When journalists ignore source material it is public debate which pays the price

This is re-posted from a post I wrote on the Transparency Project blog here.

Christopher Booker wrote about the case of Ethan Williams in The Telegraph this weekend, in an article entitled :
When judges defy instinct, it is children who pay the price – We were presented with two flatly opposing views of the story of Rebecca Minnock, who went on the run with her son.

You can read the background to this case in our blog post here : The Missing Mum Case.

Most lawyers would be surprised to read a headline that suggested it is somehow wrong for judges not to rely on instinct. We don’t think that judges or journalists should rely on instinct, but it is not part of the Transparency Project’s role to tell Mr Booker or anyone else what their opinion of this or other cases should be. However, we do think it is important to correct some inaccuracies in the report and to give some context. Mr Booker is an opinion journalist, but in our view all journalists, whether investigative or opinion ought to check basic facts before publication. We have alerted The Telegraph (via twitter) of the fact that we think the article is inaccurate (and will point them to this blog post for details), and continue to await any reply. We have also asked them to link to the original judgments here so people can form their own informed view as to whether Mr Booker is right or not. If a reply is received we will update this blog post*. We offered a version of this article to The Telegraph to publish in the interests of public debate, but they declined.

At the time Mr Booker wrote his article 7 judgments about this case had been published, each of them within a matter of hours of their delivery by the judge. It is reasonable to assume that many readers of the article would not have been aware of the availability or contents of the published judgments, even though they are freely available online, as the public generally would not know where to look and the article does not link to or refer to them. However, an experienced journalist like Mr Booker will no doubt be familiar with how to locate and access judgments. It appears that either Mr Booker has not read the judgments, or he has read them but not fully understood them, or he has read them and chosen to ignore their contents. Or, he does not accept the judgments as an accurate account of the history – but if this is the case he has not said so.

The article identifies Stephen Wildblood QC as “the judge who prompted the mother’s flight by ordering that the boy should be handed over permanently to her former partner, the boy’s father.”

In fact, the judgments make clear that His Honour Judge Wildblood QC was not involved in the case until after Rebecca Minnock had fled. The case had previously been dealt with by a District Judge (a lower level of judge), but had been re-allocated to His Honour Judge Wildblood because the court needed to make orders for the location and return of Ethan, and needed to involve the Tipstaff (a High Court Officer) to do that quickly. District Judges do not have the necessary powers and so Judge Wildblood was passed the case.

Secondly, according to the judgments, it is clear that the mother fled early in the morning of the 27th May (as seen on CCTV and admitted by family members), that is the day of the final hearing where the District Judge decided that Ethan should live with his father. It appears then that the mother fled before the Judge had made her decision, although she almost certainly will have been aware that this order was likely. Rebecca Minnock did not attend the final hearing, and although the judgment tells us she was represented her lawyer will have been severely hampered in challenging the evidence without a client at court.

So it is clear that neither Judge Wildblood nor the District Judge “prompted” the mother’s flight. This is important, because the article insinuates that it is the court is responsible for the conduct of Rebecca Minnock, rather than Rebecca Minnock herself. That suggestion however, is based upon a factual misstatement.

Christopher Booker talks about two “flatly opposing” points of view. One is, he says, the “lawyer’s view” – that of Judge Wildblood. The other, “that of many non-lawyers …was that what the judge had done was a terrible travesty of justice”. In fact we know that the view of the District Judge who made the decision to alter the living arrangements for Ethan was based upon the evidence of an independent child psychiatrist, a local authority social worker and the child’s court Guardian (a social worker appointed by CAFCASS), who all thought shared the same concerns. It seems likely (although the judge does not tell us this in the judgment) that Ethan’s father also held the view that this was the right outcome for Ethan. There is lots of discussion about this case on the internet elsewhere, including from many non-lawyers who see the case as one where the court has rightly taken action to prevent “alienation” of a child from his father by his mother. So, there are definitely two different ways of looking at this case, but it is not accurate to class one as “the lawyer’s view” and one as the “non-lawyer’s view”.

“Even in the eyes of the judge, her only error had been to “obstruct” giving the father contact with his son by making “false” allegations against him. And to tear them permanently apart like this, the contrary view held, was an affront to one of the most basic of all human instincts.”

It is not clear why the words “obstruct” and “false” are in inverted commas, but presumably this is intended to convey that Mr Booker does not accept the findings of the court that Rebecca Minnock had obstructed contact and had repeatedly made false allegations against him. See this extract from the judgment of 8 June, which summarises what had happened in the earlier hearings:

  1. In January 2014 the mother made further serious allegations against the father. She alleged that the father was controlling in his behaviour and also behaved in ways that were sexually inappropriate. In a fully contested hearing in April 2014 the District Judge rejected all of the allegations. Orders were then made for contact with the father to develop; however matters did not progress according to the intentions of the court and a further hearing took place in February 2015. At that hearing there were further issues of fact as a result of allegations made by the mother against the father, all of which the District Judge rejected and, in relation to which the District Judge found that the allegations had been fabricated by the mother to frustrate contact.
  2. As a result of the hearing in February 2015, Ethan began to spend four nights a week with his father and three nights a week with his mother. [my emphasis]

Mr Booker does not say why he thinks these findings do not warrant a response from the court. He says this was Rebecca Minnock’s “only” error, but many experts working with children would say that to prevent a child from having a relationship with his other parent is emotionally harmful, and that making false allegations is emotionally abusive. The court generally takes such actions very seriously, although it is often criticised by fathers and fathers’ groups for not taking prompt or decisive action to stop children from losing their relationship with their father or from being given a false belief system. The judgment of 8 June confirms that the original application made by the father had been for contact rather than to remove the child from his mother’s care, but that as a direct result of the false allegations the court had ordered a shared care arrangement and in May this was altered to have the child living with the father full time.

It is worth noting that the judgments arising from the hearings in April 2014, February 2015 and May 2015 have not been published and as such there is undoubtedly detail that neither Mr Booker nor the public generally have access to. Those judgments may be published in due course, but at the moment these are the best information available. Mr Booker does not assert first hand knowledge of the case himself.

Mr Booker isn’t clear what he means by the “most basic of all human instincts”, but presumably he means the maternal instinct and the “special” mother-child bond. If that is what he means, not everybody would agree with Mr Booker that the relationship between a child and his mother is necessarily any more special than that of a father, or that it should “trump” the need to protect a child from emotionally harmful or abusive behaviour by that mother. He goes on to say that

“in too many cases, the “lawyers’ view” has won out over the “instinctive view” – with results for the children that leave a sense that what has happened is a tragic offence against nature.”

The Family Court operates on the basis of evidence not instinct. This is what Parliament tells the court it must do. Although in this article he is critical of the court for not relying on instinct, in fact he often criticises the court for not basing its decisions on evidence (see here for example).

The Family Court has historically been criticised for being seen to operate on a presumption that children should be raised by their mothers, but for many years now the Family Court has been issuing judgments confirming that no such biological presumption should or does apply. Recent research by Maebh Harding found no gender bias in decision making, although many fathers and fathers’ groups hold the view that in practice there is gender bias against fathers. Equally, some women’s groups criticise the court for favouring fathers and prioritising contact over safety.

 “I am struck by how often judges end up by removing the child from the loving mother with whom it has lived happily since birth, to be handed over to a father with whom it may never have lived at all.”

Mr Booker says he has experience of about 12 such cases. Recent research by Maebh Harding confirms that the success rate for applications for residence is broadly similar as between mothers and fathers, and that a transfer of sole residence is rare. However such cases are “disproportionately likely to be transfers from mum to dad and to feature welfare concerns and children’s services involvement”. 

The other cases that Mr Booker refers to are cases like RS v NS which Christopher Booker wrote about and Lucy Reed blogged about here : Which is better – there’s only one way to find out and here : Fair to Fathers (which provide links to the Booker articles) and this article : Family Judge ignored law over 9 year old girl (we cannot identify a published judgment relating to this case).

There are many cases for which there are publicly available judgments involving judges criticising Local Authorities or other professionals for their conduct, and where higher courts quite rightly criticise the poor decisions and decision making processes of lower courts – sometimes in very strong terms. However, these do not, by and large, seem to be the cases that Mr Booker chooses to write about. Instead he often writes about cases involving children being “wrenched” or “torn” from their mothers, and he writes about “natural maternal instincts : “As she and her baby happily bonded according to the laws of biology..” (see here for example : A Judge with little time for free speech) where Booker appears to suggest that the because the judge is a “childless feminist” she had displayed bias towards the mother).

If Mr Booker’s belief is that it is natural and right for children to live with their mothers and that it is an affront for them ever to be removed and placed in the care of other family members (or even away from their families), he is entitled to that opinion. However, he will inevitably continue to be disappointed by the Family Court, because that is not the law in this country. The law in this country is that a court must operate on the basis of evidence, and that it must make decision that best promote the child’s welfare based on the circumstances for that individual child, and that there is a presumption that both parents should be involved in a child’s life in some shape or form.

Mr Booker’s article is likely to further polarise the debate about this and other cases. It is an area which provokes strong feelings, and on which people often disagree, but it is not as simple as suggesting that it is lawyers versus the rest of the world. Courts are often criticised by both sides of the debate for favouring the other. In respect of this particular case most press focus has been on Rebecca Minnock and why she took her desperate actions, but very few if any reports have explained the lengthy background that led to the court concluding that it was necessary to order her son should live with his father.

*In the meantime we have taken screen-shots of the original article.

A short rant….and….breathe!

This has been brewing for some time. I need to get it off my chest because it is impeding the drawing of a breath of fresh air, like a particularly difficult phlegm bomb (sorry, that is disgusting but it does rather convey the unhealthy and rather unpleasant irritant to my wellbeing that this has become).

The Family Court is variously criticised for –

  • relying on instinct / preconceptions / stereotyped gender based assumptions* about childrens needs (court is biased in favour of mothers / against fathers)
  • not relying on instinct / preconceptions / stereotyped gender based assumptions about childrens’ needs (court is so insistent on promotion of contact it will not listen to mothers who allege dv)
  • failing to have regard to evidence (failing to accept that a piece of evidence proves the thing a person thinks or says it proves)
  • having regard to evidence (specifically, severing of the natural primal unique essential (etc) biological maternal bond is more detrimental than any other harm so the other stuff doesn’t matter, or generally having regard to any evidence that tends to undermine MY evidence, or “I know I can’t prove it but I still SAY it’s true”)
  • failing to apply a sufficiently high standard of proof (i.e. being prepared to make findings on the “more likely than not” basis instead of treating every allegation as untrue unless it can be proved to the criminal standard of “satisfied so I am sure”)
  • failing to apply a sufficiently low standard of proof (if a mother alleges it it is practically criminal to suggest it is not so)
  • failing to act sufficiently swiftly / robustly in the face of allegations of abuse (he is violent / abusive, now why won’t you let me stop contact?)
  • failing to act sufficiently swiftly / robustly / creatively in the face of false allegations (I am not violent / abusive, she if fabricating it, why won’t you do something to stop her alienating my child?)
  • failing to use the tools it has
  • using the enforcement tools it has
  • being secretive
  • being too open
  • too readily / too often removing children from parents
  • not removing children from parents often / promptly enough

It really can’t do wrong for trying to do right. Now I’m no apologist for the Family Court and I don’t think the Family Court is right ALL the time (and nor as it happens does the Court of Appeal)….(And by gum there are LOTS of things that are VERY wrong with the “child protection” and “family justice” systems)… But nor do I think the Family Court is wrong ALL the time.

On the internet, where everyone’s truth is THE TRUTH, any decision which is not consistent with *my truth* means the judge, lawyers, social workers (etc) are paedophiles, child snatchers, corrupt, liars… I *know this* because there is a picture of the judge circulating on facebook with the word “paedophile-enabler” written above his forehead in red. Yes people, the internet is a truly scary place.

Sometimes it feels just a little bit like the Family Court is stuck in the middle of some dysfunctional entrenched conflict that is focused on adult agendas rather than childrens’ needs. Oh, wait….

Sometimes I think that everybody needs to blame somebody and the one person they can all agree on is the judge.

In my dark days it feels like the public discourse boils down to a very long-winded and disguised mantra of “You don’t agree with me. Therefore you must be wrong”. Everybody is chanting, shouting, hissing – but nobody is communicating.

But I ask this : where your truth or your view of another person is fundamentally inconsistent with the person on the other side of the divide (whether that is your ex or a social worker) – how else should we resolve those disputes other than through a court, applying the law and relying on evidence?? What BETTER system is there? What better system could there be?

Trial by instinct? Presumption that children should live with their mothers always? ALWAYS?

Trial by who shouts loudest, by who uses the most colourful or inflammatory language, by who is most dogged and persistent in their denigration of the other, trial by “the things a four year old says must be true” – or trial by who is better at running Facebook campaigns? Should we give the child a line-up of adults she might like to live with and ask them to pick them out?

Easy to criticise. But how would YOU improve it?

Yours despairingly,

 

Answers on a postcard (please send it to Michael Gove not me, I can’t bear to read the replies).

 

* yes, I know I have generalised here as between mums and dads for the sake of brevity – these are the general patterns I see, but of course individual cases have the female and male parties transposed, and indeed not every case involves a male : female pairing.

You can run but you can’t hide

This is a guest post by Sarah Phillimore, who blogs at Child Protection Resource.

NB I will allow comments on this post as I usually do, but I will not permit comments which are offensive or insulting (robust challenge is ok as ever) and I will not permit comments which I consider are or may be impermissible or inappropriate for legal reasons.

 

The sad case of Rebecca Minnock has provided manufacturers of stilts for nonsense with a bonanza couple of weeks. See this post from the Transparency Project if the details of this case have escaped you so far.

Various online groups have unleashed a tsunami of ill-informed and prejudiced opinions against fathers and male judges, their view appearing to be that as women give birth and nurture their child, women are better parents and if they say the father of their child is an abuser, then he probably is, court judgments be damned. Into this fray steps Maypole Women, offering the view of one of their volunteers ‘Karen’ to explain why Rebecca Minnock was on the run : Rebecca Minnock on the run. In brief, this is because the family courts refuse to recognise the importance of primary carers.

No further information about Karen is offered so I can only hope that her qualifications, expertise and experience in child development, law and psychology are impressive, given the confidence with which she asserts some very broad and bold propositions. Nor does Karen want to distract us from her opinions by providing any support for them, via links to any reported cases or published research. But Wikipedia does get one mention.

So if I am about to be very unfair to Karen in my analysis of her argument, if I have actually missed some recent and seismic shift in either law or child psychology I am happy to apologise and admit I was wrong. Disclaimer: there is so much in this article that I think is wrong, I haven’t attempted to debunk each and every example of such wrongness. Please don’t assume that if a particular assertion by Karen goes unchallenged, it means I agree with it. Because I almost certainly don’t.

General points

First, some general points. Karen makes a half hearted stab at reassuring us that she isn’t just talking about ‘mother’s’ as primary carers – family courts are going against nature, ‘whatever the sex of the primary carer’. But Karen is not being honest. It is stated explicitly elsewhere in this article that you only qualify as a ‘primary carer’ if you have a uterus:

The over-riding focus of ‘equality’ obliterates the history of all mankind, the very nature of mankind, in which mothers are primary carers biologically and, whether by nature or nurture, usually psychologically too. 

Way to go family courts! Even your most florid detractors have not previously claimed that you ‘obliterated the history of all mankind’. Any how. At its beating heart, this article revolves around the psychological frailty of some women, who have identified with the role of mother to such an extent that any perceived threat to that status is a threat to their intrinsic well being. Not only must this frailty be recognised and respected argues Karen, it should be honoured and must be reflected in the development of family law and policy.

Karen describes these women thus:

What parent dares put their child first, in the centre of their heart, when the pain of loss – not just of your child, but also of your main purpose and identity in life – can be so devastating?

Because some women react to parenthood in one kind of way does not mean that all women do, or should. It certainly does not mean that we permit law and policy to develop to suit the psychological dysfunction of a minority.

‘Primary care’ is described by Karen as the ‘continuous mental process of overseeing, organising, knowing, caring, safekeeping and reassurance’. No one else is capable of understanding the ‘inner world’ of this primary carer. This primary care function is ‘fundamental to the wellbeing of the primary carer’.

This model of parenting described by Karen is dysfunctional. That doesn’t mean I am suggesting those who practice it are mad or unpleasant or trying to do anything other than their best. I am saying that it doesn’t work.

It doesn’t work for two reasons: first, it is a potentially absurd and dangerous elevation of parenting to an unsustainable gold standard which simply isn’t achievable for the vast majority of parents who have anything else at all going on in their lives.  If you have to ‘continuously’ oversee, organise etc one child, where do child two and three fit into this? Where do your relationships with your family, friends and partner? Your work? Your hobbies?

Second, by putting an emphasis on how this role of the continuous overseer is  ‘fundamentally’ important for the wellbeing of the primary carer, is neither healthy nor helpful. I suggest there is a real risk here of simply conflating what is right for a child with what the primary carer thinks is right for her. If we accept that ‘self-efficacy’ (defined as people’s beliefs about how they can exercise influence over events that affect their lives) is something to strive for, given its positive impact on people’s sense of wellbeing, then we need to be concerned about anything that is likely to detract from that – such as setting up a child as simply a means to an end, by providing a primary carer with her identity.

Madeline Levine, an American psychologist and author of ‘Teach Your Children Well’  noted that there is a danger here of confusing ‘over-involvement’ with ‘stability’ and promoting the view that it is both good and noble to sacrifice yourself for your child. The children however, say something different here.

…you should hear what most kids say about this… while you think you’re giving your kids everything, they often think you are bored, pushy and completely oblivious to their real needs. But lets look at this very simply. If you are willing to give up your whole life and identity, what’s the message you have sent your kid about the value of other people, mothers in particular  

Particular points

Primary care is how every child, in every family, has their needs met. Primary care is a product of society, culture and biology. Primary care, to give and receive is a human right.

Karen’s position here is curious. I last studied child development 20 years ago, but I am not aware that what my OU text book says about other cultures has been challenged. The ‘monotropic’ image of biological mother as pre-eminent and sole ideal figure for infants is by no means universal across cultures. Many cultures pattern child care differently and the relationships that form around a new arrival can take many different forms’ – older siblings, fathers, grandparents, others in same household, nannies and child minders etc. The roles played by these other carers will inevitably dilute or even eradicate the possibility that a child has a primary carer, being that person who ‘continuously’ organises, oversees etc

Looking particularly at grandparents, research supports their significant involvement with raising their grandchild. For example, research jointly undertaken by the University of Hertfordshire and the Family Matters Institute in 2009 found that 60% of grandparents were involved in some form of child care, either on a regular or occasional basis. 28% regularly cared for their grandchildren in the evenings or at nights.

Not only is it likely that many children  will have a wider network of adult carers than simply their mother, it is untrue to suggest that all mothers are automatically in a culturally sanctioned position where they can or wish to be ‘continuously’ providing ‘overseeing, organising, knowing, caring, safekeeping and reassurance’. For example working mothers are now the majority of mothers. The ONS shows that in 2013 72% of married or cohabiting women with dependent children worked; 60% of lone mothers. A probable explanation for this high rate of working mothers is that society is structured in such a way to promote home ownership as every adults’ goal and yet homes are so expensive both halves of a couple must work to afford one.

Mothers working outside the home must devote a significant proportion of their physical and mental energies to something other than their child and must contract out much of this ‘continuous overseeing’ to other people or organisations.

Take a personal example. My daughter from the ages of 7 months to 3 years spent her waking hours each week as follows:  40 at nursery, 30 with me and 14 with other carers. Who was her primary carer in this scenario? If it wasn’t me, does that make me any less her mother? Is my understanding of her welfare deficient?

With regard to biology, Karen might be on firmer ground. Mothers are indeed biologically very different to fathers; mothers give birth to children after a gestation period of nine months. Women are more likely to take time off work after birth to take care of children. I do not dispute therefore that pregnancy and birth have more of an immediate impact on a woman’s life than on a mans. A mother often has more opportunity when a child is a baby, to be the one who is primarily aware of and meeting his needs.

It is often argued that it is the mother’s breastfeeding that supports her role as more engaged parent, but given the lamentably low rates of breastfeeding in the UK, this is not very convincing. The NHS Information Centre’s Infant Feeding Survey in 2010 showed that only 12% of infants at four months were exclusively breast fed, dropping to 1% at 6 months.

In any event, childhood spans far longer than then 12 months of babydom or even the 24 months into toddlerhood. Does this initial advantage in the primary carer race for the mother on the basis of her gestating and giving birth, turn into a fixed advantage for the next 18 years? I do not think so. Other adult carers can become attuned to the child’s needs and able to meet them. We all know fantastic parents who didn’t give birth and who didn’t breast feed. Even if one accepts the mother’s superiority by virtue of her biology, this is directly relevant for only a short window in the child’s life.

Primary care is a human right

‘Primary care’ is not a human right. You are entitled to argue that it should be, but it currently is not. You cannot sue anyone for breach of your ‘right’ to be a primary carer. A ‘right’ is not simply something that an individual can declare. A ‘right’ exists only if it is recognised by a legal system that will protect and enforce it. Otherwise it is just an irritating and meaningless phrase, used in an attempt to cloak spurious arguments with some degree of legitimacy.

Family law treats child care as a logical transaction, passing a child from one parent to another….The overriding focus of equality obliterates the history of all mankind, the very nature of mankind… the family courts’ lack of understanding of the primary carer function… results in practice that is, at times, barbaric. It is no different to wrenching children from unmarried mothers in the 1960s or from poor mothers in Victorian workhouses’. 

This is nonsense in its purest form – it makes no sense. No one could allege this in good faith who is aware of section 1 of the Children Act 1989 and the panoply of case law which explains and expands upon the clear driving principle of that Act – that the child’s welfare is the paramount concern.

There is no ‘overriding focus’ on equality. There never has been. I find it impossible to understand how anyone in good faith can draw parallels between a legal system in 2015 enforcing an Act which takes the welfare of children as its paramount concern and historical and thankfully long gone stigma against unmarried mothers or the poor. This profoundly inaccurate hyperbole is neither convincing nor helpful. The courts were not proposing to ‘wrench’ Rebecca Minnock’s son away from her. The courts were simply saying that if she persisted in making up allegations against the father and refusing to allow her son a relationship with him, that would  have an impact on how often and in what circumstances she would be allowed to have contact with her son, to protect him from her emotionally abusive behaviour.

Research shows women make false allegations in 2% of cases / How does the court know the allegations were false?

What research? What cases? We don’t know because Karen doesn’t tell us. I would be interested to know what she is talking about because my experience over 15 years in the family courts suggests that the percentage of allegations either fabricated or exaggerated is significantly higher than 2%. In this case however, the court found that the mother had ‘positively invented’ allegations against the father so presumably she is one of this 2%. Not according to Karen. Just because she couldn’t prove her allegations in court, doesn’t mean they are false.

This is true. Judges are human hence fallible. Mistakes are made. But what alternative system of divining facts does Karen suggest? Shall we ask the neighbours? Cast runes? Or do we entrust that decision to a legally trained professional, who has heard evidence from a variety of sources over many months and made a decision based on that evidence? What system would Karen like to operate if she were subject to serious accusations?

Conclusion

Good parenting is not about continually devoting yourself to understanding and anticipating your child’s every need. To make your own identity contingent on your role as ‘mother’ is unlikely to benefit either mother or child in the long run. Children as they grow need space to find out who they are and what they want. They are unlikely to be able to do this in the shadow of a constant overseer. Parents need to have the confidence to recognise the benefits to their children of a variety of adults in their lives who love them and look out for them. The model of primary care outlined in this article is likely to be a stifling and overly containing model of parenting for the majority of children.

Most of us, most of the time, are good enough parents – and most of our children, most of the time, benefit enormously from having us in their lives. To permit any parent any automatic right to limit or curtail the other parent’s involvement in a child’s life, is simply wrong. And when your arguments act as encouragement for vulnerable women to feel justified in breaking the law, these arguments are not merely wrong, but irresponsible and dangerous.