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Reid ’em and weep

The peculiar goings-on in the case of Westminster v Associated Newspapers Ltd

 http://www.bailii.org/ew/cases/EWHC/Fam/2017/1221.html

This was a specific hearing arising from a set of care proceedings in which both parents were asserting forcefully that their son H was very ill indeed. The Court, having heard a great deal of evidence and had that evidence tested by lawyers, including lawyers acting for the parents, decided otherwise

 

I found, firstly, that the parents had misreported and exaggerated H’s medical symptoms. I concluded that this had led not only to his emotional harm but to his physical harm. In consequence, particularly of the exaggerated gastrointestinal pain, there was the unnecessary insertion and thereafter the prolonged use of a Hickman line, which exposed H not merely to the risk of short-term infection, but to the risk of liver failure in the long term. It perhaps requires to be underlined that in consequence of his parents’ actions H’s life was placed in peril.

 

 

 

4.I went on to find that the mother, through bullying and bombastic behaviour, had intimidated medical professionals and others to the extent that she confused and undermined their confidence in their own professional judgement. In the hospital it generated a febrile atmosphere in which there was an elevated risk of clinical error, I found this compromised H’s safety.

 

 

 

5.In particular, and this requires perhaps to be emphasised too, in April 2016, on the most compelling of evidence, I found that both parents had, on separate occasions, tampered with H’s TPN pump. The effect of this, though it did not immediately threaten H’s health was, again, to cause confusion and alarm on the ward and jeopardise professional objectivity.

 

 

 

6.The father has both directly and passively acquiesced in the mother’s distorted perspective of H’s health and medical needs. The mother presented H to the world as dying, in extremely alarming e-mails. Moreover, on the evidence, she inculcated in H himself, a view that he was dying. The parents’ actions led to prolonged stays in hospital, the consequence of which was that H has been robbed of much of his childhood and teenage years.

 

 

 

 

7.This is of course a desperate situation made all the more depressing by the fact that H has an outstanding, lively, irrepressible intellect and a keen and zany sense of humour. It is a tragedy that these talents have not been allowed to flourish and grow as they ought to have been. I reiterate, in order that the point is not lost in the detail of my judgment, the harm caused to H by his parents, protracted over many years, exposed him to significant harm at the most serious end of the spectrum, ultimately risking his life.

 

 

The parents, not being in agreement with the judicial decision, sought to involve some crusading journalists to fight their case in the court of public opinion. The Telegraph and the Mail ran sympathetic pieces.

 

I wrote a long passage here, but actually I’m not going to bother with it. My readers already know whether they think Christopher Booker is a champion for justice or something else, and they are all entitled to their own views.

So instead of the long passage where I try to be balanced and reasonable and just annoy everyone on both sides of the argument, here’s a a photo of a young Cat Stevens tasting some food. I can’t tell if the food in the pan is fish, chicken or even pigs (the curly bits could be tails?).   If you are only familiar with beardy old Cat Stevens, DAMN he was a handsome young fellow.

 

My own recipe for rough emotional week – First Cut is the Deepest swiftly followed by Father and Son, get it out and move on

Anyway, this secondary decision was as a result of the child being visited in hospital by a journalist and interviewed by said journalist, who had not been open and transparent about who she was when making the visit.

 

 

 

15.I was informed during the course of the hearing, by the local authority, that it suspected that a reporter from The Daily Mail had visited H in ‘Unit A’ on 8th May. That reporter, I was told, was thought to be a Ms Sue Reid, though the visitor book bore an inscription that a Susan Odette Brown, recorded as ‘a friend’, had visited that day. I indicated to the local authority that they should make inquiries to establish such facts as they could. In pursuance of that, they drafted the following questions which were relayed to The Daily Mail. They are succinct questions and they are responded to with equal clarity. They require to be set out:

 

 

 

 

 

“Do you (i.e. The Daily Mail) employ or commission a journalist called Sue Reid or Susan Odette Brown? Answer: yes.”

 

 

 

 

“Did this journalist visit [the unit] on 8 May 2017 or at all? Answer: Yes.

 

 

 

 

What was the purpose of this visit? Answer: Miss Reid has confirmed that she visited in order to see H and see his social situation.

 

 

 

 

How was the visit arranged?”

 

 

The response was as follows:

 

 

“A campaign group alerted Miss Reid to H’s living arrangements and asked her to pay him a social visit. H’s parents also wanted Miss Reid to visit him and accordingly they passed on H’s mobile phone number. Miss Reid rang the number and spoke to H, who invited her to visit him and gave her a suitable time to do so.”

 

 

The final question was framed thus:

 

 

 

 

“Did you have permission to talk to H, a young person aged 15, and if so who gave you permission? Answer: Yes, H and his mother.”

 

16.These questions had in mind the protection afforded to young people and particularly to those who are vulnerable, by the Codes of Practice (2016), Independent Press Standards Organisation (IPSO). It is convenient that the relevant guidance be set out here:

 

 

 

 

 

“Clause 8 protects patients in hospitals and similar institutions from intrusion. It requires journalists to identify themselves and to obtain permission from a responsible executive to enter non-public areas. The clause applies to all editorial staff, including photographers.

 

 

The clause covers the newsgathering process, so the Code can be breached even if nothing is published. The clause also requires that, when making inquiries about individuals in hospitals and similar institutions, editors need to be mindful of the general restrictions in Clause 2 of the Code on intruding into privacy.

 

 

[Some readers may remember certain press scandals about Russell Harty, a celebrity whom certain sections of the Press believed was hospitalised because of AIDS and reporters donning medical gowns in order to gain access clandestinely to the hospital. ]

 

Of particular relevance is:

 

 

 

 

Identification and permission

 

 

 

 

Journalists must clearly identify themselves and seek permission from a responsible executive to comply with the Code. The use of the term “executive” implies that permission can be obtained only from a person of sufficient seniority. A journalist who attended a London hospital after the Canary Wharf terrorist bomb photographed an injured victim in the company of a relative and another person who he thought had obtained permission from hospital staff.

 

 

When medical staff complained, the PCC found the Code had been breached. It said: “The Commission was not persuaded the reporter in this particular case had followed the provisions of the Code: it was not enough to assume that his identity was known or to rely on the comment of an individual who was clearly not a responsible executive, although the reporter had done so in good faith.” Hutchison v News of the World: http://www.pcc.org.uk/cases/ adjudicated.html? article =MTkwMA

 

 

What the Code says

 

 

  1. i) Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries.

 

 

  1. ii) The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions. A public interest exemption may be available.

 

 

 

 

Non-public areas

 

 

In most cases, what constitutes a non-public area will be clear and will certainly include areas where patients are receiving treatment.

 

See: Stamp v Essex Chronicle

A man v Daily Mail

 

 

17.The code purposefully set a strong objective to safeguard children. The following requires emphasis :

 

Clause 6

 

Children

 

The Code goes to exceptional lengths to safeguard children by defining tightly the circumstances in which press coverage would be legitimate. For the most part, this applies up to the age of 16 – but the requirement that pupils should be free to complete their time at school without unnecessary intrusion provides a measure of protection into the sixth form. In the absence of a public interest justification, pupils cannot be approached at school, photographed or interviewed about their own or another child’s welfare, or offered payment, unless consent is given by the parent or guardian.

 

 

The welfare of the child includes the effect publication might have.

 

 

A complaint from an asylum seeker was upheld after a newspaper interviewed and identified some of his children. The PCC said the article was likely to provoke a strong reaction in readers, which might affect the children’s welfare.

 

 

Kenewa v Sunday Mercury

 

 

There is a public interest defence available to editors, but here again the bar is raised in favour of protecting children and the Code states that “an exceptional public interest” would need to be demonstrated.

 

 

 

 

What the code says

 

  1. i) All pupils should be free to complete their time at school without unnecessary intrusion.

 

 

  1. ii) They must not be approached or photographed at school without permission of the school authorities.

 

 

iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents.

 

 

  1. iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child’s interest.

 

 

  1. v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life.

 

 

A public interest exemption may be available. See Page 96.

 

Consent

 

 

The press has to establish which is the competent authority to grant consent in each case.

 

See: A woman v Derby Telegraph

Brecon High School v Brecon and Radnor Express

 

 

 

18.In order to advance their own explanations, the parents both filed statements in which the broad thrust of the answers given by The Daily Mail were or appeared to be disputed. It has been necessary for me today to inquire as to what in fact led to the visit, which all agreed took place, between Ms Reid and H at the unit on 8th May.

 

 

 

19.As the evidence has unfolded it has funnelled into a very narrow area of agreement and disagreement. Today there were filed, on behalf of Ms Reid, a number of e-mail communications, which have been helpfully set out by Mr Browne QC and Mr Wolanski, who represent her through Associated Newspapers Limited. A key communication is an e-mail sent at 18:30 on 6th May by H’s mother to a Miss Miray Kester, whom she describes as a friend. It is clear from that email and the earlier discourse that it was intended to provide a summary of H’s situation from the mother’s own perspective. It is, characteristically, a gross distortion of the facts. It presents H, in melodramatic terms, brutalised and neglected by the system. Yet again the mother describes H as suffering from serious illness. As those reading my earlier judgment will appreciate and as time has now borne out, H is not suffering from any serious illness. Those conditions which he does have are not seriously debilitating.

 

 

 

20.It is unnecessary for me further to burden this judgment with the details of the email communications because a number of factors are clear. Firstly, I am satisfied that, in the context of the email communication as a whole, the email I have referred to above was written by the mother as a briefing document for the press. The document, which I do not propose to read into this judgment, speaks for itself. Secondly, Ms Reid obtained H’s telephone number and spoke to him directly before she spoke to the mother. This she agreed in evidence. Thirdly, Ms Reid later spoke to the mother on the telephone and the conversation lasted some 40 or so minutes. In that conversation Ms Reid plainly formed the view that the mother was at her wits’ end, very distressed and agitated. Much of the content of the e-mail of 6th May seems to have been replicated in that conversation, which Ms Reid agrees took place.

 

 

 

21.The mother asserts that the move to the unit is a tragedy for her son. As she puts it, it is ‘a violation of his human rights’. She refers to his ‘being locked away’ and she caricatures it as a focus on ‘mental disorder’ rather than the contemplated across the board evaluation of his needs that I have described. This is all deep-seated, the mother has been hostile to Great Ormond Street now for many years. It was very much a feature of her evidence in January and February of this year. The mother denies giving Ms Reid permission to speak to her son. However, she says: had this journalist asked me directly if she could have permission to speak to my son, I would have said yes. But, she says, ‘it was never asked’.

 

 

 

22.It is plain, having listened to the mother’s evidence and Ms Reid’s evidence, that the mother not only was enthusiastic about H having an opportunity to meet a journalist but never at any point in the conversation gave Ms Reid even the slightest suspicion that she had the remotest anxiety about it. The mother is highly manipulative, as Ms Reid has now plainly found out. I think it unlikely that she gave her express permission but I am quite clear that she enthusiastically contrived with Ms Reid to facilitate the interview. Ms Reid told me, and I accept, that the mother gave her the address and details of the unit.

 

 

 

23.In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

 

24.The facts are now, as I see it, uncontroversial. Ms Reid went to Unit A. She did not make herself known to the staff. She did not identify herself as a journalist and she did not seek permission from a responsible executive to enter these non-public areas. It is also clear and again she accepts that she was aware that H was subject to a Care Order (in fact it is an Interim Care Order but that is of no consequence here).

 

 

I’m going to repeat paragraph 23, because I think it is significant

 

In her evidence Ms Reid told me that she would “never trust anybody again”, by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.

 

 

Long carefully balanced paragraph removed, because it even made me throw up a little.

 

Instead, who would like to see a picture of Cat Stevens and some kittens? Of course you would.

 

 

There are dog photos too, but this blog has been dog-centric, and time for cat-rebalancing

 

 

Only click on the link if you’re comfortable with being a bit sad for a few minutes whilst simultaneously awestruck. (And see – handsome…)

 

 

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The Latvian case – the judgment is up

 

 

This is a follow-up from Monday’s piece, about the latest Christopher Booker outrage.

https://suesspiciousminds.com/2015/11/30/police-ignore-judges-order-to-help-latvian-family-escape-social-workers/

 

 

You may remember that from Mr Booker’s account, the child had a small mark on his neck and another small mark, which led to social workers trying to snatch all of the children, and the parents instead fled with the help of Forced Adoption to another country.

 

You may also remember how incandescent Mr Booker was that the Local Authority couldn’t be named because of a gagging order.

Eleven days ago, the second oldest child of Russian-Latvian parents working in a town I cannot name for legal reasons was seen by a teacher to have a small mark on his neck. When the school reported this to social services, an examination revealed another slight mark on his leg. The family found itself plunged into an inexplicable nightmare

In this latest case of the family that got away (but which Judge Duggan does not allow us to name), the conduct of the Irish and Latvian police seems yet further evidence of just how little confidence foreign authorities now have in the fairness and legality of Britain’s increasingly notorious system of “child protection”.

 

The judgment is now up.  Is it an “inexplicable nightmare”?   Does child protection in Booker’s sub-headline need his air-quotes around it to show that it was no such thing?

 

 

 

Blackburn with Darwen Borough Council and Flight to Latvia 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B189.html

 

The eagle-eyed reader may spot that the name of the Local Authority is in the name of the case, rather than being prevented from being known because of a gagging order. There is no gagging order. The usual restrictions on naming the children apply.  [“Ah,” Booker defenders are saying already, “that’s only because Booker called them out on it, so they had to back down.”]

 

  1. The written evidence available to me indicates that on 12th November 2015 D was seen at school with a burn mark on his neck and another mark on his thigh. The appearance suggested injury with a rope. He said his father was responsible for the neck, an injury inflicted, he said, with a belt. He said his mother was responsible for the injury to the thigh. N was examined and was found to have bruising to the cheek for which he does not appear to have provided an explanation.
  2. The parents have been seen. The father says that the injury to the neck was caused by him in unclear accidental circumstances which I am afraid need more explanation. The mother said that the injury to N’s cheek arose from an incident in school but on investigation the only relevant incident at school concerned the oldest child. The parents agreed with Police and local authority that while investigations took place, the children’s safety would be ensured by their temporary residence with the grandparents. This was implemented but on 19th November 2015 the children did not turn up for school and enquiries revealed that the parents had removed the children from the grandparents the previous evening and left the district. It is a concern that the grandparents, who have been entrusted with responsibility for the safety of the children, did not see fit to draw this development to the attention of the local authority.

 

 

Now, let me be clear. We have here marks to a child’s neck. The child says that the father hit him with a belt. The father says there was some sort of accident, the mother says it happened at school. Three competing accounts. The parents did not attend Court to give their accounts, or ask their lawyers (who would have not have cost them a penny) to cross-examine witnesses and to refute the claims. It might well be that if all of the evidence had been tested, that the Court would have decided that there was no deliberate injury to the child.  So this judgment is not PROOF that the father hit the child with a belt – but it does meet the test to be considered by the law – were there reasonable grounds to believe that the father had hit the child?   Given that father and mother chose not to come to Court to tell the Court the truth, the Court would be left with little choice but to consider there were reasonable grounds to believe that the child had been harmed.

 

The social workers had not believed the parents accounts and had believed the child. They had made arrangements to keep the children safe within the family whilst investigations took place. Those arrangements were breached. The social workers went to the Court, to say “We think the children aren’t safe and we would like an order to protect them”.

The parents were able to come to Court with free lawyers to give their account and to say that the children would be safe, and an independent Judge would hear both sides of the case and make a decision – that decision being on the principles that :-

 

(a) It is for the Local Authority to prove harm, not for the parents to prove their innocence

(b) Even if the child had been harmed, the Court would still look at what measures short of removal could keep the child safe

(c) An order for removal would only be made if it was necessary to keep the child safe, and would only be whilst assessments were carried out over a period of time to see if the parents could make changes.

 

I would like to ask Mr Booker what actions he thinks social workers ought to take instead of this if they are told by a child that his father hit him round the neck with a belt?  Because it seems to me that the alternative is to do what Mr Booker did, and assume that the parents did not do it.  And I’m fairly sure that if they got that wrong and the child suffered further injuries, the Daily Telegraph would not be leaping to their defence.  I’m fairly sure that the Daily Telegraph wouldn’t be putting air quotes around child protection then – they’d be saying, and rightly so, “This child told you that his dad hit him round the neck with a belt and you did NOTHING to keep him safe. Your job was to protect that child, and you didn’t do it”

 

If a social worker thinks that a child has been deliberately injured and can’t keep the child safe whilst investigations take place, putting the matter before the Court is the safe and fair thing to do. It is not an ‘inexplicable nightmare’

The alternative is that people just take a guess as to what happened to the child. Maybe the child made it up, in which case the family are safe and happy in Latvia. Maybe the child really was hit by his father, in which case it isn’t great that the parents were helped to leave the country with the children.

 

Which is it?

I don’t know. And you don’t know. And Ian from Forced Adoption doesn’t know. And Christopher Booker doesn’t know.

I’d suggest that perhaps given that none of us know, and that the risk of guessing and getting it wrong is big either way, that the best way to make that decision is for an independent Judge to do it, having heard evidence from both sides, not just one.

 

Do Judges get it right all the time? No, sadly.  I write about these cases all the time. And social workers don’t get it right all the time either. And nor do doctors, or teachers, or anyone.  It might well be that this child made it up and is quite safe with mum and dad. We just don’t KNOW.

 

But you see the difference between a Judge deciding, and Christopher Booker deciding what happened, is that (a) The Judge hears BOTH sides (b) The Judge hasn’t made their mind up who to believe before you even start and (c) If the Judge gets it wrong, the decision can be appealed and put right.  What’s the appeal process for Christopher Booker deciding that this child is safe with mum and dad?   And if we have Christopher Booker deciding what’s going to happen in these cases, what stops Katie Hopkins doing it?

 

 

Police ignore Judge’s order , to help Latvian family escape social workers

 

This is Christopher Booker’s latest column

 

http://www.telegraph.co.uk/comment/12022882/Police-ignore-judges-order-to-help-Latvian-family-escape-British-social-workers.html

 

There is not a judgment up yet, that would allow me to give you an account of what has happened from someone who has heard both sides of the case, rather than just one side. I will keep an eye out.

 

The column does have the usual Booker hallmarks – the account provided by a single source, the cosying up to the President of the Family Division as being the only person who is trying to put things right, his habit as a ‘journalist’ of confusing making an argument with simply putting words in quotation marks to show his contempt for them,  his misunderstanding of many basic legal principles, and his unappealing habit of throwing the Judge’s first name around like confetti  – I imagine this is done to belittle them and diminish respect for them. It is a cheap shot.

 

It still surprises me, though it really shouldn’t after all this time, that when there is a Court case where the Judge actually uncovers the sort of dark dealings by social workers or a cock-up or mistake by professionals that led to children being wrongly separated from families, Booker is always silent.  Where are his columns on Al Alas Wray, on the foster carer who used racially abusive language to the mother, on the mother who wasn’t told for six months that whilst she’d been in a hospital having mental health treatment that social workers had taken the child away from the neighbours she’d left them with, on the Hampshire case from last week?

There are genuine scandals that happen in family Courts – appeal Courts showing why less senior Judges had made mistakes or had not been fair, Circuit Judges uncovering wrong-doing or errors or even conspiracies involving lying to the Court. They do happen – you’d be a fool to say that they didn’t.  And maybe those uncovered cases are the tip of the iceberg, and it is right for journalists applying the usual codes of practice that govern journalism to dig and investigate and bring them into the light. I’ve no problem at all with a journalist attacking the system and wanting to reform it. But if you were a columnist crusading for reform of the family justice system, why wouldn’t you be interested in writing about these cases where the facts absolutely demonstrate that there had been something rotten in the State of Denmark? They aren’t conspiracy theories, they are facts.

I’d welcome a column from Booker on the Hampshire case – it deserves attention, he’s a ‘journalist’, he’s angry about social work corruption and bad practice – he’s a good person to write the story.

 

Note to Ian from Forced Adoption – I am sure that you can give me and other readers chapter and verse on the background to this column. Please don’t.  I’ll read it from the Judge who heard both sides of the story rather than just one. Perhaps the Judge still got it wrong, people are only human, but I do think that hearing both sides doesn’t half give you an advantage before reaching a conclusion.

 

As ever, if I read the reported judgment and it shows that Mr Booker is factually correct in the substance of his claims, I will let you all know.  (I haven’t had to do that in four years of running the blog and checking Mr Booker’s reports of dire misdeeds against the actual judgments, but there’s always a first time).  Equally, if I think that the reported judgment shows that mistakes were made or that those involved were treated badly, I’ll say so.  I ran stories on Al Alas Wray, on the foster carer who used racially abusive language to the mother, on the section 20 abuses, on the Hampshire case where social workers lied, and sadly I think that I’ll have to run similar cases in the future. But I show the readers where my source comes from, and they are free to read that source for themselves and reach their own conclusions.

 

 

A tale of One Telegraph – follow up

I said that I would look out for the transcript of the judgment that Mr Booker was reporting about

https://suesspiciousminds.com/2015/02/16/a-tale-of-two-telegraphs/

The bare facts that we knew were – His Honour Judge Jones, two boys, a bruise, and an older child, and Placement Orders being made.

This case here, ticks all of those boxes

Re A (a child) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B200.html

I don’t want to get stuck into the facts too much, because there’s no way to be SURE that it is the same case that Mr Booker was writing about. You may recall that the central complaint in Mr Booker’s piece was that the parents weren’t able to fight the case and were not allowed into Court.

From Re A, the Court say this:-

 

  1. The parties to the applications and their legal representations are as follows:
  • the Local Authority, X County Council brings both applications in respect of the children and are represented today by Miss Beattie;
  • the children’s mother L is represented today by Miss Erwood. The mother has been present during the course of today, but she like the father has decided not to remain within this courtroom this afternoon for the purposes of this judgment. That decision is perfectly understandable so far as the Court is concerned;
  • The children’s father is CC. He shares parental responsibility for the children. He is represented by Mr Blythin;
  • The children are represented by their Guardian Miss Siân Wilson who has been present today and is represented by their solicitor Miss Debbie Owens.

 

A parent deciding that they don’t want to come in and hear the judgment is not that uncommon, and is an utterly different thing to being told they aren’t allowed to come in.

It can’t be an easy thing to listen to, particularly where (as these parents did) they have decided not to fight the case and they know that the outcome is going to be something that will break their heart.

One of Mr Booker’s complaints is that the parents were told that there was no prospect of appeal. That would be right in this case, because the parents decided not to oppose the case. It would be an extremely unlikely scenario that a person can decide not to fight a case and then the same day have legal grounds to appeal the decision.

It is always difficult with a Mr Booker story to be sure when you actually have the judgment that matches up with his case, and in his defence, it could be that this is another case entirely.

There’s nothing improper about the judgment in Re A – it considers everything that needs to be looked at, it is not a rubber stamp, it gives proper regard to the evidence and the legal tests and it is as kind as a Judge can be in those difficult circumstances.

IF this is the case that Mr Booker complains of, there is absolutely nothing in it that warrants the level of complaint he was making.

They had legal representation, they were entitled to go into the Court, they were entitled to instruct their lawyers to fight the case. By the sounds of it, they were given advice that the chances of doing so successfully were very poor and they decided not to put themselves through that ordeal. Perhaps they regretted it almost immediately. Perhaps they feel in hindsight that they didn’t feel that they had a choice. Perhaps they wish that they had fought the case and that they will never know now what might have happened. But they had the choice to make, and they made that choice with legal advice.

Perhaps (and I really don’t want to besmirch these particular lawyers, it is more of a general complaint) lawyers don’t always make it completely clear enough to parents that the lawyer is there to advise them, but that the parent can refuse to take that advice. They can tell the lawyer to fight on, and the lawyer’s job then is to fearlessly represent that client without fear or favour.  You can tell your lawyer, thanks, but not thanks.

Unlike a boxing cornerman, your lawyer can’t throw in the towel on your behalf, even if they think you will take a horrible beating. Only you can throw the towel in.

[One can accept of course that someone can legitimately hold a view that adoption is wrong in all cases and that any case involving adoption is thus wrong and unfair. If that’s your view, then like Ian of Forced Adoption, you’re entitled to make complaint about all and any cases. But if you are instead arguing that in this particular case, the parents were robbed of a fair hearing, and denied due process, there’s nothing to support that assertion]

If it isn’t the same case (and he is able quite easily to establish the date of the final hearing and who was representing the parents to show otherwise) then we will have to wait and see for when the real case he was writing about shows up.

 

There ARE things that go wrong in family law, there are cases where parents are done great injustice (like the HH Judge Dodds case that Mr Booker also writes about) and it is a good thing that there are people to make those injustices known. It is only by dragging them into the light that things will get better.  But we do also have to be responsible in reporting and be sure that if we are shouting that there’s a wolf that what you are seeing is really a wolf.

 

A tale of two Telegraphs

 

Two recent stories in the Telegraph about Court cases.

 

The first, here

 

http://www.telegraph.co.uk/comment/11412971/Why-dont-the-family-courts-obey-the-law.htmlr

 

is from a writer that you all know Christopher Booker.

 

Mr Booker’s story here is that a mother in care proceedings lost her child at an interim stage because of ‘one small bruise’ and was not allowed into the Court room during most of the hearings, and that this was because of their lawyers.

 

On a court order, the two boys were taken into care, and over the following months, through several court hearings from which the parents were excluded by their lawyers

 

Last April, the couple were summoned to a final hearing to decide their sons’ future. The mother was represented by lawyers she had been given by Women’s Aid, which works closely with the local authority. As an intelligent woman, studying for a university degree, she and her partner arrived early at the court, for what was scheduled to be a five-day hearing. They were armed with files of evidence and a list of witnesses they wished to call, all of which they believed would demolish the local authority’s case.

But the mother describes how they were astonished to be told by their lawyers that again they would not be permitted to enter the court. Half an hour later, the barristers emerged to say that the judge had decided that their two boys should be placed for adoption. There was no judgment for them to see, and no possibility of any appeal against his decision. This Wednesday the couple will have a final “goodbye session” with their sons, never to see them again.

 

 

Mr Booker names His Honour Judge Jones as the judge behind this story. [He doesn’t quite give him that courtesy, instead assuming that he is on first name terms with a Judge who he’s about to rip apart in a national newspaper]

 

Now, there are two distinct possibilities here.

 

  1. Everything that Mr Booker reports here is true.
  2. What Mr Booker reports is not what happened and something has gotten lost in the telling of the story.

 

As ever with Mr Booker, he doesn’t make it explicit that there’s a single source for his story, but I can’t see a second source anywhere. Now, that doesn’t mean that it won’t turn out to be true, but I’d feel happier when dealing with extraordinary claims to see confirmation of the story from more than one source.

 

We simply don’t know until we see the judgment from His Honour Judge Jones. In fact, if the latter of those two possibilities is true, we may not even recognise the judgment as relating to this case at all.

 

It would be utterly wrong, and utterly appealable, for a Judge to make an Interim Care Order removing a child from parents without letting them into the court-room, and utterly wrong, and utterly appealable for a Judge to make a Care Order and Placement Order without allowing the parents into the Court room and allowing them to have their opportunity to fight the case if they wished to. If this happened, it would be tremendously wrong.

 

If what Mr Booker says is what actually happened, then he is utterly right to rage against it and I would join him in his rage. If I was a betting man, my money would be on the second possibility, and that he has not been given a full and complete account of what happened.

 

HOWEVER, and I will be absolutely fair to him, if he had told the story of the case before HH J Dodds where the parties attended the first hearing and the Judge made three Care Orders in a five minute hearing, I would not have believed that either, and Mr Booker would have been right and I would have been wrong.

 

I would have said so had that happened. He is also right to draw attention to that Court of Appeal decision about HH J Dodds, and it does highlight that sometimes things happen in Courts that fly in the face of everything you believe and that really unfair things can happen to people. If it happens to you, it is small consolation that it is rare and shouldn’t happen, it must be utterly devastating. Some of the people who come to Mr Booker, or any of the other campaigners, are coming with completely truthful accounts of dreadful injustice, and it is important that they have somewhere to turn, someone who will listen to them.

 

As George Orwell said – We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

 

And although I’m not asserting that Mr Booker or any of the campaigning groups are either rough men, or would be willing to visit violence on anyone, you hopefully get the general thrust of the point. In being willing to listen to the stories of injustice that people tell them, they provide a mechanism for injustice to come to light, and that is an important thing.

 

I hope that Mr Booker is wrong here, but I accept that he could be right, and if he is, it is important that people hear of it.

 

Sometimes Judges do behave in appalling ways. Sometimes social workers do too. So sometimes, the sort of stuff that Mr Booker rages about does happen, and when it does, he is right to be bloody cross. Even if I think that sometimes Mr Booker is the boy who cries wolf, there are wolves in the world, and that boy was eventually right.

 

If and when I see a case from HH Judge Jones that relates to Care Orders, involving Denbighshire Social Services, two boys and a bruise, I will update you. Perhaps Mr Booker is right. If he is, it is a scandal and I will commend him for bringing it to light. If he is mistaken, then no doubt there will be a correction and an apology, not least to a Judge who has been accused of acting in a way that would make anyone reading it think much less of him.

 

 

[Here is an idea, which I’m sure won’t be taken up – if a parent comes to a journalist with a story that sounds extraordinary about the way they were treated in Court, get the parent to sign an authority allowing the journalist to approach the solicitor representing them, and for the solicitor to read the proposed article and tell the journalist whether that’s an accurate depiction of what really happened, or if the facts have got a bit mixed up]

 

 

Second case

 

http://www.telegraph.co.uk/news/health/news/11412861/Judge-refuses-mothers-plea-to-treat-terminally-ill-son-saying-he-should-be-allowed-to-die.html

 

In which Mrs Justice Hogg, sitting in the Court of Protection made a declaration that the hospital could lawfully stop treating an 18 year old with a brain tumour, even though that withdrawal of treatment would end his life and his parents were arguing that the treatment should continue.

 

Now, this is a story which feels much more solid. It is easier to believe when reading it that what it says happens is what happened. (Booker’s story may well turn out to be true, but it has question marks over it that this one does not)

 

The hearing was in public, which makes it a lot easier for a reporter to put out a strong story with sources – in this case, there are quotations from the judgment and comments from both sides, and the report gives the sense of what a difficult decision this must be either way. It also has the sense of being the sort of thing that happens in the Court of Protection – these are the sort of decisions that have to be taken, the evidence heard and issues raised are consistent with the way one might imagine such a hearing to take place.

 

Again, until we get the judgment, it is difficult to analyse whether the Judge was right or wrong in making that decision – we simply don’t have enough of the key pieces of information or to see how the Judge balanced the competing arguments. So when it comes up, I will share it with you, and we can have the debate – hopefully it won’t be long.

 

It is hard not to have an emotional response however, and my sympathies on an emotional level are with the parents. I don’t think there tend to be many such decisions that go with the heart rather than the head (or with the parents rather than the medics) and I tend to think that the wishes of the family ought to carry rather more weight than they often seem to at the moment, as an overall criticism of these decisions rather than saying that the Judge in this particular case got it wrong.

 

It will be interesting to see how the Judge dealt with the right to life issue, article 2 being something that binds the Court as a public body, and that being an unqualified right. There are previous decisions which do sanction this withdrawal of treatment, largely connected to the right to die with dignity

 

It does make me somewhat uncomfortable that where a family want that for a person it is generally resisted, but when the medics want it and the family oppose it, it generally happens. Is the judiciary too deferential to the views of medical professionals? That’s a much wider debate.

Booker

 

I have just read the latest scandal piece about the family justice system by Christoper Booker.  Now, Mr Booker has quite a bit of previous viz a viz accuracy of reporting despite being well-meaning and committed, so I will come back to this once the judgment is published.  [I have read all of the published judgments by Mrs Justice Simler up on Bailii, and it isn’t any of those – so will keep an eye out]

As ever with Mr Booker, if the facts are as he reports them, it would be right to be completely appalled and troubled, and this decision (if it turns out to be precisely as he reports it) would be very worrying for McKenzie Friends up and down the country.

Even the boy who cried wolf was of course, eventually right about the wolf, so Mr Booker may be an accurate reporter of facts here. Let’s see.

Here is his story

http://www.telegraph.co.uk/news/uknews/law-and-order/10775631/Costs-ruling-in-family-court-penalises-those-helping-wronged-parents.html

 

Let’s break it down into the core allegations that are made

 

1. That a child was placed in foster care because social workers felt he needed speech therapy and mother disagreed.

 

2. Mother removed him from foster care

3. Mother was sent to prison for removing him from foster care

4. Whilst in prison, she was assaulted by prison staff and crippled

 

5. That she was then deported to America

 

6. That some people in the UK, having heard about her case, offered to help her, and a judicial review was brought

 

7. At a hearing in April, at which her McKenzie Friends “could not be present”,  Mrs Justice Simler decided that the case was entirely without merit  (the unspoken inference here is that the Judge was wrong to dismiss an application for judicial review at which the applicant did not show up. )

 

7a  That Mrs Justice Simler is “the latest recruit to the High Court team”   [well, this is theoretically possible, but I find her name as one of three Judges sitting in the Court of Appeal doing criminal cases, so it seems somewhat unlikely.  EDIT  – it does appear that she became a High Court Judge in October 2013, so I stand corrected.]

 

8. An order for costs was made, with the McKenzie Friends being considered to be “parties in the case” and liable for a cost order of £4,000

 

9. In effect, the judge was sending a warning to all such lay advisers that, by offering help to litigants, they now risk severe financial penalties if their case is lost.

 

 

I am fairly sure that points 6, 7 and 8 ARE true.  We will probably never know about 1-5, because they weren’t argued before the Judge (because the applicants didn’t attend the hearing).  You might think that for a McKenzie Friend, 8 is the most serious, and if that’s likely to be true, then point 9 is also true.

 

Well, not quite.

The article seems to confuse family courts and a court dealing with judicial review, but that’s an understandable mistake. In judicial review, it is not at all uncommon for a costs order to be made against the losing party, that’s how it works. You win the case, you get your costs from the other side. In family courts it is a very rare occurrance. It happens, but only where the conduct has been reprehensible.  One would assume that the McKenzie Friends bringing the judicial review understood the costs risks, and also understood that the costs position would have them personally on the hook for the costs order.  It doesn’t mean at all that a McKenzie Friend helping a parent with a FAMILY LAW case would be at risk of a costs order, unless their behaviour was extremely bad.   That’s a very important distinction – I can understand a journalist, even one who ostensibly writes about family law, not getting it but it is important if you are trying to imply that Justice Simler’s decision means that being a McKenzie Friend in care proceedings carries a personal costs risk

 

Here is the deal

 

If you bring a judicial review application and you lose, you are likely to have to pay the other side’s costs. Even if you brought the case in good faith and thought you were going to win.

The costs order can cover those who are funding the litigation on the loser’s behalf or conducting it

In a family case, it is extremely rare for a “loser pays costs” decision – the law is very very different, and is more on the basis that everyone covers their own costs unless costs were wasted by egregiously bad behaviour by one of the parties.

You therefore TAKE A RISK about costs in issuing judicial review that you DO NOT in a family case.  You can end up paying costs in judicial review even if you behaved impeccably, if you end up losing. You don’t pay costs in a family case if you lose, unless your behaviour is really bad.

 

So even the headline of this article “Costs ruling in family court penalises those helping wronged parents” is wrong by the fourth word, judicial review is not a family court.  Judicial review is far less forgiving than the family court – if someone doesn’t show up for a family court hearing or files a document late, the Court CAN be forgiving, in judicial review that’s going to be game over. A McKenzie Friend is at very little risk of a costs order in helping a parent in a family Court. I would hope that Booker’s take on this case is not going to put any of the people who do really important work helping parents off doing so.

 

[Is that fair? Was it the right thing to do in these circumstances, to these McKenzie Friends who were just helping a parent who they thought had been mistreated? Well, that’s probably a wider public debate, but if you know enough about the law to know how to bring a judicial review, then the expectation would reasonably be that you also know that costs are a risk in such an application. ]

 

 

ADDENDUM

It is very hard to be sure – but it appears that the family case might be this one – which I have written about before – London Borough of Barnet v M1 2012  http://www.bailii.org/ew/cases/EWCC/Fam/2012/5.html.

 

There are enough echoes within it to make it a possible match and the timelines fit with Mr Booker’s earlier article.

 

My previous piece  https://suesspiciousminds.com/2013/11/01/it-aint-me-babe-it-aint-me-youre-looking-for/   .

 

Mr Booker’s previous column about this woman   http://www.telegraph.co.uk/health/children_shealth/10308803/Deported-imprisoned-and-beaten-for-being-a-parent.html ]