Children and the Family Court – Is it time to open up the System to Public Scrutiny?

As a solicitor of too many years’ experience than I would like to admit, I have represented many clients. Most of these have been adults, but some have been children. I know I am a fleeting presence in their lives, and then I disappear, the job having been completed. Personally I have always felt that nothing would be gained by the publication and identification of everyone involved in these cases. My view has been that newspapers are driven by prurient interest and the desire to sell more copies, than with any real concern about how the system is affecting lives.

Since 2007 the Press has been allowed to report on family cases in a very limited fashion. I have yet to bump into a journalist at court: the new provisions seem so restrictive that they have stayed away. I have to admit that I prefer this; I wouldn’t want my client’s dirty laundry splashed across the Daily Mail.

Last week saw an explosion of Media interest in children cases, due to the publication of a report by Professor Jane Ireland which examined 127 ‘expert reports’, filed in court cases where a local authority is seeking the removal of a child from their parents. This interest has always been there, largely due to a perception that the judges and social workers must be up to no good, as everything is behind closed doors, and nothing is reportable, so called ‘secret courts’. On this occasion, the revelation that 90% of the reports’ authors were professional writers for hire, with no clinical patients, together with the finding that some of them were lacked any qualifications at all, would seem to call for an urgent enquiry as to how this practice could continue.

How can this happen? What is it about UK law which seems so out of step with other First World Countries? The Children Act of 1989 was intended to herald a new dawn in dealing with children through the courts. It was felt that the system had become too prejudiced towards parents in private law matters (i.e. child custody/ child access disputes between parents), and the child’s voice was never heard. In public law (where the local authority is involved), the horrors identified by the Butler-Sloss enquiry into the Cleveland sex abuse scandal, had to be addressed. That was a rather extreme situation where there were numerous erroneous findings of sexual abuse and the child’s subsequent immediate removal from home. There were no legal safeguards at the time for these parents at the time; no court order was necessary. The social workers just turned up in the middle of the night and dragged their screaming children from their beds. The vast majority of these parents were entirely innocent, and lasting damage was done to hapless families.

To counter this terrible episode, a law was brought in to regularise the process of removal. The local authority had to apply to court for Emergency Protection Orders, if an imminent removal was necessary, or apply for a Care Order if it was felt that the child needed intensive local authority support, or needed to be taken away from his or her family. The social workers had to show that care the child was receiving breached the ‘Threshold Criteria’, which are set out in the Children Act at s31 as follows:

A court may only make a care order or supervision order if it is satisfied-

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to-

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control

The Children Act also creates a criminal offence of Contempt of Court if any of the parties to the case reveal what went on. Up until very recently, parents couldn’t even reveal any of the papers to close family members. It is always dangerous to attach criminal penalties to civil wrongs. Standards of proof are different, and the courts operate very differently.

What is not published that often are the accounts of parents whose cases never made it to court. Although these parents can relate their accounts, often they keep quiet as they don’t want their neighbours to find out. This the reason most commonly cited for keeping the family courts secret: playground taunts and the damage thereby inflicted on children who have been thus identified.

An initial step that the Local Authority can take is to investigate the family to assess whether they it needs to intervene. Taking legal advice at this stage can be crucial. I was approached by a couple with a new baby who were the subject of an assessment over their new baby who had suffered burns when a heater had fallen on top of him. A consultant at the local hospital stated that the injury was non-accidental, i.e. that one of the parents had pressed the heater to the child’s face. The clients were blindsided: a well-to-do couple with a nice home and two other children, whose happiness was threatened by the possible actions of the social workers. I instructed a burns expert who examined the photographs of the child, and agreed with the parents’ account of events. We took this report to the Case Conference held by the social services; I was actually lucky to be present as I had no right to be there. It was a tough job persuading the social workers to take the report on board; but in the end it injected sufficient doubt for them to decide not to take any action against my clients.

Having said this, as a solicitor representing parents in court, I have seen some awful cases of obvious abuse where taking the child away were the only option.

However one of the main criticisms of the court in the Ireland report related to its absolute belief in the integrity and views of the expert. A human being’s words become gospel, and what they say enforces Social Services in the rightness of their actions. This may be understandable, in that who else can the judge believe, when he has had no contact with any of the parties or the children. The judge is likely to know well both local authority lawyers and the expert himself, who appears week after week in front to him, to give evidence on case after case. It is human nature to have favourites, and to instruct someone who is likely to support what you say, hence the same authors turn up in court time and time again. This was certainly my experience of working with parents and children in the care system.

There are many problems with this practice, not least, a lack of diversity of opinion. We remember Professor Roy Meadows, and his ‘Cot Death Syndrome’. Many parents, in their grief, stood to lose their other children and even their liberties, as a result of one man’s theory, since disproven. Unfortunately others espoused his suspicions, which held sway for ten years. Now it has been discredited, but in the meantime, these ‘experts’ have become so powerful, they are said to be playing God.

When you are dealing with something as serious as people’s lives, you cannot over-rely on any aspect of the evidence. This ‘science’ in family law has been elevated to the status of judge and jury, with the real judge merely rubber stamping the expert’s views. We must return to a point where the expert is at court to offer his opinion, and the judge treats it as just that, and weighs it in the balance with all the other evidence. Social workers become case hardened: I have seen it many times, as do judges. They make their decisions on a family very early on, and those decisions have far reaching consequences for the child and parents involved. Anyone can get it wrong, and frequently do.

To me, there seems to be no good reason for keeping the identity of the social workers and the experts secret, although certainly the family’s details should be anonymous. However, the parties involved should be able to speak out, to the media, if they wish. Such a paternalistic attitude by the courts cannot be justified; that families almost can’t be trusted to talk about their case.

What can you do if something happens to your child?

If you are faced with a doctor saying that they are going to report you to social services because they suspect your child has a non-accidental injury, take legal advice immediately. If there is nothing sinister in your case, this may be the difference between bringing the matter to a swift conclusion, and having to endure a prolonged investigation.

Contact us at Blanchards Law for free telephone advice.

©, April 2012