Secret Justice, Private Hell

Family courts are putting parents on trial for their children. Instead of helping to keep families together, these secretive tribunals are breaking them apart—often for trivial reasons

Every year more than 50,000 children in England and Wales have their fates decided by the family courts. When divorcing parents cannot agree on how the children they produced together should be looked after, a judge from the family courts will adjudicate and enforce a particular way of dividing those children’s time between their two parents. Equally, when officers of the state (usually social workers) believe that children’s interests would be better served by being taken away from their biological parents and given either to a new couple to adopt, or handed over to the care of a state-run institution, it again requires a decision from a judge from the family courts, a decision which will be irrevocable.

The family courts therefore wield enormous power. Their capacity to make or break lives is far greater than that possessed by the ordinary criminal courts. People can recover from prison. But most children who are forced by a decision from a family-court judge to lose contact with one or both parents, or who are made to enter the nightmare that many state-run care homes have become, are permanently damaged by the experience. For a parent, there is prob­ably no greater catastrophe than to be forced to relinquish care of and contact with your child. For children, the long-term consequences can be psychologically disfiguring to a degree which it is difficult for anyone who has not gone through the experience to understand.

Deciding the fate of more than 50,000 children is also a critical area of social policy. Children who are placed in state-run care homes, for example, are much more likely to end up as criminals, as drug addicts and without jobs. Every year about 20,000 children are placed in such care homes; most of them will end up in prison or dependent on state hand-outs.

Given the colossal consequences of the decisions that they make, you would expect that the operation of the family courts would be matched by a determination to see that the power they wield is wisely, or at least properly, exercised — as the Government correctly insists: “the interests of the child are paramount”.

Yet even a cursory examination of the workings of the family courts reveals that almost no attempt at all is made to see that the family courts operate in a reasonably just, effective and sensible way.

There are several barriers in the way of any attempt to discover whether or not the decisions made are in fact in the best interests of the child. The first and the most formidable is that the family courts operate in secret. The blanket that covers what takes place in the family courts is so impenetrable that there is no systematic research about the effects of their decisions: no one except the judge, and the affected family (occasionally not even the family) is allowed to read the secret court documents.

It takes a knowledgeable, and rich, parent to challenge a decision, and thereby get it scrutinised by a judge in a higher court: most parents who have their children taken away are neither rich nor knowledge­able about the law. The inevitable result is that most decisions handed down by the family courts escape any kind of scrutiny at all. It is virtually impossible even to identify when there has been an unjust decision, never mind to put it right.

What evidence there is, however, points towards one conclusion: the system, and the law which underlies it, does not protect and promote the interests of many of the children with whom it deals.

One example is the extent to which it furthers the formation of single-parent families. Every year tens of thousands of children in England and Wales have parents who fight in court about how custody should be divided. A very large proportion of those children will lose contact with one of their parents within two years. Family law and the courts which implement it are largely responsible for that result.

It is a startling fact that there is no presumption in law in favour of ensuring that children have reasonable contact with both of their parents. As a consequence, any consideration, no matter how trivial, can, in disputed custody cases, be used to stop all material contact with the non-resident parent: if the resident parent sets contact with the non-resident at a pitifully low level, it can take years of litigation to get permission from the courts for the first overnight stay. No wonder that many thousands of non-resident parents give up the struggle, losing all meaningful contact with their children. One wholly predictable result is that thousands of de facto one-parent families are created every year — with incalculable social conseq­uences, almost all of them bad.

In a perfect example of the effects of lack of scrutiny of family courts, ministers are unaware of what is happening. The astonishing truth is that they do not know what the law is, or how it operates. All of the recent ministers “for the family” have stated on the record that “the current legal position” is that “after separation, both parents should have a meaningful relationship with their children, providing it is safe”. But in fact, that is not the current legal position. The law only states that the decision should be made “in the best interests of the child”. Nowhere in all the thousands of pages of official “advice” on how contact between children and divorced or divorcing parents should be managed is there a single sentence which defines in a meaningful way what protecting and promoting “the best interests of the child” actually involves. There is certainly nothing that states that meaningful contact with both parents is in the best interests of the child. So judges in the family courts interpret the law, quite rightly, as not requiring meaningful contact with both parents.

The situation when the state intervenes to take children away from their biological parents is even worse.

Local authorities are aware that they frequently fail to protect children who are being viciously abused: Victoria Climbié, murdered by the couple charged with her care under the noses of social services officers who failed to identify what was going wrong, is a notorious example. Their response has been to expand the signs which might indicate abuse. But that expansion of the “tell-tale signs” has merely made social workers and others more likely to take children from their parents: it has not made them more likely to take away children who are actually suffering horrible maltreatment.

Agents of the state who want to take children from their parents have to prove to a judge that there will be “significant harm” to the child if he or she is left with his biological parents. Whether that test is effective in ensuring that children are removed only when it is absolutely necessary depends on how the notion of “significant harm” is understood. Once again, the problem is that the critical term has no meaningful definition in the legislation or in the hundreds of pages of advice which is meant to help interpret it.

“Significant harm” has come to mean more or less whatever social workers want it to mean. For example, “significant harm” now includes “emotional abuse”. Although “emotional abuse” is defined in Government guidance as “the persistent emotional ill treatment of a child such as to cause severe and persistent effects on the child’s emotional development”, it is left vague as to what sorts of treatment will cause such “severe and persistent effects”. Social workers and psychologists have interpreted “emotional abuse” so widely that it now includes everything from being too indulgent with a child to not being indulgent enough, from moving your body in the “wrong” way in front of your children to feeding them too many grapes (each of these examples is from reports by social workers alleging that parents were guilty of “emotional abuse”). It is not even necessary to show that a child has been damaged in any way at all. All that is necessary is the claim that, at some point in the future, the child might suffer emotional damage — a claim which is of course impossible for any parent to disprove.

But surely, you object, the courts will not uphold a local authority’s claim to take a child from its parents on so flimsy a basis as “emotional abuse”? Yet that is exactly what many of them do. More children were placed on the “at risk” register on grounds of suspected “emotional abuse” than for any other possible harm except “neglect” — a category which at least is capable of reasonably objective definition. Being placed on the “at risk” register is the first stage to being taken into care. And although the statistics are not available (they are secret or not kept at all), it is a good bet that far more children are being taken into care because they are judged to be subjects of “emotional abuse” than because they are thought to be the victims of physical or sexual abuse.

Judges are almost never in a position to challenge the claims of social service officials that a child is being “significantly harmed” by his or her biological parents. The legislation leaves it up to social workers, and the “experts” they can get to support their claims, to provide the definition of what “significant harm” amounts to. Such allegations are not tested in court, for the simple reason that there is no procedure available to test them. If there were, the family courts would grind to a halt: it would take days of evidence to get through the many hundreds of pages that social services submit in support of their claims.

So allegations from social workers that a child is being emotionally abused are usually just accepted as fact by the family courts. I have met some parents who have been victims of this process, and read the judgments which led to their losing their children (committing a criminal offence as I did so). It is a profoundly shocking ­experience.

The way family courts operate comes into public view only on very rare occasions. One such occasion involves a judgment delivered on 16 March 2006 by Mr Justice McFarlane, one of the 14 High Court judges of the Family Division, which, very unusually, he made public. It gives a graphic picture of what can happen.

A mother asked social services for help in looking after her nine-year-old daughter who had been displaying some “modest behavioural difficulties”. The mother also wanted a doctor to examine her daughter because she had been complaining of a tummy ache. The result of social services’ intervention was that, without consulting the girl’s parents, they obtained an Emergency Protection Order. Uniformed policemen arrived and forcibly took the child away. The child was prevented from seeing her parents for 14 months as a consequence. During that time she was placed in foster care. Her foster carers changed repeatedly. There was every indication that the council would not allow the girl ever to see her parents again. It was only when her parents managed to appeal to the High Court, and Mr Justice McFarlane was able to scrutinise the evidence, or rather the lack of it, that they were able to get the care order overturned and to get their child back.

Judge McFarlane patiently identified the “multiple failures” of both the social services and the courts in this case. He noted that when social services applied to the courts for an Emergency Protection Order [EPO] “every single one of the [13] elements of the team manager’s evidence was misleading, incomplete or wrong”. He added that “the picture given to the magistrates by the team manager was … so seriously distorted that it is likely to have led the bench to have a totally erroneous view of the issues in this case”.

The court was supposed to scrutinise that picture. It failed to do so. It made no attempt at all to test social services’ claims about the dangers that leaving the child with its parents would pose. When the court upheld the request for an EPO, they did not give any reasons for the decision. The bench simply endorsed the claims made by social services officials. Yet when Mr Justice McFarlane asked them “what was the imminent danger that [the child] faced” on the afternoon she was taken into care, he found that “not one of them could give a satisfactory reply. The team manager could only repeatedly assert, ‘I could not say that the child was 100 per cent safe in that household’.” As Mr Justice McFarlane pointed out, this is “nothing like the test needed to justify an EPO”, not least because it is a test which could justify taking every child in the country from its parents — no home anywhere is “100 per cent safe”. But the court accepted it as appropriate grounds on which to remove a nine-year-old child from her parents.

Even after “all of the faults of the social workers’ presentation had been laid bare”, the local authority continued to insist that the EPO application was “properly presented” — a claim Mr Justice McFarlane found “truly astounding”. A year after the poor child had been taken away from her parents, the authority based its case on the need to keep her away from them “solely on allegations of emotional abuse”.

Although, in his judgment, Mr Justice McFarlane insisted that he did not think that appalling behaviour of this kind is frequent amongst social services or the family courts, the most disturbing aspect of his analysis is the degree to which it suggests that it is extremely common. None of the social services officials involved seem to have been aware of doing anything unusual or exceptional. They did not even admit that their behaviour was below acceptable standards. Similarly, the court which rubber-stamped their behaviour, and authorised the removal of the child, proceeded in what its members clearly thought was a completely routine fashion. There is no indication at all that they believed they were acting in any other than a completely acceptable way.

We simply do not know how many cases of child removal would, if competently examined in the manner of Mr Justice McFarlane, reveal comparably appalling behaviour, for most are never subject to this kind of examination. There are certainly some, as I know, because I have seen the documents which identify them. But there could be hundreds or there could be thousands of examples of needless and wrongful removals of children from their parents every year. It is a staggering indication of the failure of the system that it is impossible to discover the truth on so critically important a matter.

A recent Court of Appeal decision into a forced adoption case, published on May 1, shows that such conduct is indeed far more widespread than is suggested by the bland reassurances that it “is exceptional”. All of the three judges on the Appeal Court agreed that the conduct of the local authority (East Sussex) was “disgraceful….[Its behaviour] demonstrates a total misunderstanding of its functions under the 2002 Act. … The local authority quite deliberately set out to prevent the father from being heard. The conduct of the local council was an abuse of power, and wholly unacceptable”.

But as with the case heard by Mr Justice McFarlane, the way the council and its officials and social workers behaved suggests that they were used to acting in that “disgraceful” way. Lord Justice Wall noted, for example, that the social workers in the case “do not appear to see the need for good management. It is the arrogance of the agency’s behaviour in this case which is its most shocking aspect”.

There is very good reason to believe that the system is doing the opposite of what it ought to. Instead of helping to keep families together, it is breaking them apart, often for trivial reasons. Fundamental reform is a desperately urgent priority. There are three steps which would could be take immediately.

First: Lift the veil of secrecy. There is no area of government, or indeed of professional activity of any kind, which functions better when officials know that what they do will escape public inspection. It is inconceivable that the quality of decision-making too often characteristic of the family courts would be tolerated in the criminal courts. The only explanation for the difference is that the criminal courts are public: incompetence and errors are made public immediately. In the family courts, it is almost impossible even to identify, let alone to rectify, poor or incompetent decision-making. Of course children need to be protected from publicity. But it is not impossible to devise a system which combines publicity for the procedures and the bare facts of the case with anonymity for the children involved. It works in rape trials, where the identity of the victim is kept secret even though the facts of the case are made public.

Second: Produce a clear definition of critical notions such as “the best interests of the child” and “harm to the child”. The ambiguity and vagueness of those notions has led to their being deprived of all concrete meaning, which has in turn led to a situation in which it is impossible for the courts to assess claims that “a child will be harmed” if allowed to remain with his parents. Moreover, social services, and courts, rarely seem to recognise that placing a child in local authority care is usually in itself extremely harmful. That harm is consequently never weighed against whatever harm is alleged to result from allowing the child to remain with his or her parents. The assumption is that local authority care will be better than parental care: in fact, that is almost never true. Parental care has to be abysmally awful for local authority care to be a less harmful alternative.

Third: Induce a sense of scepticism in judges as to the reliability of claims made by social services and the experts they produce. Mr Justice McFarlane manifested an admirable and wholly appropriate scepticism in his review of the EPO in the case discussed above. But as that case reveals, many of those on the bench are unwarrantedly credulous of social services’ claims, rather than healthily sceptical. They are too willing simply to endorse, rather than to scrutinise, them.

None of these initial steps would be difficult to implement. The depressing thing is that all of them have been recommended in the past — and the Government has never acted on them. What will it take to produce the recognition that reform is essential? The possibility that thousands of children are taken wrongly from their parents every year is clearly not enough. I wonder what is.

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