produced a huge reaction - except from the man who could change it
Camilla Cavendish, The Times Online, July 17 2008
I am awed by the response to the family justice campaign that The Times launched last week. So many readers have e-mailed their MPs that I am getting calls from all three main parties. Several MPs have also raised their private concerns about how their own local authorities behave. It is uplifting to see democracy in action.
There are chinks of light already. Thoughtful people on all sides of the argument seem to accept that some degree of change is needed. Sir Mark Potter, President of the Family Division, gave broad but qualified support to many of our proposed reforms, although he argues strongly that the courts are private, not secret, and that families want them that way. Bridget Prentice, the Justice Minister, has announced that the Government will finally publish new proposals this autumn. Many social workers restrained the urge to hurl rotten eggs and supported our call for openness, while saying that the system is not as Kafkaesque as I fear.
Bill McKittrick, a social worker for 35 years and director of Bristol Social Services for ten, wrote to say that openness is a moral imperative in care proceedings where, he tells me, “lawyers get rich, social workers check and check, but children and parents get lost”. He says that “groupthink” can easily take hold. “The more people involved in a decision, the more dangerous the decisions are.” But he still thinks that mature professionals would get a better press if they gave their side of the story, being honest about the uncertainties involved in decisions, rather than trotting out the mantra of “never apologise, never explain”.
Two main arguments have been made against The Times's position. First, that the family courts should not be open to the press because the parents and children involved in cases dread being identified. Sir Mark, the heads of the Children and Family Court Advisory and Support Service (Cafcass), the Royal College of Paediatricians and Child Health and Family Justice Council have all made this point. It is understandable that families don't want the neighbours to know highly personal details.
The same argument was used by Lord Falconer of Thoroton last year to reject the recommendation of the Constitutional Affairs Select Committee, that the family courts should be open and parents no longer gagged. It is prompted by a visceral dislike of the press, which I can partly understand. Yet it is overdone. I see from the inside how concerned the press is to remain within the law. In rape cases and family appeals, reporting restrictions have successfully kept names secret while allowing evidence to be reported.
The halfway house proposed by many, including the Government, is to publish all judgments, but made anonymous. That would be a good step. But without access to the underlying evidence, it will be impossible to discover whether experts or social workers are making repeated errors. The public do not need to name names for justice to be done. But they do need to see the evidence on which people are effectively convicted.
The second criticism is that professionals do their job properly, and we critics do not understand the complexity they have to deal with. The Family Justice Council states that “the courts do not shrink from exposing poor practice by social workers and questionable medical evidence”. I cannot agree. In the past few years, Court of Appeal judges have made blistering criticisms of lower courts for relying on shockingly poor statements from social workers and experts. Family court judges can rely heavily on such people, in cases where there is no circumstantial evidence.
It seems Orwellian to ask us to trust people who are not subject to scrutiny to make correct decisions about cases which we are repeatedly told are too complex for us to understand. Years can pass between children being taken into care and a successful appeal. Those are formative years in which children are deprived of their parents, and sometimes adopted before an appeal is even heard.
The Royal College of Paediatricians gives warning that doctors will stop giving evidence for fear of vilification in the media. That very real fear is made worse becuase so many paediatricians still support Professor Sir Roy Meadow, who went beyond his remit, and gave evidence that led to the jailing of innocent people. If innocent experts do live in fear then that is entirely the media's fault, and we must correct that. But I do not believe that they would have to.
Intriguingly, only one person challenged our view that the system is unaccountable. That was Sir Rodney Brooke, chair of the General Social Care Council. I have seen no evidence that the GSCC has disciplined a single social worker denounced by appeal court judges in the past few years. But I hope to be corrected. Nor did any one of the eminent bodies who wrote to us deny that miscarriages of justice occur. Some of the glib references have made miscarriages of justice sound like a standard occupational hazard. There are 550,000 referrals to social services every year. It makes the Birmingham Six fade by comparison.
Yesterday, Frank Lockyer wrote to point out that the authorities have closed ranks in response to our campaign. “The agencies defend themselves by persisting that things are done as they expect, rather than as they are,” he said. Mr Lockyer should know. His daughter was Sally Clark, jailed for killing two of her sons until her conviction was quashed, and who has since died. Mr Lockyer knows that his daughter was exonerated only because she could protest her innocence in public. In the family courts, gagging orders make that impossible. We cannot know how many Sally Clarks have lost their children. The volume of mail on this topic has been hugely welcome. Only one person has remained silent. Jack Straw, the Secretary of State for Justice, holds the power to change the system for the better. It would be good to know what he is going to do about it.
Times wins ruling over secrecy of family court
Rosemary Bennett, The Times Online, July 22 2008
Details of private family court proceedings that led to a mother fleeing the country with her son after he was placed in foster care have been disclosed after legal action by The Times.
The highly unusual ruling allows the publication of undisclosed details of the case. The boy’s stepfather was sent to prison for 16 months for helping the mother to remove him from care and flee abroad.
She has since had another baby, the couple’s first child. The stepfather has been released from prison but is forbidden to contact his wife.
The Times fought to publish more information after an outcry from readers when the case was reported by Camilla Cavendish . She highlighted the perceived secrecy of family courts and the lack of scrutiny of social workers, who have sweeping powers to remove children from their parents. Times readers were particularly outraged that the stepfather served a longer sentence than many muggers.
Sir Mark Potter, the President of the Family Division, dismissed Medway Council’s argument that it should not be named publicly in case it led to identification of the child, known as S. With more than 300 children in local authority care in the Kent borough, he said that this was unlikely.
The judge accepted that there was considerable public interest and that reporting a fuller story would “enable the public to form its own view whether the actions of the [Medway] council or the decisions of the court to date have been fairly characterised”.
His summary of the care proceedings provides an insight into the secretive family courts, where decisions to remove children from their parents’ care are made every day. The Times can report for the first time that social workers became involved shortly before the mother and father split up. In the ensuing care proceedings the mother made claims of domestic violence that were “heavily disputed” by the father. The judge found that, while the mother had exaggerated many claims, the father had on occasion acted “in an aggressive and intimidating manner, which placed S at risk of harm”. The mother was found to have a “tendency to play the role of victim”.
Judge Cox, the family court judge, concluded that S was “suffering emotional harm due to the conflict between the parents”. She ordered that S be taken into foster care until matters improved. There were also concerns about living conditions, with the family home described as “like a building site”. At a later hearing the judge said that she was troubled that S was keeping secrets with his mother, who was manipulative.
In a final care order the court ruled that the boy would stay in foster care and his mother was given a list of conditions to meet before he could be returned. These included weekly counselling, a move to secure accommodation and a settled lifestyle. She was also not allowed to discuss with her son the possibility of his returning to her care without social workers’ permission. Contact with her son would be reviewed and would depend on her “promotion” of his foster placement. She also had to cooperate with “counselling with S concerning the father’s gender identity issues”.
A final hearing on the case was due to take place last October. A social workers’ report said that there had been no significant improvement in the mother’s “insight/approach” towards S. Although the mother had moved house and remarried, the social workers noted that she was still challenging the care proceedings: “Significant improvements are not possible while the mother continues to be of the opinion that much of the previous judgments has been wrong or exaggerated,” they wrote.
They concluded that adoption would give S “the best possible opportunity for permanency”.
At 4am on September 11 last year, the mother, assisted by M, her new husband, took the child from his foster home and drove to France. When M returned two days later he was arrested and charged with abduction.
John Hemming, a Liberal Democrat MP campaigning for more openness in family courts, said: “I am pleased that Sir Mark has recognised the public interest in people understanding that the reasonings of the family court outweighs the need for the activities of practitioners to be kept secret.”