Secret
courts that steal our children
http://www.timesonline.co.uk/article/0,,2092-735862,00.html
Times
- 6th July 2003
Kafkaesque children’s
courts sitting in private are playing God with the families that come
before them, writes Stuart Wavell. They sound like a chilling legacy
from the bad old days of the Soviet Union - secret courts that have
taken thousands of children from their families and put them into foster
homes or farmed them out for adoption.
There can be
no appeal nor legal redress for most traumatised families. Lone judges,
sitting without a jury, sever loved ones from each other on the word
of omniscient medical “experts”. Any parent foolhardy enough
to protest to the press risks dire penalties.
Yet this is
the Kafkaesque nature of family courts in England and Wales - an iceberg
of civil litigation that lies submerged beneath a few high-profile criminal
cases that hit the headlines. In a blaze of publicity last month, the
pharmacist Trupti Patel was found not guilty of murdering her three
babies. Earlier this year the solicitor Sally Clark was freed from jail
after being wrongly convicted of killing her two baby sons.
Both cases
cast doubt on the credibility of Professor Sir Roy Meadow as an expert
medical witness - now under investigation by the General Medical Council
- but the joyful outcomes partly reflected the high standard of proof
required in criminal cases.
By contrast,
family courts do not demand that a doctor’s diagnosis of child
abuse should be beyond reasonable doubt, but rather on the balance of
probability. The courts’ culture of secrecy, sternly policed with
the commendable aim of protecting children’s identities, has had
the unintended effect of shielding experts’ flawed deductions
from public scrutiny or comment. As a result, an unseen and unheard
process of winnowing children from their parents is taking place, largely
on the say-so of doctors whom they have often never met.
According to
Beverley Beech, chairwoman of the Association for Improvements in the
Maternity Services: “It is, I believe, an underestimate to say
hundreds of children have been taken away from their families. It must
now run into thousands. I have seen with my own eyes newborn babies
seized from their mothers in maternity wards.”
Statistics suggest
that each year thousands of families undergo the ordeal of having to
prove their innocence against false accusations of child abuse. According
to government figures in 1997, there were 160,000 reports of child abuse
in England and Wales, of which 120,000 were ruled false. Of the remaining
40,000 cases, 25,000 were put on the “at risk” register,
but the number of people pursued through the courts and separated from
their children is unknown.
The main instrument
of the final processing is the family court. When a child has died,
and in other serious cases, a criminal prosecution may be pursued. William
and Michelle Carter (not their real names) lost their four children
in 1999 on the sole evidence of Meadow at a family court; the elder
two, aged 17 and 14, are in foster care and the younger ones, aged eight
and six, have been adopted.
The family’s
future was decided at the family division of the High Court in London,
the largest branch of the system and the scene of a protest last week
by angry parents, many of whom have had children taken from them on
Meadow’s evidence. Most cases are heard in county courts, presided
over by specialist district judges. Children, supposedly protected by
hearings in camera, do not appear in person but are usually represented
by an independent social worker.
The Carters’
nightmare had begun nearly a year earlier, when their youngest daughter,
then 16 months old, fell ill and was taken to hospital where she suffered
multiple heart attacks and a stroke. Although she made a full recovery,
six months later social services contacted the Carters to say a urine
sample taken from the girl had shown traces of a powerful drug. Police
dismissed the case after the Carters explained that one of the tablets
prescribed to their eldest daughter to stop her wetting the bed must
have fallen on the floor and been accidentally swallowed by the infant.
However, the
Carters ended up in a family court where Meadow concluded that the girl
had been poisoned by her mother while the latter was suffering from
Munchausen’s syndrome by proxy - the condition coined by Meadow
in1977 for women who hurt children to draw attention to themselves.
The next day the children were taken away. The Carters’ were told
to go home and forget they ever had four children.
That night Michelle
attempted suicide. “We were hung, drawn and quartered by Meadow,”
says William. “He never backed up his diagnosis with evidence.
Why was a paediatrician giving evidence on toxicology?” The best
the couple can hope for is eventually to get their elder two children
returned to them. “Unfortunately,” adds Carter, “it’s
too late for the younger two.”
Cases involving
Meadow may just be the tip of the iceberg. To stop more such miscarriages,
Carter would like to see several changes to family courts, notably a
bench of three judges instead of one and the proceedings open to media
coverage - while protecting children’s identities by the same
process as applies in the criminal courts. Recently social services
asked him to stop talking to the press. “They are threatening
me with contempt of court, but I have done nothing to identify the children.
We know we have done nothing wrong.”
Such threats
are not uncommon; a family court’s punishment can be draconian.
Last month Mark Harris won a 10-year fight to gain full access to his
three daughters. But for picketing the homes of judges who had denied
him and other desperate fathers access to their children, he was sentenced
to 10 months in prison for contempt of court.
Marilyn Stowe,
a Leeds family solicitor, says that protection of children is the family
courts’ paramount concern. “But if any injustice occurs,
the fallout is that it’s very hard to make it public. And the
court relies so heavily on the evidence of independent experts.”
Technically, there is a mechanism for appeal, but the grounds are so
narrowly defined that few people succeed. “You’ve got to
show effectively that the judge has exercised his discretion wrongly
and made a mistake,” says Stowe.
Some commentators
on the Patel case suggested that the more sensitive family courts would
be a better place to deal with a suspected mother, rather than putting
her through a public ordeal. However, “sensitive” is not
an epithet Mark and Karen Haynes would apply to their harrowing experience
of a family court. In essence, the unexplained death of their son in
hospital and Karen’s subsequent pregnancy resulted in an order
that led to their newborn daughter being seized 20 minutes after coming
into the world.“There was an adversarial element to the court
proceedings,” says Mark.
“Compared
to a criminal court, the family court was a little less formal, but
it was very much a point-scoring game between barristers.” Once
again, Meadow’s opinion - that Karen Haynes had smothered her
son - was believed by the judge, even though seven experts disagreed.
And, once again, the couple were told to keep their mouths shut. To
their dismay, the person appointed to represent their daughter’s
best interests urged her speedy adoption, on the basis that before the
age of two she would forget her parents.“
The guardian
wasn’t independent: she was singing from the same hymn sheet as
the other social workers,” Mark Haynes complains. He, too, wants
the family courts’ secrecy removed and the introduction of their
own independent medical advisers. One of the vaunted advantages of family
courts is that, unlike their criminal counterparts, they do not seek
to blame or punish, but rather to create the best upbringing for the
child.
However, the
consequences of their decisions can be life sentences of misery. Many
parents are effectively found guilty without a trial and cannot erase
the stigma. Even those exonerated of any wrongdoing find it difficult
to shake off the bureaucratic repercussions. When Rioch Edwards-Brown
satisfied a judge that her son’s shaking fit was caused by a difficult
premature birth, she thought that was the end of the matter. “The
judge said, ‘Go home and start your life all over again’,”
she recalls. However, when she took her son to hospital for a check-up
she discovered her case remained on file. “I thought everything
was done and dusted. It turned out I had been cleared by the court but
not by the system.” Every visit to the hospital triggered a follow-up
call by the home visitor. She discovered she represented a potential
threat to her son until he was 18 and could not bring herself to play
with him until he was 7½ in March, when she won her seven-year,
£50,000 battle to have the records amended.
Edwards-Brown
believes many shortcomings would be solved by a diagnostic protocol
she has dubbed Riordan’s Law. She wants babies with potential
“violent shaking” injuries to be seen by brain, eye and
bone specialists within 24 hours of hospital admission and reviewed
after 14 days. “Everything starts and stops with the doctors,
who don’t have to prove their findings,” says Edwards-Brown.
“That’s where we need to concentrate.”
