By now the press are reporting widely the case of Alas Al-Wray (FD10C00445 LB of Islington v Al Alas and Wray Approved Judgment 19 April 2012). Not many other than lawyers will have the fortitude to get all the way through the judgment, which is extremely lengthy and medically technical. But it is a shocking and very sad story and it is hard to imagine the awful ordeal that these two young parents have had to endure. I briefly saw a BBC interview with them, and they were dignified and brave. I hope very much that they are offered support to integrate their daughter into their family at long last.
I was struck though by a commentary piece by Camilla Cavendish in yesterday's Times in which Ms Cavendish suggests that this is a case demonstrating how things have gone wrong. Yes, this is a case where things have gone terribly wrong from the perspective of the parents and the child concerned. But is it a case which demonstrates how the system has gone wrong?
Ms Cavendish states that "As Mrs Justice Theis's judgment implies, Rohan Wray and Chana al-Alas might never have suffered in this way had social workers and experts not rushed to think the worst". I don't think that is what the judgment implies at all. The medical experts on the ground were at the time clearly indicating the possibility, indeed likelihood, of non-accidental traumatic injury. What were the social workers to do, reliant as they were upon expert medical evidence? That the weaknesses in the medical evidence and opinion have been exposed was a result of the exhaustive criminal and family proceedings processes, only just concluded. Cavendish wonders "How can it have been in the little Jayda's interest to be wrenched from her mother and placed in care for 18 months?" But she neglects to mention that the criminal proceedings were ongoing until acquittal as recently as 9 December 2011. The care proceedings, which concluded this week, were ongoing for only 4 months above and beyond that prosecution and in that space of time vast resources were ploughed into a hearing of several weeks duration involving the most eminent experts in a range of fields and a raft of highly experienced counsel - in order to ensure that this child was not removed permanently from her parents unless it was truly justified. It is easy to say now that it was not in her interests to be removed, but neither the court nor social services have the luxury of hindsight when making decisions designed to protect children who may be at very serious risk of harm.
Cavendish asks, apparently rhetorically, "How can Islington Council have continued to imply that the parents had killed her brother, after they had been cleared at the Old Bailey?" But there is an answer which deserves to be stated: because the Local Authority has a statutory duty to protect children, and in cases where there is medical evidence supporting this kind of fatal non-accidental injury it is the responsibility of the Local Authority to put the matter before the court for a finding. Had the Local Authority adopted a "pick and choose" approach to the widely varying medical opinions it would have run a very serious risk of picking the "wrong" answer.
This criticism of the process is partly borne out of a misunderstanding of the nature of an acquittal. Elsewhere in the piece Cavendish refers to "a verdict of innocence". Of course no such thing exists in this jurisdiction. A verdict of "Not Guilty" is emphatically NOT a verdict of innocence. It is confirmation of the fact that the case could not be proved beyond reasonable doubt. Mrs Justice Theis's findings, based on the balance of probabilities, are closer in nature to a "verdict of innocence" than is a criminal acquittal, and it is as a result of her findings that the Local Authority's power to hold this child in foster care has been revoked.
If we want family courts to treat acquittals as a "verdict of innocence" rather than considering the matter on the balance of probabilities then there must be statutory reform through Parliament to enable the courts to take that approach. But to do that requires us either to adopt the view that all those who "get off" are innocent (think Stephen Lawrence case), or to accept the risk that children will be returned to abusive and potentially murderous parents. Is that what we want?
This case is a reminder of the complexity of these cases, and of the fact that much is unknown even for the most expert in their fields. It is right that the judgment should have been published in full: to vindicate the long suffering parents, to air the failings of the treating medical professionals and to allow public debate about the medical complexities arising. But also for another reason: to demonstrate that the family court works hard to produce the right outcome, even though the process is full of anguish for all concerned.