Ding Ding!
Christopher Booker is clearly still smarting from the smackdown contained in HHJ Bellamy’s recent judgment in the case of Re L (A Child: Media Reporting) (don’t believe all that “He was doing me a favour anyway” bravado). He hits back in this article. He couldn’t resist. Perhaps it would be more constructive for them to mediate rather than go ten rounds in public.
But since Booker has offered us the opportunity let’s have a little sport. I also, could not resist. Firstly,
Mr Justice Bellamy, presiding over a case to which I have referred several times, took the unusual course of publishing a judgment in which he was highly critical of me for my “unbalanced” and “inaccurate” reporting. Then the head of the family courts, Lord Justice Wall, in his ruling on another case, swiftly endorsed Bellamy’s attack on me (despite his own earlier criticisms of the “shocking” determination of some social workers to place children in “an unsatisfactory care system”). (my emphasis)
Do you see the non sequitur in parentheses? Like…uh! i-REL-e-vant! (*legally blonde voice*) Journalist criticises the system. Some judges acknowledge some criticism of the system is justified. Why should this render said journalist impervious to criticism?
There then follows a rather tedious exposition of the extent of Booker’s inaccuracies in reporting the case. Compare the articles and the judgment. Would you actually recognise them as the same case had Bellamy not referred to them? That Bellamy quite properly corrected an inaccuracy in his own judgment when pointed out (which ironically arose from the publication of an embellished version of Booker’s original article) does not alter the fact that there were (as Booker acknowledges) inaccuracies. But it’s not really about inaccuracies. It’s about whether, taken as a whole the story is a fair and accurate representation of the case. As I say, read the two accounts. Form your own view. Res ipsa loquitor.
The section of the judgment referring to tendentious reporting, Booker says,
Might sound damning to anyone unfamiliar with the whole secretive system, but it takes no account of the extraordinary obstacles placed in the way of any journalist wishing to report fairly on them.
On more than one occasion when I approached a local authority to check on the facts of what seemed a very disturbing case, the only response was to seek a gagging order prohibiting me from mentioning the case at all. When I accurately reported on one case so embarrassing to the council concerned that it eventually dropped its bid to seize a child, the judge ruled that any future reference to the case outside the court could lead to summary imprisonment. (my emphasis)
Those “extraordinary obstacles” include preventing a journalist from obtaining accurate information by attending the actual hearings, listening to the actual evidence and hearing submissions for all the parties, right? Sorry, what’s that? Reporters allowed into court you say? But Mr Booker assures us that,
The only recourse left to those trying to establish the facts of such cases is rigorously to test what can be learned from the few people willing to speak, and to come to as informed and judicious a view as possible.
*splutters* Which of course is a complete crock. Because Mr Booker could have attended any of the hearings. Mr Booker could have sought permission to publish information arising from the proceedings. He could have sought permission to see the documents in the case, for example the medical reports. But he didn’t. He didn’t do any of those things. Once. Such is the investigative zeal of the man. What else could he do but rely entirely upon the account of the parents? After all, in another case he had tried to get information from the Local Authority, who unreasonably refused to breach s12 Administration of Justice Act 1960 without a court order. So no point making the effort in this case eh?
Incidentally, if I am right in assuming that this article relates to the same case, Booker was well aware that the judge was keen for him to attend court. So not prevented from attending by the secretive judge then.
Mr Booker notes that “we can see, for the first time [in the judgment], that its injuries included not only the fractured arm but also six “metaphyseal fractures” and several marks or bruises.” (my emphasis) The reason that Mr Booker, who has been SO interested in this case, has not apparently seen this before is because he never bothered to go to court to gather the best evidence. However, since Mr Booker evidently has greater expertise than the five expert witnesses who gave testimony at the fact finding hearing he didn’t attend, I suppose it would have been a very frustrating experience for him to have watched. But perhaps enlightening, since the proposition that he makes in his own article, that the real explanation for metaphyseal fractures “lies in a metabolic bone disease, a contributory factor to which may be a deficiency in Vitamin D (of the type which evidence showed the mother in our present case to have)” was considered extensively – and discounted by all the medical experts.
Now about that medical evidence. The Booker article suggests that the theory that metaphyseal fractures are indicative of child abuse is discredited or at least controversial. No doubt Mr Booker will have assisted the parents’ experienced legal teams by providing them with this information. At any rate, there were 5 experts, including the parents’ own. They were unanimous. Including the parents’ own. They did not think that Vitamin D deficiency or any other metabolic bone disease was a plausible explanation for these injuries in this child (see for example, paragraphs 55, 67 and 98) (which is a quite different question from whether or not rickets or Vit D deficiency can ever provide a non-traumatic explanation for injuries such as these). Although the Mother sought further tests to pursue the point further, the experts did not consider this justified given there was no clinical evidence of any relevant medical condition. Mr Booker must know this is how the expert evidence played out because (even though he did not attend the hearing), he will (I am sure) at least have read the judgment thoroughly, and not just the bit about him. That being so, when Booker suggests that “For whatever reason, not one expert was called who was prepared to challenge [the orthodox] view” he knows that the parents’ own expert considered the evidence and concluded that the parents’ suggestions of some medical non-traumatic explanation for the injuries did not stand up (I summarise – but read the judgment).
Oh, and Mr Booker seems to have forgotten to link to the judgment, so here it is again. And here’s the President’s two penn’orth (X Y & X and Brian Morgan [2011] EWHC 1157 (Fam)).
There are two aspects of this matter I am unhappy about (disregarding what might be thought – if I were being picky – slightly selective quotation by your good self). The first is that this is an important public interest story, and Booker is doing no one any favours by reporting it so poorly. As one of very few journalists who shows much interest in family court miscarriages of justice, he has a responsibility to report accurately and I wish he would get out of the office and do some serious investigative journalism.
My second worry is that this case seems to hang on a medical hypothesis. Metaphyseal fractures are (italics) controversial, and we have seen in the past numerous medical hypotheses fall by the wayside: shaken baby syndrome, Munchausen’s by proxy, reflex anal dilation. Diagnosing child abuse is undoubtedly extremely difficult, but the tendency for the profession to attempt the identification of specifically pathognomic conditions is just the attempt to find a short cut. Expert witnesses have been found to be wrong before; they have also been found – like Roy Meadow and possibly David Southall – to be pursuing agenda of their own. Once social and medical services decide a mother is abusing her child they stop looking for undiagnosed conditions in the child – this can be potentially dangerous.
The medical evidence (such as is contained in the judgement) isn’t fully convincing – there is room for doubt. The experts don’t exactly agree because they all give different evidence based on their specialisms. None of them examined L directly, and some of the diagnoses were made using photographs.
The conclusion seems to be that there is insufficient evidence to substantiate the mother’s story, but that shouldn’t be the test; it could equally be argued that there isn’t much evidence to support the alternative hypothesis. The discussion of bruises is especially unsatisfactory – is Bellamy implying that any unexplained bruise must be non-accidental? Can any of us account for all the bruises our children sustain? This is one of those cases where the balance of probability doesn’t seem adequate.
Bellamy’s evidence for his determination that the mother was the perpetrator (paragraph 178) is very similar to a diagnosis of MSbP – that is also a matter of concern: an innocent mother may well behave in the same way. There is also concern about the manner of the father’s police interview. I suspect we shall hear more about this case in due course.
You’re not being picky – the quotation was of necessity selective, but I have linked to the full article and the full judgment so that readers can take in the full information.
I agree that medical hypotheses deserve to be tested and medicine moves on, leaving behind it a string of discredited theories. But the testing of the medical evidence in this case was carried out by the parents’ legal team, with the assistance of their own experts. This was (quite properly) permitted by the court, but ultimately the judge based his decision on the medical evidence which was clearly that the injuries were non-accidental. Your point about the Mother goes to which of the parents was the perpetrator not whether or not the injuries were NAI.
Pa 178 was clarified by Bellamy in the supplemental judgment. If I understand him correctly the points set out in 178 are not the exclusive basis for the identification of the Mother as perpetrator. But it seems to me that it was point that required clarification because it did rather beg the question you pose – i.e. wouldn’t an innocent mother behave similarly?
You may be right, there may be an appeal, and we will hear what the Court of Appeal think in due course.
Some of your other questions are perfectly legitimate (e.g. the bruises) but the difficulty is that a judgment cannot reflect every single nuance of the evidence, and it may well be that had any of us sat in on the hearing we would have a far better understanding of the evidence and the facts than we do commenting on a judgment.
Judge Bellamy – supported by Sir Nicholas Wall – was quick to criticise The Telegraph over alleged “omissions” in its reporting.
However, does the learned judge have any similar criticism to levy at “omissions” made by the judiciary itself?
Many people who have gone through or work in the Family Court System (including the COA) will have had experience of judges blatantly “omitting” important and relevant facts and arguments from their judgments, with the consequence that, from a reading of the judgment alone, it appears completely rational and fair. However, if one were to have access to ALL the arguments and facts in a case – the ‘full story’, as it were – the judgment may not appear as erudite, well-balanced and just.
Personally I think Booker is hung up on this area of family law and he does himself or those of us who want reform of the system little or no favours.
Judge Bellamy has made such a hash of this case that I wonder how he ever passed law school let alone became a judge !The only two FACTUAL criticisms he makes of the “Booker Article” are firstly that judge Bellamy claims Booker wrote that the mother was alerted to the need to take their son to the doctor because of slight bruising when in true fact it was a floppy arm.
Well in the Sunday Telegraph Mr Booker did specify a floppy arm !! The judge took HIS information not from the Telegraph but incredibly from my website http://www.forced-adoption.com on which was printed a draft the day BEFORE the paper was printed mentioning bruising, and that was afterwards corrected .I am immensely flattered that judge Bellamy chose to rely on my website for evidence on which to base his judgment,but after all it was only a draft and I seriously advise him next time to actually read the SUNDAY Telegraph(not the Telegraph that he mistakenly said he read!) before criticising its journalists for what I write on my website ! The fractures of course were never what alerted the parents to there being a problem as they were only discovered after x rays at the hospital so Booker was 100% accurate and the judge misleading by implying otherwise ,and relying on my website mentioning bruising rather than the actual Booker article specifying the floppy arm .
Secondly the one and only error Booker actually made was to mistake the identity of one of the 5 doctors involved ,none of whom were named anyway .Hardly an error of any importance.No journalist is going to sit day after day in a family court miles from London on the off chance that something of interest could emerge ,especially in this case when many of the important facts happened in Ireland and there is no reason why local authorities should not give anonymised explanations to journalists instead of threatening them with injuctions and prison for daring to ask questions in the first place and then complaining that nobody has heard “the other side”
What judge Bellamy has glossed over is [edited] the mother who has however now been declared guilty by a biased judge who admitted she had harmed herself by consulting me,and who has completely disregarded all evidence except that of various doctors who were absent when the injuries were inflicted (if indeed they were inflicted as claimed)!Bellamy however in effect rubbished the police by playing “Sherlock Holmes” and by constructing completely fictitious “windows of opportunity” deciding the police were wrong and that the mother was guilty !!He took no account of his previous description of her earlier in the judgment as “a devoted mother.” Sherlock Holmes became Inspector Clouseau !
Bellamy omitted to say that [edited].
Extract from “The Times” April 13th 2010 “Lord Justice Wall (The Senior family court judge) said that the determination of some social workers to place children in an “unsatisfactory care system” away from their families was “quite shocking”.In a separate case on which Sir Nicholas Wall also sat, Lord Justice Aikens described the actions of social workers in Devon as “more like Stalin’s Russia or Mao’s China than the West of England” !
Who am I to contradict such eminent authorities?
[Ian, I’ve edited your comment to limit it to matters that are already in the public domain, and comment on the judgment. Lucy]
Interestingly the Telegraph website (which includes the Sunday Telegraph) does not show any article on 9 October 2010 (as referred to in Bellamy’s judgment, so I can only assume they have taken it down for legal or other reasons (pa 185). But the first article referred to is still up here and says “Also this week, the fate of another family hangs on another court hearing. This is the story of a couple who last January were rejoicing at the birth of their first child. Some weeks later, concerned that the baby’s arm seemed floppy, they took it back to the hospital to seek medical advice. An X-ray confirmed a minor fracture. This proved to be the start of a nightmare, which led to them being arrested, handcuffed and driven off separately to a police station, where the mother was held for nine hours without food. The father was imprisoned overnight.
It emerged that the doctor they saw had reported her suspicion about the child’s fracture to Coventry social workers. The couple were put on police bail, ordering them to surrender their passports, forbidding them to be unsupervised in the presence of anyone under 16, and only allowing them to sleep in one of two named houses (the other being the father’s family home). But because no charges had been brought, the social workers allowed the baby into the care of its Irish grandmother, a respected primary school headmistress. To avoid the baby being seized, she took it to her family home in Dublin, where it has been supported by a band of relatives.
Determined not to be thwarted, Coventry’s social workers then asked the Irish courts to rule – in a case to be heard this week – that the baby must be sent back to them in England. The hospital doctor has meanwhile contacted the Irish medical authorities demanding that in no way must they carry out specific medical tests on the baby which might account for its injury.
On Thursday I spoke again with the mother, who reported that her own bail had been lifted. She was therefore about to join her baby in Ireland. But the child’s father has been told that he may face charges for harming his son, a possibility they find incredible. This will be reported to the Irish court, prompting the fear that the child may be taken from his mother and grandmother, neither of them under any suspicion, and deported to England to be placed in foster care.” So there is a reference to a floppy arm but no reference to bruising. I have screen shots of this article – the Telegraph don’t seem to log edits and amendments like some other papers.
FAMILOO !
As I explained in my comment preceding your contribution,Bellamy took his information from MY website http://www.forced-adoption.com before Christopher Booker’s article was even published!!Hence Bellamy got the dates wrong and the information wrong and had the cheek to accuse Booker of innaccuracy when it was my error on my website putting bruising instead of floppy arm and Bellamy compounding my error
before Booker’s article ever appeared !
Bellamy seems so obsessed by my site that he even reproduced my golden rule summary and other parts of my site at the end of his judgement for which I THANK HIM CORDIALLY !
But please don’t let him blame Christopher for my mistake of saying bruising instead of floppy arm ,but where’s the importance in which of the two symptoms alerted the parents anyway?
No need to shout. 😉 I was just noting what currently is and is not published on the Telegraph website – at present the only information I can find refers to floppy arm and one fracture, which we now know is an incomplete record of the extent of the injuries. The significance of the bruising I think is that they were held to be separate injuries, incurred non-accidentally.
Lucy:- The Irish cases are all mentioned in the judgement as follows ,but no explanation as to why they did not leave matters to the Irish authorities!
DIRECT QUOTE! [edited – you’ve quoted paras 3-6 of the judgment here, which is unwieldy. I’ve already linked to the judgment so readers can look for themselves.]
169. Notwithstanding the mother’s reassurances, the father raised the same issue during his police interviews. The police officers latched on to this, treating it almost as if it were a confession. The interviewing officers did not have the benefit of the medical evidence that is before the court. Had they been aware of the medical evidence they would no doubt have realised that this ‘explanation’ from the father does not stand up to close scrutiny.
The above extract from the Bellamy judgement shows that the results of the x-rays were kept secret from the police !
[edited]
Hypocrisy or Deliberate deception? Take your choice
Does it show the x-rays were kept secret from the police, or just that the police for some reason had not at the time they interviewed the father seen them?
I’ve edited your comment to remove assertions about facts which are not in the public domain.
Another British judge who doesn’t like the undue process of the media but doesn’t realize his own failure to provide due process. Since these cases Are civil law cases when one side gains an advantage by seizure it usually must provide a safety bond to ensure it doesn’t cause damage. Did this judge at the beginning of the case order a sizable bond to be posted so that if the council lost thebond would pay for the damage they are causing? Of course he didn’t! But that is a failure to provide due process! As such I need not go any further, i think his decisions should be considered void ab inito and his court not gven comity by any other.
Judge Bellamy made several factual errors and omissions and Booker made only one !
1:-Bellamy criticises Booker for omitting mention of several fractures in his two articles published last year, which mentioned only one.In fact of course even the police were unaware of these fractures as Bellamy admits in his judgement,and only the experts this year brought this news out by their report to the court.At none of the hearings last year were the injuries discussed specifically so Booker would have learned nothing new for his articles if he had attended the courts;At the time he wrote neither he nor the parents could have known about multiple fractures.
2:-Bellamy admits relying on MY WEBSITE for his evidence and claims that I “sexed up” Bookers article,but this learned judge was too obtuse to notice even now that my site published the information he relied on so heavily two days BEFORE the Booker article appeared in the Sunday Telegraph !So he criticised Booker for my mistake and I can only advise him next time he has a go at a journalist he should read what the journalist has actually written,buy a copy of the newspaper, and look at the date as well !My error omitting the mention of a fraction in what was only a draft after all, was swiftly corrected.
3:- Bellamy has himself sexed up the “injuries” making them sound horrific almost like a new baby p ! In fact the child never had any operation or other treatment and flourished in Ireland under the care of his Irish mother , Irish grandmother and extended Irish family,until after UK social services indulged in successive court cases that reached the Irish Supeme court (as mentioned but glossed over in the judgement,).UK social workers then retrieved the child from its Irish family at great public expense and brought him back to the care of a UK foster family !(also at public expense).
4-:- Also mentioned,(but glossed over in the judgement) was the fact that when the injuries were discovered the child was confided to the care of the grandmother with supervised contact alowed to the mother.It was only the grandmother’s wish to retire in Ireland taking the baby with her that aroused such ire in the UK.An Irish lady recently retired as a long standing head teacher from a large school in Scotland is still mystified as to why all this happened as there was NO CARE ORDER in place at the time she left and she reported immediately to Irish social services when she arrived.
5:-The only error Booker did make was to mistake the identity of one of the many doctors involved in the case;none of whom were named in any case .
Hardly a significant error compared with those errors and omissions in Bellamy’s judgement !
6:- Both Christopher Booker and myself campaign not necessarily for the “opening up of the courts” as postulated by Lucy Reed of “pink tape” ,but for the scrapping of the gag that prevents parents who feel aggrieved from protesting or going to the media when their children are taken (rightly or wrongly) from them.Nowhere else in the EU is there such an outrageous gag on the freedom of its citizens to protest if they feel wronged by the State.
Ian, have you contacted Bellamy directly? I believe his email address is [edited]
What with the Lord Chief Justice and the Master of the Rolls pontifacating yesterday, these pompous and arrogant judges need to be brought down a peg or two!
familoo, do me a favour!
(1) It’s pretty simple to work out what any judge’s email address is. HHJ Bellamy is no exception.
(2) They are public servants and any member of the public has a right at any time to contact them and question them. The email address is his public servant email address.
(3) Why would you, a family law barrister, need to protect such a ‘mighty’ judge?
As to 1 you are correct – hence no particular issue if I don’t publish it. I was aware of this when I decided to edit. It scarcely needs to be published. So your suggestion I am somehow shielding the judiciary is misplaced. People are entitled to criticise and challenge their judgments and actions and do so on this blog and elsewhere.
However, my reason for editing was that I don’t want to encourage use of judicial emails as a means of complaint by the public about judgments in cases they are not party to. Anyone who wants to take issue with the conduct or judgment if a judge in a particular case can complain to the judicial complaints body or appeal (as appropriate). Anyone who wants to comment on / criticise broader systemic failings can do so through the family justice review, their MP, or publicly via for example a blog.
Judicial emails are for a specific purpose – dealing for example with orders e-filed by advocates, and goodness only knows it doesn’t take much for the system to breakdown as it is – I’m not going to encourage a situation where judges have to wade through emails from angry of Birmingham to get to their urgent business emails.
[…] “Brought to Booker” and more recently “Booker Booby Prize” and “Booker v Bellamy Round 2“. Although others apparently within his orbit have commented there has been nothing from Mr […]
Something is clearly wrong where a judge finds it necessary to got to a family support site and go through it, it this Ian Josep’s, who, in spite of being a prominent Family Support organise, is then roundly excoriated.
He then attacks both him and a prominent national newspaper, publishing the judgement to ensure this is public.
As said many F C judges appear to be unable to realise they do not give due process.
On anotehr matter it frequently happens the parents’ legal team DO NOT test te evidence of expert witnesses but ask mild questions, while failing to recruit experts of a contrary medical theory, so as not to upset the other legal CAFCASS and SS Dept.
Judges do not seem to be able to step up to the plate and say something is wrong with the system.
It is common, when parents do not “confess” and receive therapy, for judges to be come more and more hostile and perjurative to them and those trying to help them.
The arrogance of the judiciary could not be highlighted greater than it was on Monday 23 May 2011. Even after the Sunday Herald printed a photo of [edited] , Justice Eady still refused to lift the injunction; even after John Hemming MP unmasked [edited] in Parliament, Justice Tugendhat refused to lift the injunction. The world knows [edited] identity but still the judiciary remain unmovable – the arrogance, the pomposity, the pride is simply startling! And this same conduct has been going on in the corrupt Family Courts of England & Wales for a very long time.
Now that the UK public has overwhelmingly shown what it thinks of the judiciary and ‘gagging’ orders, maybe this is the time that the corrupt Family Courts of England & Wales are opened up to proper scrutiny.