THERE IS SOMETHING I wanted to write about today. But I cannot. I cannot even tell you that I cannot tell you, because to do so might be to imply what it was I wanted to write about. And that might lead you to infer that I was referring to a situation that I should not refer to. Get it? No?
I am beginning to understand why so few
journalists write about cases in the family
courts. The lawyers are patiently
diminishing my file of potential cases week
by week. But at least I am learning about
the armoury of secrecy that social services
can deploy which prevents scrutiny of the
removal of children from their parents.
John Sweeney, an investigative reporter and
presenter on the BBC’s Real Story,
describes reporting on the family courts as
being as difficult as reporting from
Zimbabwe. Of the seven child abuse cases he
has covered in the criminal courts over the
past few years, all have ended in the
quashing of convictions. Some of the
defendants — Angela Cannings and Sally Clark
— have become household names. But of the
five cases he has covered in the family
courts, all have ended in the parents losing
their children for ever. You will probably
never know the names of those people. Their
names must be changed and their faces
blocked out, to “protect” the children. It
is hard to expose miscarriages of justice
when the stories are drained of human
content.
What I have found extraordinary is how often
highly able lawyers are uncertain about what
we can and cannot write. Despite the issuing
of a model order last year by Dame Elizabeth
Butler-Sloss, then head of the Family
Division, the court orders that limit press
coverage are still often so badly drafted as
to be completely unclear. Sometimes the
order that is drawn up by the court bears no
relation to the draft that the press was
sent in advance of the hearing. Sometimes we
are notified of the order too late to make
representations against it. It costs money
to fight these orders. Local papers in
particular cannot afford to consult lawyers
all the time. The result is self-censorship:
one errs on the side of caution. We end up
conspiring to silence families.
The irony is that the injunctions are
becoming more draconian just as a door is
opening in Whitehall. Harriet Harman, the
Minister for Constitutional Affairs, has
announced that she will consult this year on
opening up the family courts to greater
scrutiny. This is a positive step. But make
no mistake: the same old authorities are
gearing up to argue that openness is
inappropriate where children are involved.
Even if that particular battle is won, there
will still be miscarriages of justice. For
the Government’s consultation will not deal
with some fundamental unfairnesses at the
heart of the system. The first is the
threshold for conviction. In a criminal
court, you are innocent until proved guilty,
and you can only be convicted if your guilt
is beyond reasonable doubt.
A family court, because it cannot imprison
you — only condemn you to serve a different
kind of life sentence by taking away your
child — “convicts” on a balance of
probabilities. You cannot plead not guilty.
In fact you are often penalised for not
showing “remorse”. The assumption of guilt
starts with the first referral to social
services and continues into the courtroom,
where few judges allow parents to call
experts in their defence. New medical
research is slowly demolishing the textbooks
on child abuse: including various new and
innocent explanations for certain types of
fracture that are currently thought by
social workers to be diagnostic of abuse.
But this new thinking is rarely permitted
into the family courtroom.
Wrongs are compounded by the irreversible
nature of the judgments. It is generally
accepted that once a child has been adopted,
the parents cannot see that child again even
if they have managed to prove their
innocence. They cannot even refer in public
to that child by name. Yet this is utterly
wicked. Yes, it will be desperately tricky
to reunite innocent parents with children
who have been adopted by other loving
families. But it is a challenge that society
must rise to. It is just not good enough to
use the manifest difficulties as an excuse
for not even trying. Lorraine Harris, who
was cleared after serving a jail sentence
for shaking her baby to death, when it was
proved that he had a blood disorder, has
little hope of ever seeing her other child
again. We only know of her because her case
went through the criminal court. How can
this be? How can we pile wrong upon wrong?
The more I study this area, the more
unanswered questions appear. Will we be able
to report if a mother kills herself through
the grief of loss? Or will they say that
this, too, would not be in the interests of
the child? Will we be able to report if an
adopted child continues to suffer from
precisely the complaints that were
originally taken to be evidence of abuse? If
the family courts are opened up, will there
be any redress for parents who protest their
innocence, who were convicted in secret? A
little more light, please, into the dark
corners.