Family Court a law unto itself?

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.

Panorama

On Monday Panorama showed a report on the journey through the family courts of a family accused of causing serious non-accidental injuries to their baby son: 'Parents' Child Abuse Nightmare'. After lengthy police investigation and care proceedings no prosecution was pursued and a finding of fact hearing exonerated the parents, the Judge holding that there was no cogent evidence that causation of the injuries was non-accidental.

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It was a shocking story, perhaps more so for those who do not work in the system and have not been caught up in it in respect of their own families. On another level, for care practitioners like myself it was however in many respects unremarkable - although the case broke new ground in respect of issues concerning publication of judgments and the identity of experts the care proceedings themselves raised familiar issues and followed a well worn path. What was unusual in terms of the care proceedings was the total failure of the Local Authority to make out threshold.

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There were several predictable references to the secrecy of the system, though the system was not so secret as to prevent the programme from being made. The fact that permission had been given for the proceedings to be reported did not appear to attenuate the hyperbole about the cloak and dagger approach of the courts (In fairness though, the lengths to which the parties and the BBC had to go to get permission were not insignificant as can be seen from the number of citations which follow at the end of this post).

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In general I thought that the process was explained pretty well, and accurately. However I thought that towards the end it rather descended into a sort of tabloid style. I am thinking in particular of the naming and shaming of 'the experts who got it wrong', which rather undermined what had gone before and was frankly rather unfair to the Community Paediatrician whose referral triggered the child protection processes. It went as follows:

'The experts who got it wrong:

Dr Carl Johnson the police expert whose evidence suggested a history of abuse (cue mugshot on wall of shame)

Dr David Vickers the community paediatrician who told police that without an explanation for Williams injuries the likely cause was that it was inflicted. The judge did not accept this argument. (cue mugshot on wall of shame)

Professor howard bird the rheumatologist who suggested hypermobility. The judge found that he had failed to be guided by a duty of professional detachment. (cue mugshot)'

What was not adequately teased out to my mind was the fact that the evidence of the community paediatrician who had made the initial referral was 'rejected' only after further expertise was drawn in for the purposes of the family court proceedings: i.e. the court process had served to vindicate the parents in a way that could not have taken place had no court process been commenced. It was a significant omission in my view not to make clear the distinction between professionals treating on the ground offering provisional opinions about the risk of NAI for the purposes of initiating child protection processes, and the considered opinion of experts instructed specifically for the purposes of conducting a rigourous after the fact analysis of the cause of injury on the basis of a vast amount of additional evidence and with the benefit of a great deal of hindsight. The insinuation from the programme was that the evidence of the community paediatrician involved prior to the commencement of proceedings was rejected as in some way substandard, or that he did not do his job properly, when it is not in fact at all clear that this was the case. The Radiologist was the subject of criticism and this was spelt out, and the listing of them together as 'the experts who got it wrong' tends to suggest the court was similarly critical of Dr Vickers.

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Unfortunately, although permission was granted to report it, the original judgment in the care proceedings does not appear to be reported although extracts from it appear in the subsequent judgments about publicity. It is not clear from that material what role the community paediatrician played in the care proceedings, but most likely he was a witness of fact if even called, who will have testified simply to the child's presentation on the day. It is unlikely that he offered an opinion on causation to the court as he was not an independently instructed expert in the case, if indeed he gave evidence at all.  There is no suggestion in the material available that he was criticised by the Judge, even though her conclusion was that there was a non-accidental explanation for the injury. A child protection professional must approach possible NAI from the perspective of protecting a child whilst investigation and judicial processes are carried out: there is a necessarily cautious basis of operation based on risk. It is only subsequently that the judge enters the arena and she does not deal in terms of risk but in terms of fact.

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The fact that the court, taking into account all the evidence, concluded that findings could not be made and that NAI did not take place is not equivalent to suggesting that the individuals named were professionally substandard, wrong or incompetent. Had Dr Vickers not made a referral raising concerns about NAI he would have been in gross dereliction of duty and no doubt criticised for it. The parents in the programme acknowledged as much, clearly accepting that the child protection process had to be worked through, however awful. The programme fundamentally confused the identification of risk and triggering of child protection processes – which is a process designed to further investigate suspicions of harm rather than to conclude upon them – with the considered opinion of experts instructed to assist the court in reaching conclusions about what did or did not happen.

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Although in the event Munby LJ in did not grant anonymity to the treating clinicians, he did say this in his judgment ([2010] EWHC 538 (Fam)):

'there is a significant and important wider public interest in protecting the anonymity of treating clinicians in child protection cases in order to promote the effective working of the child protection system; if treating clinicians are publicly 'named and shamed' and subjected to vilification for merely doing their jobs properly, there is a legitimate concern that they will become understandably reluctant to make child protection referrals and/or consciously or subconsciously require a higher standard of proof before doing so; or they may simply refuse to accept the personal risks of becoming involved in this area of work – consequences all of which would be profoundly against the public interest.'

This would seem to be a case in point.

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I was also  struck by the concluding remarks which I thought implied that in some way the campaign fought by these parents was responsible for some sea change in the approach of the courts, and indeed was instrumental in bringing about the Children Schools and Families Act 2010. Of course cases like these of perceived or real injustice and heartbreak are many, and it is the collective pressure applied by individual parents and campaign groups, as well as the advice of professionals from within the system that have brought about some change in this area and have made the question of transparent justice a matter of serious public debate. The Ward case is one example of the incremental shift in approach which has been gathering pace for some time.

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Jeremy Vine, during his brief slot topping and tailing of the report also suggested that the law had now been changed (as a result of the Children Schools and Families Act 2010) so that experts could now routinely be identified in the way that the experts in this case had been. He said:

'And in the final week of the last Parliament, a bill was passed which rubber stamps the Ward ruling that paid expert witnesses can be identified.'

(Of course two of the three professionals the programme makers crowed about having obtained permission to identify did not fall into this category). This is not an accurate representation of the legal position, not least because the CSFA has yet to be brought into force. I think that viewers may well have understood from the programme was that they can name experts and tell the world what experts have said about their family and why they were wrong. In fact even when (if) the CSFA is implemented the press will be able to report only the name of the expert. The contents of any report will be classed as ‘sensitive’ and not publishable without permission, the background to its having been ordered is likely to be largely unprintable because it may identify the family and the parents themselves are not permitted to publish any information at all. Even if the press considered the bare bones of the story which are permitted to be published to be newsworthy they would only be able to publish information that they had gathered from attending the proceedings. There is of course facility under the new provision for specific application for permission to publish more, but this is already the case - and is the process used by the Wards and the BBC in order to make and air the programme.

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Far from the shift in the law that Panorama insinuated this case brought about, the situation remains and will remain in broad terms the same on this point (subject to any further statutory amendment). There is provision in the Act for relaxation of the reporting restrictions in future, but there is an 18 month moratorium from the date of implementation on that, and a slew of hoops that must be jumped prior to that being permissible under the act, including an independent review and public consultation.

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I thought it was a shame that a programme that quite carefully explained the court process and the reasons why child protection professionals had to take the action they did in a balanced way, was spoiled by basic legal inaccuracies and the temptation to find a way to engineer in a few punchy soundbites.

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The judgments in this case (excluding the original final care judgment) can be found here:

Judgment in B (Children) handed down

The judgment in B (Children) [2008] UKHL 35, handed down today is of significant importance in care proceedings. The leading judgment by Baroness Hale of Richmond is compelling reading, as is the secondary judgment of Lord Hoffmann.

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Based on my first read-through of the judgment this evening the decision appears to amount to this:

  • the correct standard of proof in care proceedings is unequivocally the civil standard i.e. the balance of probabilities;
  • the 'cogency rule' (that the more serious the allegation the more cogent the evidence needs to be) should be laid to rest;
  • a finding of future harm cannot be founded upon a mere 'real possibility' of past harm - if there is insufficient evidence of past harm to satisfy the standard of proof the allegation remains no more than an unproven allegation and children should not be removed from their families on the basis of unproven allegations; .

I was struck particularly by Baroness Hale's remarks about the distinctive roles of the court and local authorities (see pas 57-60 in particular): it is for local authorities to act on suspicions of harm by investigating and where appropriate initiating proceedings, but it is for the court to adjudicate upon the evidence and consider the child's welfare based upon the conclusions reached about that evidence.

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I will want to read this judgment more thoroughly - there is a lot in it - but for now suffice to say that although it is lengthy it is also impressive, and has a good degree of clarity bearing in mind the difficult subject matter. I have linked above to the judgment on Family Law Week - no doubt a full summary of the case will appear there before I can hope to do it proper justice.

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Update: Laws of Love has helpfully provided a more detailed summary than I have found time to do: here.