All quiet on the Western Circuit

There have been a few tumbleweeds around here of late, like a deserted Wild West Main Street. I am still alive (just). In the absence of either time or energy to write a scintillating blog post may I introduce you to Justice Lamb (that’s Mister to you), the coolest of the Shaun the Sheep currently gracing (grazing?) the streets of Bristol.justice lamb - front

Personally, I think that my name of choice, “Mr Justice Ramsbottom”, would have been more popular with the Minions generation, whilst Kathryn Skellorn QC’s “Herbaceous Corpus” would have won the prize for best legal pun but possibly would cause blank looks to be exchanged between the unrepresented sheep searchers of Bristol…I think I recognise that scarcely hidden eye roll. I have seen it on a judge’s face many times (as my opponent addresses the court obviously…).

Anyway, I have some sort of weird sheep crush on our old lamp chop.

I should link to the Shaun in the City website so you may find out all about the sheep art trail and donate etc (all for a good cawse an all).

Mr Justice Lamb is sponsored by St John’s ChamBaaaaaas.

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.