Child Protection - Justice for Parents

Child protection - Justice for parents

 

 

THIS TRANSCRIPT WAS TYPED FROM A RECORDING AND NOT COPIED FROM AN ORIGINAL SCRIPT. THERE IS THEREFORE THE RISK OF MISHEARING AND THE DIFFICULTY IN SOME CASES OF IDENTIFYING INDIVIDUAL SPEAKERS.

 

 

“FILE ON 4”

 

Transmission: Tuesday, February 17, 2004

Repeat: Sunday February 22, 2004

 

 

Producer: Andy Denwood

Reporter: Allan Urry

 

 

 

BBC reporter:  Now Allan Urry examines the way in which the legal system deals with some of its most emotionally charged cases.

 

 

ALLAN URRY:   It’s a central principle of our legal system that justice needs to be seen to be done.  Yet inside the courtroom behind close to where I’m standing, decisions are taken every day about how families live their lives, and they’re taken in secret.  I can’t report what is said without the risk of breaking the law and you can’t go in and hear what is at stake.  These are the family courts where care proceedings are heard confidentially to decide the future of children thought to be at risk from their parents.  They also order that babies be removed form their mothers.

 

Paula:  I'd just had an emergency caesarean.  I was holding her.  They had a court order to remove her from the hospital.  It took awhile before they could even get her out of my arms.

 

ALLAN URRY:   Such extreme measures call for the most through examination of evidence, last month the Government promised to review any cases in which expert medical opinion may have wrongly influenced the outcome of hearings.  But File on 4 has discovered that some of these controversial cases raise more fundamental questions about the way care proceedings are conducted.  Is there injustice hidden within the secret world of the family courts?

 

WILL CARTER:             This was taken in January of 99, a few short weeks before they were taken from us.  You can clearly see that they are four very close children.  This was the end of the family life, of all six of us being together. 

 

ALLAN URRY:  Eighteen months ago, File on 4 raised serious questions about the case of the Carters, as we’re calling them, who now have to rely on photographs to remind them of their four children, taken into care.  The two youngest were subsequently adopted.  The parents, Will and Michelle, came under suspicion after the collapse of their daughter, then a toddler.  She was saved by doctors in hospital and after she recovered was allowed home. 

 

MICHELLE  CARTER:             All of the sudden we had a letter come through the post from the social services saying they wanted to see us with a police officer because a urine sample had turned up, been tested and had a drug in her system, that wasn’t administered by the hospital. 

 

Allan Urry:  There was concern the child had been poisoned.  It set in motion a chain of events for the Carters went from bad to worst.

 

 

MICHELLE  CARTER:             We had a child protection meeting of 13 professionals; eleven of them said they had no concerns with the children.  The social worker and his manager said yes they wanted all four on the at-risk register.  The chairperson went with the two, not the majority.  They then applied to the Court to remove my four children from our care. 

 

 

Allan Urry:  It was the view of an eminent paediatrician Professor Sir Roy Meadow that Michelle had forced a number of tablets down her daughter’s throat leading to the poisoning.  She continues to deny that suggestion, offering instead the explanation that her child probably picked up a single tablet, which had fallen on the floor.  Part of what helped to determine which version was the most likely rested on an interpretation of the toxicology, File on 4 commissioned an expert toxicologist to examine the case for poisoning against the Carters.  It cast strong doubt on the testimony of Professor Sir Roy Meadow, who’s not a toxicologist. 

 

Armed with this new information Will Carter went back to the Family Court with an appeal in mind.  In Family Court no one who’s not formally a part of the case sees official documents without the Judge’s approval.  Mr Carter wanted permission to allow the expert a chance to review the original findings. 

 

 

WILL CARTER:             We had to go to Court and again ask the Court’s permission to show Professor Meadow’s report and the medical records to a specialist, so that they could give official opinion to the Court.  Without this information, we couldn’t stand a chance of launching a successful appeal.  Now at the Court, the social workers said fine and they had no problem with us showing the paperwork.  Everything seemed fine that we were going to go in there and we were gonna get what we wanted.  Until we spoke to the judge and he said, “No”.  And what he said was there was no provision in the Family courts for us to clear our name, all we could do was to launch an appeal or ask for judicial review.  But again without this information we couldn’t do either of those.  So he wouldn’t give us permission to show the paperwork, so that led us to a catch-22 situation. 

 

 

Allan Urry:  In fact the family could’ve appealed the decision of the judge not to grant their request, but even then according to a leading QC, Alan Levy, the odds are attacked against parents like the Carters.

 

 

Alan Levy:      The parents and others are quite right to feel that there are real barriers in the way of appeals.  It’s very difficult to appeal decisions, which essentially turn on a judge’s discretion. 

 

There was a case some years ago in the House of Lords, which said that unless you can show that the decision was plainly wrong, or there was some obvious clear error of law, or something procedurally had gone drastically wrong, then there shouldn’t be an appeal.  Of course, all cases or many of them can’t simply be relitigated.  But I think maybe the pendulum has swung too far against appeals and I would look for a certain relaxation, particularly where medico-legal issues are involved where one knows that there are real risks of miscarriages of justice.

 

 

Allan Urry:  Mr and Mrs Carter also say faced with the eminent paediatrician, Professor Sir Roy Meadow, they’re legal team didn’t argue the case strongly enough.  Will Carter says chances were missed during what he believed were misinterpretations of some medical evidence.

 

 

WILL CARTER:             As an example, he accused us of poking something into our second youngest daughter’s ear, which caused it to bleed.  Now in the medical records it clearly states that yes she had a bleed.  We had the GP that Saturday.  Later that day we also had her at the local hospital ‘cos if it were still bleeding.  Now he contends that would prove that we were abusing the child.  What he fails to mention is that three days later a follow-up ENT appointment that had been made on that Saturday, they’d taken a swab and it clearly showed that she’d got a severe inner ear infection, which had built up pressure behind the eardrum which had perforated it, which had caused the bleeding and everything.  But he failed to mention this.  Now to my mind, surely this is what the solicitor should have done in the first place, they should have took what Professor Meadow was saying and compared it with notes, exactly what I did.  They’d had done it an awful lot faster than I did because obviously they should’ve been used to doing this sort of research.  If I can do it, totally untrained in legal matters, not knowing anything about medical matters, if I can find the information to disprove then why didn’t they?

 

 

Allan Urry:               It was only much later after they’d lost the care of their children, that the Carters discovered the solicitor they’d hired from their local High Street practice, had not previously acted in the complex and specialized area of care proceedings.  Comparatively few have the training and experience needed for such work.  Children who are represented separately from their parents must have such a person.  But according to Professor Christina Lyon, director of the Centre for the Study of Child, the Family and Law, at Liverpool University, it’s not uncommon for parents to end up without specialist help.

 

 

Prof Lyon:     Children in care proceedings have to be represented by solicitors from the Childcare panel.  That’s a body organised by the Law Society, you have to have particular tests, which have to such.  You have to satisfy examiners.  You have to be interviewed.  You have to go through a very lengthy process and quite challenging process in order to get on the childcare panel.  But it is a solicitor representing children have to be on that panel and not solicitors representing parents.  So very often parents may not realise that what they should be looking for is perhaps a member of the childcare panel.  They’ll go to a ordinary solicitor, somebody they’ve used before perhaps for buying the house or whatever and they will then find that’s not somebody who has the same level of expertise or the same familiarity with the system as those who are working in it day by day and who are on the childcare panel. 

 

 

Allan Urry:  It does seem to put parents at a significant disadvantage?

 

 

Prof Lyon:     It does and I personally have always argued that those representing parents should undergo the same process as those on the childcare panel and should be members of the childcare panel.

 

 

Allan Urry:  This isn’t the only anomaly, which sets the family courts apart.  Proceedings like the ones which take place in the building behind me, are effectively a risk assessment, which put the interests and welfare of the child first.  As in other civil cases, judges have to be satisfied on the ‘balance of probabilities’ before they make an order.  It’s a lower standard of proof than criminal cases, which require ‘beyond reasonable doubt’. . And there’s no jury deciding on guilt here.  Instead judges have the difficult task of trying to look into the future to predict what might happen to children.  That can sometimes mean a consideration of evidence, which might be ruled as inadmissible in the criminal courts.  At its worse that can leave unproven allegations hanging over those involved.

 

 

Naomi:    My daughter was absolutely petrified when she’d seen the policemen through the window.  She just flew into the wardrobe and hid.  And I went in to get her out from the wardrobe and brought her into the lounge and sat on the sofa with her and she was just hysterical, clinging round my neck and pleading with me that she could stay with me. 

 

 

Allan Urry:  A family on the run.  They’d already had one child, a son, taken into care.  Faced with the prospect of their daughter going the same way, her grandmother absconded with her.  The child’s parents found out where they were staying at an address in Scotland, and made their way there, they say with the intention of bringing them both home.  But the disappearance and caused a hue and cry in the northeast of England, where the family lived and police tracked them down.  The mother whose name we’ve changed to Naomi was confronted at their Scottish hideaway:

 

 

NaomI:    The police all come into the house and it was just a mass of police officers.  She just didn’t even understand what was happening.  Eventually they informed me that one of them was a social worker and one was a child protection police and my daughter was to go with them.  My daughter at that point came totally hysterical and just wrapped herself around me and screamed hysterically.  They allowed this to happen for a little while and then they told me if she didn’t go with them now  [um]  at this moment, they would remove her by force.  So it was up to me whether my daughter got hurted or not.  I had to persuade her to go with them.  So I pleaded with her to go with them. 

 

 

Allan Urry:                      The family had become disenchanted with what they regarded as an unfair process, which had been triggered by concerns about Naomi’s son.  The boy had special needs and a complicated medical background, for sometime doctors couldn’t entirely agree about the conditions from which he appeared to suffer.

 

For the family they were very real conditions, but concern began to grow that Naomi, the mother, may have been suffering from Munchausen syndrome by proxy.  That would mean she was fabricating or inducing illness, convincing doctors to treat her son for conditions he didn’t have because she craved the attention the medical interventions brought about.  The boy’s mother bitterly contested this accusation.  Naomi thought her son had epilepsy.  She claims she’d seen him have fits, including somewhere he became vacant, known as absences.  She says during a period in hospital, where he’d been admitted for tests, staff had seen them as well. 

 

 

NAOMI:    The nursing staff had seen absences and other types of seizures that my son had, had witnessed drop attacks and again noted this all down within the hospital records.

 

 

ALLAN URRY:  What’s a drop attack?

 

 

NAOMI:    They completely go from a standing position to a drop.

 

 

ALLAN URRY:  Collapse on the floor?

 

 

NAOMI:    Yeah just collapse.

 

 

ALLAN URRY:  And who was reporting that they’d seen that?

 

 

NAOMI:    It was a play coordinator that was actually in the play hall with the children, had witnessed the first one and then witnessed another two after that one, this was in hospital.

 

 

ALLAN URRY:  Did the Court hear this evidence?

 

 

NAOMI:                One of the doctors came forward and actually argued completely with the judge and with local authorities, to stick up for his staff, that they did see the seizures.  But the judge just said it didn’t seem to matter.  He was more of the opinion of, that I’d convinced everybody else to see things that weren’t there. 

 

 

ALLAN URRY:  It wasn’t only what the court disbelieved but other issues raised by medical experts, which angered the family.  Medical assessments had been made commissioned.  One was from a paediatrician who made a most serious yet unproven allegation.  Thirty years ago the boy’s grandmother, who we’re calling Mary, had lost three of her children when they were young.  Twin sons and a daughter had died within the space of twelve weeks.  This to the paediatrician looked suspicious.  He made further inquiries and decided it was highly probable Mary had suffocated or poisoned them.  He further suggested that years later she tried to suffocate her grandson, a possible explanation for his brain damage.  And that it was she who was responsible for passing down to the boy’s mother, her own daughter, the behaviour of Munchausen’s or MSBP as it’s sometimes known.  For Mary, this exhumation of the past was an outrage.

 

 

MARY:     It is horrendous to watch your children die.  It was devastating to the family, to lose one child, but to lose three, going from one hospital, general hospital, with two children in different hospitals, and then to try and bury three children after all this, really was something I couldn’t even comprehend.  But I got through it.  But the idea of thirty odd years later someone brings up this wild mind suspicions that I’d murdered him or her.

 

 

ALLAN URRY:  There were post mortem examinations on two of your children weren’t there?  What did those post mortems examinations show?

 

 

MARY:     The post mortems examinations on the first twin showed that he died of heart failure around about the second or third day that he entered hospital.  They had kept him artificially alive to try and do tests on him.  I wasn’t aware of this at the time.  It was only after I read the reports, which was about … about two, three years ago, I just got the reports on them.  And I found it quite hard to take that, you know, that although I’d been standing at that child’s side, I thought he was gonna survive, they’d no chance of surviving.  When the other wee boy died, which was about seven weeks after my daughter, and they eventually told me that yeah, the children had Cystic Fibrosis.  He had had a terrible death when I read through his records because he had deteriorated, this was the other twin, and in other words didn’t have any chance of surviving from day one.  And I find it very hard now, to believe that someone could say I murdered him or her.

 

 

ALLAN URRY:  It wasn’t only the seriousness of accusations, which have grieved Mary.  She believed it was the foundation of the expert’s argument, that she and her daughter harmed children, and that therefore her grandson and granddaughter should be taken into care.  But it’s a feature of the family courts that you must be made a party to the case and Mary was not.  It was her daughter and son-in-law whose suitability as parents was at issue. Nevertheless with such an accusation hanging over her, Mary wanted a chance to be heard.

 

 

MARY:     I went forward and handed the Judge a small statement and asked him straight off for the proceedings to be stopped.  Now I felt that now I was aware that not only had people said things about me that was wrong and I wanted a chance to come in and bring my legal back into Court and he totally flipped on me.  He went on, “Under no circumstances am I stopping this court for you.  I have already ruled that you’re not gonna be allowed in this court”.  And I had quite a battle with the judge about it, to the point that I went to the, the stenographer, “I want that recorded in the records, that’s twice this man’s refused me in here to defend myself and yet I’m being accused in this Court”.  And he told me just to more or less quieten down. 

 

 

ALLAN URRY:  But were you actually being accused of anything in the Court?

 

 

MARY:                 To me yeah, according to this professor’s records I was being accused of murdering my children.  It says that I intentionally suffocated ... it couldn’t be ruled out that I intentionally suffocated or poisoned them.  To be me that’s being accused. 

 

 

ALLAN URRY:  There is a technical difference isn’t there, it couldn’t be ruled out is a bit different

 

 

MARY:     Yeah

 

 

ALLAN URRY:  to saying that you did it?

 

 

MARY:     But not to me it’s not.  Not to me, that in his opinion, it couldn’t be ruled out that I intentionally suffocated.  Of course it could be ruled out.  I found the records a year and half later.  If they’d found the evidence on these children, of course it could have been proved that I didn’t have any wrongdoing with these children and this was weighing against my grandchildren, to take them, to prove that I was a major Munchausen mother and had taught my daughter to be MSbP and therefore my granddaughter maybe tainted.  I felt I had an awful lot to get into that courtroom to fight for and I wasn’t allowed.

 

 

ALLAN URRY:  In the end the Judge decided to discount the theory that Mary may have killed her children.  But he was persuaded by the rest of the paediatrician’s case against the parents and by concerns raised by the other medical experts.  He ordered that boy and his sister be placed in care.  The family haven’t seen them for three years.  For them and others families who protest their children were wrongly taken, the Government appears to be offering some hope.  Convictions overturned on appeal in the criminal courts have freed mothers wrongly jailed for killing their children.  Last month the Solicitor General, Harriet Harmon, told MPS the ruling left her concerned about the implications for the care process:

 

 

Harriet Harmon:    We will make sure that we recognise that not only injustices done in the criminal justice system, but any potential injustices in care proceedings are identified and acted on.

 

 

ALLAN URRY:  But since that announcement on the 20th of January, it’s all gone quiet.  We wanted to interview Margaret Hodge, the children’s minister, on this matter, but she declined.  Her department has been given the responsibility of deciding what to do next.  A spokeswoman told us, “The department is to consider how it might identify any injustice in care proceedings, before considering the next move”. 

 

It’s clearly a complex area of acute sensitivity, but for the Conservative spokesman on health in the House of Lords, Fredrick Howe, there’s a need for urgency:

 

 

Lord Howe:    Over the last four years, I have received more letters than I can count, more emails that I count, from parents who have suffered exactly the same kind of torture, all the time protesting their innocence.  Now of course, in my position, I’ve got to be very careful, it is all and well, a parent saying that they are innocent of abusing their children.  You’ve got to be careful that they aren’t trying to hoodwink you.  But time and again, I have found that the circumstances of children being taken into care, or even in sometimes into adoption, are so horrifying as to the apparent ease which with this has happened, principally on the strength of expert evidence in family courts, that I have made it my business to bring this issue to the Government’s notice.  We cannot put wrongly accused people in that position, difficult as it is, this review has to be undertaken.

 

 

ALLAN URRY:  It’s a vast undertaking though isn’t it, particularly with all the paperwork involved in these cases, many of which are highly complex?

 

 

Lord Howe:    Highly complex, I have no allusions about that.  It will take time.  But are we really saying that it shouldn’t be done?  The removal of a child from his or her parents is one of the most draconian things that a state can do and if the state has made a mistake, then the state has got to take steps to correct it. 

 

 

ALLAN URRY:  We wanted to interview the President of the Family court division, Dame Elizabeth Butler-Sloss, about the issue but we were told she was too busy to accommodate us.  For David Spicer, a barrister who chairs the British Association for the Prevention of Child Abuse and Neglect, there should be no rush to judgement.  He warns against applying the rulings of the Appeal courts in criminal cases to family hearings:

 

 

David Spicer:            In the criminal jurisdiction, the concern of the Court is to determine whether or not a defendant has been guilty of committing particular acts and the Court has to be sure that they have and if there’s a doubt.  Then the defendant is entitled to be acquitted.  In the jurisdiction, which is concerned with the welfare of the child, the decision and judgements, which have to be made, are more complex.  If there is a risk that someone may severely injure a child in the future, then decisions have to made to remove that child.  Now in stark terms, that may mean, that children may be removed from parents, inappropriately.  But that stresses the need to be extremely cautious in the consideration of the material and the evidence that justifies that decision being taken.

 

 

ALLAN URRY:  But if that does happen then parents just have to live with it?

 

 

David Spicer:            Well they have to live with it in the sense that within any system, there are going to be cases in which the outcome is not the appropriate outcome.

 

 

ALLAN URRY:  Ministers and senior judges must decide what will happen for those who say they should’ve been allowed to keep their children because expert evidence was wrong.  But the day-to-day decision making about whether to take a child into care is made not in the higher courts but by the lowest tier of the judiciary.  It’s actually magistrates who issue orders in 70% of cases.  For Professor Judith Masson of University of Warwick’s school of law, this is cause for concern: 

 

 

Prof Masson:           One might have thought that within a system that has specialist judges, that we would at least have a specialist county court judge or a district judge hearing these cases, rather than a lay magistrate, who probably hears cases very, very rarely and can’t develop an expertise or the sort of, confidence and independence that the professional judiciary have to make difficult decisions. 

 

 

ALLAN URRY:  Don’t magistrates have training in this area?

 

 

Prof Masson:           Yes, of course magistrates have training.  But I’m not sure that it equips them for making such difficult decisions.

 

 

ALLAN URRY:  How much training do they get?

 

 

Prof Masson:           Most magistrates, who deal with this work, also deal with criminal work.  So any training that they have during the year has to be divided between their family training and their criminal training and of course magistrates only have a limited amount of time they can give.  So they have relatively few hours of training a year and that would have to cover all their family work and all their criminal work. 

 

 

ALLAN URRY:  It’s magistrates who decide whether to grant orders to local authorities arguing pressing and serious circumstances.  They are known as emergency protection orders or EPOs.  New research seen, by File on 4, shows that in some parts of the country, half of all these applications are heard without the parents’ or children’s representatives even being told they’re taking place.  They are known as ex-parte applications.  Judith Masson of the University of Warwick made this startling discovery during a three-year study of EPOs.  When Prof Mason compared court records with government statistics she also found the official figures underestimated by as much as 50%, the numbers of emergency orders being brought before magistrates. 

 

 

Prof Masson:  Published statistics suggested that the number of emergency protection orders had declined during the 1990’s.  But when we got the figures from the Court Service, it seemed that they were constant and they were about 50% higher for the current year than published in the judicial statistics.  So a lot more of this was going on then appeared from the published statistics. 

 

ALLAN URRY:  And why is that important?

 

 

Prof Masson:           These are draconian orders and in many cases, they’re made without proper representation of either the parents or the children.  So the case goes before the Court and the Court is only hearing the local authority’s side of the case and in those circumstances the court has really no alternative but to make the order that the local authority is asking for.  Once a child is separated at the beginning of proceeding, it’s going to be very difficult to get the child back. 

 

ALLAN URRY:  A case in which the European Court of Human Rights ruled against the UK shows just how severe the consequences of an emergency protection order can be.

 

 

PAULA:  Unfortunately we’ve moved house twice so far already and my husband keeps saying when are they gonna go away and they cover this bedroom wall from almost ceiling to floor. 

 

 

ALLAN URRY:  In a bedroom she’d hope would be her daughter’s, there is instead a mountain of legal papers.  It’s the evidence used against a mother, we’re calling Paula, in care and adoption hearings, she has them stored in fruit boxes from a local supermarket. 

 

 

PAULA:  People used to laugh at me ‘cos I was going in with this trolley with all banana boxes, while all the big lawyers and QCs had their nice black trolleys full of bundles instead of me.  So here was this mother going in with all these banana boxes. 

 

 

ALLAN URRY:  Paula’s daughter was born in England to her second husband.  She’s an American citizen with two children by a previous marriage in the United States, there she’s been found guilty of abusing one of them by inappropriately giving him laxatives.  A court on California sentenced her to three years probation but stopped short of jailing her.  When her first husband found out she was remarrying he alerted the American authorities.  They contacted social services in England, who began care proceedings, concerned for the welfare of her then unborn daughter.  Paula denied any wrong doing either to her unborn child or to her son in America.  But eventually the High Court in England had to make a final decision about who should have responsibility for her daughter, by this time born and in temporary care.  The hearing was expected to last for four weeks.  But in day one her legal team withdrew, saying she was instructing them unreasonably.  The judge refused Paula’s application for a full adjournment to instruct new lawyers fearing any delay would not be in the interest of her baby. 

 

 

PAULA:  I asked the court for an adjournment and they gave me the Friday and over the weekend and made me come back on the Tuesday and start.  I couldn’t find anybody.  You tried to call somebody on a Friday … no one would take the case. 

 

 

ALLAN URRY:  Did you want a lawyer or did you want to fight the case yourself?

 

 

PAULA:  No I wanted a lawyer but my solicitor had informed the Judge that my legal aid certificate had been revoked and that’s why they were allowed to withdraw.  It took me until Monday to find out that my legal aid was still intact.  I never had a chance to try and find a lawyer when I found my legal aid had been, was still existed.

 

 

ALLAN URRY:  But the judge took the view that you were competent to run your own case, didn’t he?

 

 

PAULA:  That was really strange, the local authority were trying to say I am a personality disorder and that I was deceitful.  I was emotional and this was gonna be the hardest most emotional fight that I’d ever had and they were denying me legal representation to bring the case forward.  Even if I knew the material, I still didn’t know English law.  I wasn’t a barrister or a lawyer.

 

 

ALLAN URRY:  This was a case of exceptional complexity with vast amounts of documentation and much expert evidence.  Others who were in court did have QCs, barristers and solicitors, they included the guardian acting independently for her child and the Local authority, which had applied for the care order.  But for Paula there was only herself and a friend who was allowed to take notes.  Barbara Hewson, a QC who’s reviewed what happened in this case says it put the mother at an exceptional disadvantage during a time of high emotion:

 

 

BARBARA HEWSON:  On one occasion she burst into to tears and left court and refused to carry on.  But that evening someone from the local authority and a representative of the guardian, who was acting for her daughter, came to visit her at home, because the judge wanted her to carry on.  She did so.  But I think the difficulty was that she had no idea how to present her case in a way that would help her in front of an English judge and she had no idea about how to go about cross-examining the experts.  She did her best.  But unfortunately the accusation that was made against her was that she was suffering a syndrome called munchausen syndrome by proxy, which not only meant that she was liable to harm her child by pretending that the child was sick when it wasn’t, but also that she was in denial about her condition.  And so therefore the more she tried to challenge what was being said about her, the more this looked as though she was simply reinforcing the diagnosis that had already been made, which was that she was someone who was in complete denial anyway.  So in a way, it was particularly harsh to make her fight her case herself because she did more harm than good, by defending the proceeding. 

 

 

ALLAN URRY:  There’s no requirement in English law for legal representation in civil hearing.  But Barbara Hewson took the case to the European court of human rights.  It ruled against the UK. 

 

READ:     “The principles of effective access to court and fairness require the assistance of a lawyer.  The procedures adopted not only gave the appearance of unfairness but prevented the applicants from putting forward their case in a proper and effective major on the issues which were important to them. 

 

ALLAN URRY:  Such were the complexities involved the Court itself began to overlook important matters.  There were in fact two sorts of proceedings running along side each other, overseen by the same judge.  As well as the care hearing, the local authority had applied for another order, known as a freeing application for adoption.  This adoption process requires parents to forfeit their parental rights.  Up to this point, Paula and her husband had been able to have supervised contact with their child.  But now, unknown to them, and still without a lawyer, the moment had come to argue the case for continuing that contact.  According to Barbara Hewson, this part of the procedure so important for the parents was overlooked by everyone:

 

 

BARBARA HEWSON:             Because it was such a technical error of the law, they were not well equipped to deal with it themselves and they were also not, I think, able to realise that at that point, it would have been open to them to ask the judge to deal with the issue of future contact with the child.  But in fact all the judge did was to leave it up to the local authority to arrange for what is called ‘letter box contact’ which in this case, the authority planned to Christmas and Birthday cards for the little girl.  It does look as though the court rather lost sight of the need to protect that aspect of the relationship.  Because what then happened was that she was adopted and her new family decided they didn’t want this letter box contact with the natural parents and they just wanted a letter once a year, but not on her birthday or at Christmas.  Which I think the natural parents felt was really the last straw. 

 

 

ALLAN URRY:    Once again the

European Court
ruled the parents’ rights had been breached.  They should have had a lawyer to put their case for contact.  The Court also said it had been draconian to proceed so quickly with the freeing application, which came just a few days after the care hearing.  The European Court of Human Rights made one other important ruling about the most shocking aspect of this case, what happened to Paula, on the day she gave birth.  There were complications during her pregnancy.  Medics decided to perform an emergency caesarean in hospital.  But Paula’s blood pressure shot up and she was very weak.  It was then that social services arrived to take her baby away.  

 

 

PAULA:  Because of my blood pressure and the medical problems I lost a pint of blood during the delivery and other things.  My obstetrician told them to wait.  They told them that my health was at risk if they tried to remove the baby.  They decided not to wait any longer and after our friends and my mother-in-law and my father-in-law has stepped out of the room.  Social services came in and handed the court orders about 4 o’clock in the afternoon.

 

 

ALLAN URRY:  What condition were you in at that stage?

 

 

PAULA:   I was still drowsy.  I was in extreme pain.  I had headaches from the high blood pressure.  I’d just delivered by an emergency caesarean.  I mean, it’s a big thing just to have an emergency caesarean operation alone, yet alone someone come in and say they’re gonna take your baby away from you.  They were saying that they were taking the baby away from us.  They had a court order to remove her from the hospital.  I didn’t understand why she couldn’t stay in the hospital even if they put her in the special baby unit, which is locked down.  It was even on a different floor of the hospital and not being able to walk, I couldn’t get anywhere near her.  I was even fearful for the baby I didn’t think she should be leaving the hospital at 12 hours.  I was holding her and it was very difficult to … it took awhile before they could even get her out of arms.

 

 

ALLAN URRY:  How did they do that?

 

 

PAULA:  The social worker just came over and my husband kissed her good-bye and so did I and they took her away.

 

ALLAN URRY:  And the way in which all that was handled was another breach of their human rights, the

European Court
said:

 

READ:     “The taking of newborn baby into public care at the moment of its birth is an extremely harsh measure.  There must be extraordinary compelling reasons before a baby can be physically removed from its mother against her will immediately after birth as a consequence of a procedure in which neither she nor her partner had been involved.”

 

 

ALLAN URRY:  Paula was awarded 12,000 euros but it had no powers to return her child.  For the lawyer, Barbara Hewson, the case highlights a fundamental shortcoming of the English system, that it forces parents and child further apart, rather than trying to bring them together:

 

 

BARBARA HEWSON:  In England, the interests of the parents and the child tend to put in opposition so there’s a great deal of antagonism between the child’s representative say and that of the parents.  And I think this causes problems because I think in the case law of the

European Court
the emphasis is very much on the need for local authorities to try and rehabilitate the family.  It’s rare for Strasbourg to decide that a decision to take a child into care is wrong.  But what the Strasbourg court has said is once the local authority has had an opportunity to investigate the matter and find out what the nature of the problems are, it’s then obliged to take all reasonable measures to try and rehabilitate the child with the family and it does seem as though in England not enough is sometimes done.  And there is a tendency to write off the natural parents as hopeless or beyond help, which may be unfair in the circumstances, although it may reflect the fact that local authorities don’t have enough resources actually to help these families resume their lives together. 

 

 

ALLAN URRY:  The Government is now trying to decide what to do about cases in the family courts in which discredited expert evidence may have played a significant part, because of these cases public confidence has been shaken.  But for Professor Christina Lyon, author of a leading textbook on child abuse, the disquiet should not overshadow the most important function of care proceedings:

 

 

PROF LYON:     If we’re not to have the appalling spectre of many more children dying and we already face too many children dying in this country every year at hands of members of the family, then we really do have to consider whether we want to throw the baby out with the bath water and we really have to question whether what we’re about is seriously looking at protecting children or be it that on occasion it may mean that the rights and interests of parents is seriously prejudiced.  We have to look at that in the context of European convention on Human rights and say to ourselves, well we have a duty to protect the children and at the same time we have a duty to protect the parents’ and the child’s rights to a private and family life and we have to try to strike that middle balance in order to ensure we protect children.

 

 

ALLAN URRY:  But the cases we’ve highlighted in this programme suggest the right balance has yet to be struck.  No one we’ve spoken to has suggested that children should be less protected.  But there is concern that in some cases the rights of parents are being denied.  Any reform will also need to include more transparency, so that justice can be seen to done

 

 

 

The reporter in this week’s File on 4 was Allan Urry and the programme was produced in Manchester by Andy Denwood.

 

 

 

Family courts: File on 4 this week examines Britain’s Family Court system.

 

Back to Articles

 

Realtime website traffic tracker, online visitor stats and hit counter