The problem with family courts
by Barbara Hewson
In the latest 'cot death' controversy case,
the Court of Appeal in London on 19 January 2004 quashed Angela
Cannings' convictions for murdering two of her children. The
Court expressed concern about expert evidence given at Cannings'
trial by paediatrician Professor Roy Meadow, and indicated
that 'where a full investigation into two or more sudden unexplained
infant deaths in the same family is followed by a serious
disagreement between reputable experts about the cause of
death?the prosecution of a parent or parents for murder should
not be started, or continued?.' (1)
In an unprecedented move, the attorney general
has announced that over 250 cases where parents were convicted
of harming their children following evidence from Roy Meadow
should be urgently reviewed. It is estimated that over 5000
civil cases, where family courts separated children from their
parents on Meadow's advice, also have to be reviewed (2).
'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' (3), the
solicitor-general Harriet Harman has told Parliament.
This is not going to be straightforward. According
minister for children, Margaret Hodge, 'any parent who feels
that a judgment was made on the back of evidence from Meadow
would be entitled to go back to the courts and try to have
the case reopened and would be eligible for legal aid' (4).
But why should parents who have lost their children through
possible miscarriages of justice have to go back to the same
courts that let them down in the first place?
Unlike the Court of Criminal Appeal, the family
courts have no experience of righting miscarriages of justice.
What is needed is a public inquiry into this whole situation,
which would need to be chaired by someone with no ties either
to the family courts, or to child protection work.
There are a number of reasons why we are in
the present mess. Historically, child abuse was assumed to
be a marginal problem, and the draconian laws introduced to
tackle it received little attention or debate. Now, child
abuse is perceived as a widespread problem, with the consequence
that more and more families are exposed to intervention.
Philip Jenkins, author of Intimate Enemies:
Moral Panics in Contemporary Great Britain, has noted how
ideas of child abuse changed from the 1960s onwards. From
the 1980s, official concerns shifted from the idea of physical
to sexual abuse. He explains this development in terms of
'the influence of feminist theorists and pressure groups;
of charities and interest groups, above all, the National
Society for the Prevention of Cruelty to Children (NSPCC);
and of the bureaucratic needs of social services agencies.'
(5) This led to the creation of agencies and
units with full-time responsibility of detecting and combating
child abuse. In the 1990s, attention was increasingly paid
to more arcane, medicalised forms of abuse, such as the now
notorious 'Munchausen syndrome by proxy'.
Jenkins notes that many reforms introduced in
the name of
child protection in recent decades have involved sweeping
attacks on traditional Anglo-American legal rights and protections.
These rights include: the right to due process, the right
to be presumed innocent until proved guilty, the right to
be tried in public, the right to confront one's accusers,
and the right to 'equality of arms' (that is, not to be tried
under significantly less advantageous conditions that those
enjoyed by one's opponent). Other protections, such as restrictions
use of hearsay evidence, the right to consult the expert of
one's choice, and even the right to communicate in confidence
with one's lawyers (legal professional privilege) also suffered.
Such traditional legal protections were challenged by what
Jenkins calls 'therapeutic values, the sense that neutral
professionals were working in the best interests of the child
and should not be hampered by outdated technicalities' (6).
Our child welfare courts have therefore become accustomed
to a model of therapeutic jurisprudence, in which the best
interests of the child are paramount (7). This has certain
analogies with a Soviet-style conception of justice, which
emphasises outcomes over processes, and which requires the
judge to carry out social policy, rather than act as an
This has ominous consequences, as a US judge explains.
'Therapeutic jurisprudence marks a major and in many ways
a truly radical shift in the historic function of courts of
law and the basic purpose for which they have been established
under our form of government. It also marks a fundamental
shift in judges' loyalty away from principles of due process
and toward particular social policies. These policies are
less concerned with judicial impartiality and fair hearings
and more concerned with
achieving particular results', writes Arthur Christean. He
adds: 'There is great danger to our freedoms and way of life
when courts of law abandon justice and the rule of law in
favour of doing things to people for their own good and because
it is deemed to be in their best interest or the best interest
of the state.' (7)
The therapeutic model has had a corrosive effect
in UK family courts, which have become inured to the absence
of the normal safeguards for litigants. This in turn causes
serious problems for parents accused of harming their children,
or of posing a potential risk to them.
At present, parents accused of posing a threat
to their child must take on not one, but two arms of the state:
the local authority, and the Orwellian-sounding CAFCASS, which
acts for children. One or more social workers, or experts,
may interview a parent, but no tape-recording is made. Sometimes
the parent is not allowed to have anyone else present, even
to take a note. Parents accused of posing a risk to their
child may also be pressed to admit 'guilt' in order to get
the child back. As many parents recognise, this is a catch-22.
If social workers decide that a child should
be removed from its parents because there are concerns about
its safety, they can get an Emergency Protection Order (EPO)
from a magistrate, without the parents having the right to
be heard in opposition. The evidence put before the magistrates
is not formally recorded in an affidavit, and the order can
then be presented as a 'fait accompli'. This can set in train
a destructive downwards spiral of intervention, culminating
in official demands that the
child should be separated permanently from its parents by
adoption. Even newborn babies can be taken away at birth
and subsequently put up for adoption: an extraordinarily harsh
measure, which has been criticised by the European Court of
Human Rights in Strasbourg (8).
Family courts in this country operate in a climate
of extreme secrecy. Both press and public are routinely excluded.
Sometimes parents may be injuncted from telling anyone that
child protection proceedings have been initiated against them.
They are not supposed to show documents in the case to anyone
It is hardly surprising if abuses occur. In
May 2003, a judge noted examples of a social worker lying
both to a child's mother and even to a court, on the instructions
of two superiors. The judge castigated the social worker for
a 'grossly unprofessional and wholly improper stratagem' and
the local authority for 'wholly unprofessional and quite shocking
conduct' (9). It seems that nothing was done to punish the
local authority, however, beyond the judge's 'censure' and
an order that the local authority pay legal costs. This seems
Before the Second World War, the courts recognised
public's right to be present, even in family hearings. Lord
Atkin said in 1936, 'Justice is not a cloistered virtue.'
(10) Lord Blanesburgh said: 'publicity is the authentic hall-mark
of judicial as distinct from administrative procedure.' (11)
There are powerful arguments why we should revert to the old
custom that justice in family courts should be done in the
is an obvious public interest in society being allowed to
know what sorts of parental misconduct warrant social services
intervention these days.
The glare of publicity would also force local
authorities to ensure that applications are properly prepared,
and that social workers or expert witnesses did not abuse
their position by making unfounded or misleading statements.
And experts giving evidence would have their claims subjected
to public scrutiny, and critical assessment by their peers.
All in all, a case can be made for taking away
child protection work from the civil courts, and leaving the
prosecution of really serious abuse to the criminal authorities.
(1) Regina v Angela Canning  EWCA
Crim 01, paras. 17, 178
(2) 'Harman extends cot death review', Guardian,
20 January 2004
(3) 'Care Case Review follows cot death ruling',
Guardian, 21 January 2004
(4) 'We can't reunite thousands of mothers
with children wrongly taken from them', Sunday Telegraph,
18 January 2004
(5) Intimate Enemies: Moral Panics in Contemporary
Great Britain, Philip Jenkins, Aldine de Gruyter, New York,
1992, p16. For analyses of child protection scares in the
United States, see Threatened Children: Rhetoric and Concern
about Child-Victims, Joel Best, University of Chicago, 1993;
Moral Panic: Changing Concepts of the Child Molester in Modern
America, Philip Jenkins, Yale University Press, 1998
(6) Intimate Enemies,Jenkins, p125, p129
(7) Section 1(1) Children Act 1989
(8) Therapeutic Jurisprudence: Embracing a
Tainted Ideal, Arthur G Christean, January 2002, FOU 02-01.
Christean begins by examining the vogue for 'drug courts'
and goes on to examine child welfare law
(9) P. C. & S. v United Kingdom, (2002)
35 EHRR 1075, judgment paras. 11, 132-3
(10) A Metropolitan Borough Council v JJ and
S (a child by his Guardian Ad Litem)  EWHC 976 (Fam).
See paras. 15-16, 18, 24, 74, 81
(11) Ambard v AG for Trinidad and Tobago 
AC 322 at 335
(12) McPherson v McPherson  AC 177 at
Reprinted from :
see also: www.fathercare.org/expert.htm