Families Denied Justice
If a friend of Lord Falconer can sort out a
scandal in the justice system, three cheers for cronyism
Nick Cohen
Sunday January 16,
2005
The Observer
The iron law of all bureaucracies is 'first we protect ourselves'. In an ideal
world they would look to free themselves from scrutiny by operating under the
cover of secrecy. They would strive to deflect criticism by maintaining the
pretence that it was in the public interest to operate in absolute privacy.
If they could go further
they would then make a breach of their secrecy a crime punishable with all
penalties up to and including imprisonment. In an ideal world all bureaucracies
would want to achieve the state of perfect irresponsibility achieved by the
Family Division of the High Court.
I know it's only January
and it's rash to make predictions, but last week there was a strong contender
for the award for phoniest media commotion of the year when Lord Falconer, the
Lord Chancellor, announced that he wanted to let a little air into the system by
appointing an old friend, Sir Mark Potter, as the new president of the Family
Division.
The cry of 'cronyism'
was yowled across Fleet Street. Shocked journalists discovered that Sir Mark had
no experience of family law. They reported that Dame Elizabeth Butler-Sloss, the
retiring president, had recommended that an insider be given the job, and Her
Ladyship's wishes had been ignored. It wasn't only Dame Elizabeth who was upset.
Other family judges resented the appointment and were furious that the job
hadn't gone to one of their own.
The charge-sheet
lengthened as the outrage grew, and no one stopped to wonder who in their right
mind would want to keep the courts the way they are.
If Charles Dickens were around today, he'd
be writing The Family Division. You might think that as a British citizen you
are innocent until proved guilty beyond reasonable doubt. And so you are when
you are charged with a criminal offence.
But if you are ever unlucky enough to be
faced with the prospect of having your child taken into care - a far worse
punishment than a jail term for most parents - you will find that the state need
only prove that you are guilty on the balance of probabilities.
You might think that it's a basic tradition
of the English law that justice must not only be done but be seen to be done and
that secret justice is no justice at all. Not so in the Family Division. Enter
into its courts and you enter a British Guantanamo where basic traditions no
longer apply.
Like the sexist police officer who will
arrest the thug assaulting a stranger in the street but dismiss a case of
wife-beating as 'just a domestic', the law applies lower and shabbier standards
to families than criminals.
It's not merely that the cases are held in
secret. Nothing about them - court papers, expert reports, statements from
witnesses - can be made public without the permission of the court. The
inevitable consequence of secrecy is conspiracy theory. The victims of the
system see scheming cabals everywhere. Fathers 4 Justice may be an unpleasant
group whose members destroy a plausible case with their misogyny and violence.
But when they complain about a feminist plot to make sure that the system is
'stuffed from head to toe with ideological dinosaurs who believe that fathers
are dispensable' it's possible to feel a touch of sympathy for them.
Why shouldn't they believe that justice is
a racket when the checks and balances aren't there?
Far worse than the conspiracy theorists
without are the fantasists within. Like all closed systems, family law is prone
to attacks of collective mania. Delusions sweep the minds of otherwise sane men
and women because there are no sceptical outsiders to bring them up short. In
the 1980s and 1990s, the modern witch-crazes of satanic and ritual abuse swept
through social service departments and the courts. They died down only to be
replaced by Munchausen's syndrome by proxy, an impressively difficult name for a
criminally-vague theory, which purported to explain otherwise inexplicable
deaths and injuries by asserting that parents were seeking attention by harming
their children.
After the scandalous miscarriages of
justice against Sally Clark, Angela Cannings and Trupti Patel, Munchausen's
syndrome by proxy should have been finished. But a list of 40 cases produced by
the Telegraph found that parents were still suffering in the Family Division
courts. Readers said that when their children had accidents or brittle bones or
undiagnosed illnesses they were accused of shaking them, hitting them or seeking
attention in the Munchausen manner. One case involved a couple in Essex who had
taken the baby to hospital because he had a bump on his head. They were accused
of attacking him. They managed to find medical evidence which proved their
innocence, but it was too late: the boy had been adopted. No appeal. No redress.
The child was lost.
I'd love to be able to check out the story.
But anyone who gave me information would be in contempt of court - and I'd be in
contempt for seeking answers.
One story I can tell you about is that of
Mrs B. In all seriousness and solemnity she was accused of administering 'some
unidentified infected substance' which caused her daughter to have 'potentially
life-threatening' fits in a Kent hospital. The mother was branded as yet another
Munchausen attention-seeker and had her daughter taken from her. Sarah Harman,
the mother's solicitor, was furious, and you can't blame her for losing her
temper. Even the tamest lawyer would rage that the Family Division was off with
the fairies again if she saw a client lose a child for unspecific and
uncontestable charge of administering some unidentified infected substance.
She saw the chance to act when Sir Roy
Meadow, the man who coined the term Munchausen's syndrome by proxy, was
discredited. Harriet Harman, the solicitor general, announced an inquiry into
Munchausen cases, and, as luck would have it, Sarah was Harriet's sister. She
sent her details of the case, and Harriet Harman passed them onto Margaret
Hodge. Mother and solicitor also spoke to journalists without identifying the
child.
For breaking the omertá of the Family
Division, Sarah Harman was hauled before a Family Division judge, Mr Justice
Munby. He ruled that the passing of details of the case to Harriet Harman and
Margaret Hodge were contempt's of court. He said she was guilty of 'suppres sio
veri and suggestio falsi', which is fighting talk even for non-Latin speakers,
and she now faces potentially ruinous disciplinary action.
Munby's ruling may, however, turn out to be
double-edged: one of those judgments which is fine in theory but preposterous in
practice. Ever since secrecy was imposed on the family courts in 1960,
councillors and MPs have found that they can't do their democratic duty and
check out their constituents' stories of heart-rending abuses of power.
The most notorious incident was during the
Rochdale witch craze when children were
dragged from their homes by social workers convinced they had uncovered a coven
of Lancashire devil worshippers.
Parents went to their councillors, who could do nothing because they had been
warned that it was illegal to ask what was going on.
What Munby has done is take the absurdity
to a new level. His ruling meant that it was a contempt of court to tell the
solicitor general, who is responsible for the honest functioning of the legal
system, and the Minister for Children, who is responsible for the welfare of
children, about an alleged miscarriage of justice involving a child.
Before readers complain that social workers
have a terrible job and are damned if they do intervene and damned if they
don't, I must say that I agree. I should add too that family judges are good men
and women who are asked to make decisions which can't possibly satisfy everyone.
For all that, a rotten system can corrupt, and cheeringly there are signs
everywhere that its rottenness is being noticed. Sarah Harman is pointing out
that Canada and Australia operate open courts while protecting the welfare of
the child. They stick by principles of English law, which English judges have
abandoned. MPs on the Commons Constitutional Affairs Committee are getting ready
to recommend greater openness and even Butler-Sloss and Munby are accepting that
reform is needed.
If to make reform work
Lord Falconer has to parachute in a crony, well three cheers for cronyism. Let's
have more of it. If Dame Elizabeth doesn't like it, that's good. If Family
Division judges are resentful, that's better. We should urge Lord Falconer to
cram the bench with lawyers who haven't been contaminated by decades of secrecy.
If he runs out of legal cronies, there's always his milkman, postman, lady who
does and teenage children. Anything and anyone will be better than the status
quo.
