Families Denied Justice: If a friend of Lord Falconer can sort out a scandal in the justice system, three cheers for cronyism Nick CohenSunday January 16, 2005The 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 contempts 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.
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