I don’t read the Telegraph, but it has become increasingly difficult to avoid being confronted with the journalism of Christopher Booker, who it seems is engaged in a long standing campaign against the national child snatching scandal represented by our care system. The latest to have come my way is this piece on 5 March, in which Booker somehow turns a case in which the Court of Appeal (quite properly) castigated the court below for unfairness in the interim removal of children, into an example of how rotten the system is. I say somehow – it is easily done: he simply puts his own words in the mouth of Lord Justice Thorpe when he says that “a senior judge has spoken out about a mockery of justice which is repeated week after week in courts across the land”, promptly providing not one scintilla of supporting evidence for such a serious proposition. One wonders what outcome on that appeal would have produced any other cry from a journalist who is so caught up in the campaign that he appears to have cast aside objectivity along with his thesaurus, going even to the lengths of personally funding the legal costs of parents who have sacked their allegedly corrupt lawyers (and then rather perplexingly complaining when he is billed!).

There may be many legitimate criticisms to be made of the care system, but headlines caricaturing social workers as child snatchers as Christopher Booker does is a tactic which runs the risk of undermining public trust in the social workers who are at the front line in defending children from the very real threats they sometimes face, damaging public confidence in the justice system and eroding journalistic credibility. Let’s be plain: things do go wrong. Miscarriages of justice occur. But to read Booker’s articles on the topic of care and adoption proceedings one might reasonably form the view that the whole system was rotten and that baseless removal and adoption of children was rife. His writing drips with hyperbole, we are told of dozens of families each week being heartlessly torn from their families without even being able to challenge the evidence or speak for themselves. I am troubled when opinion pieces masquerade as reportage, particularly when the topic is so important. The articles are scattered with emotional accounts from parents about how their children have been removed from them without justification. Although Booker says that he has “followed dozens of such cases in recent months, which suggest that something has gone horribly wrong with our child protection system” it is unclear what that means. It appears from what he writes that he has “followed” the parents account of events and absorbed the case from their viewpoint. Perhaps he has undertaken a thoroughgoing analysis and journalistic investigation of the case in the round, but if so this is not observable from the published articles. Instead we are offered third hand accounts, or accounts originating from parents, like this:

“I shall give just one disturbing instance of the latest developments in a case I have been following for months. Like many others, this came to me through the Forced Adoption website, run by former councillor Ian Josephs. It involves a married couple whose five older children were seized earlier this year, subsequent to which their latest baby was torn from its mother’s arms only hours after it was born.”

This doesn’t actually tell us anything other than that a newborn baby was removed, after her / his five older siblings had already been removed. Choosing to use unsupported descriptors like “seized” and “torn” does not add to either the evidential weight or the credibility.

There are some examples in his prolific output however, which give much more information, and clearly Booker has been to court at least in relation to permission to publish. But even then his reports are primarily parental accounts rather than accounts of proceedings, and this necessarily means that they are an incomplete picture. And in such complex and emotive of areas an incomplete picture is almost inevitably a misleading one.

Of course it is difficult for the media to produce fair and balanced reporting of this kind of case when there are so many restrictions on what can lawfully be published. What little can be reported is often insufficient to enable a balanced report to be constructed, and the end result is very often that one side of a story is aired, when what the public deserve is to be given a reliable and legally accurate report of a case from all sides. It is difficult, but if miscarriages of justice are really occurring, and if Mr Booker is in court witnessing the same day in and day out as his journalism suggests, one might have thought that he would be making successful applications to report fully rather more often. He does not suggest in the articles I have read that he is repeatedly asking for permission and being rebuffed. One assumes therefore that he is not asking.

In his recent “child snatchers” article Christopher Booker gives substantially more information about the course of events. I don’t know if an injustice occurred in that case, from what we are told by Booker I agree with him that it certainly sounds as if “something seriously odd is afoot” – unlike Booker I can think of a myriad of potential explanations which do not involve conspiracy or injustice. But he does not link to the judgment. Why? In another case he reported about in July 2010 a lot of information is given, and we are told he will post again once the outcome of a hearing is known. I can find no update. I’m prepared to give Booker the benefit of the doubt to the extent that he may have far more information than he is able to publish. But these examples are odd and suggest that the overarching “Family Courts Injustice” story is tending to take precedence over the practice of evidence based journalism. And Booker’s articles do not read as if there is some fuller story itching to get out, constrained only by s12 AJA 1960. They read as if the writer considers them complete, demonstrably made out.

All of this of course must be put into context. Miscarriages of justice occur. But what occurs far more frequently is child abuse and neglect, as this article from the Telegraph reminds us rather graphically. Children do need to be removed from dangerous or harmful situations and there must be a legal framework for permitting and regulating that: care proceedings. Booker insinuates all sorts, seeing corruption in the fact that foster carers are paid for caring for children (why should they not be paid for the expense of accommodating, clothing and feeding a child and for their time and skill given in caring for them?), that parents’ lawyers act also for local authorities (also called independence of counsel, and as any parent lawyer knows working for a local authority provides invaluable insight into their policy, practice and weak spots). He refers to one case (where his sole source appears to be the mother), whose solicitor is said to have been allocated to her by the social worker and who refused to oppose the care order. This is a basic misrepresentation of how the system operates and one which frankly should never make it into print on the pages of a respectable national. Lest there be any confusion: social workers do not allocate solicitors. A parent has the absolute right to instruct who they wish to instruct (subject of course to legal aid deserts). A solicitor’s professional duty is to act upon the instructions of her client, not to agree with the Local Authority. They are of course under a duty to advise about the prospects of successfully opposing the Local Authority, and may often advise that there are poor prospects or that it is better for one reason or another to avoid a damaging interim contest in the interests of the longer term outcome. Booker gives the impression that day in and day out social workers and police are gaily whisking children away without so much as a court order. He is wrong in giving that impression. He talks about the “mob handed involvement of the police”, as if this is a routine manner of removal. In truth the police exercise their protective powers only rarely, only where matters are too urgent to await a court order, and their powers to remove are limited to 72 hours, by which point the Local Authority is obliged to come to court if it wishes to keep children away from their home. In the vast majority of cases the parties will have attended court before ever they are removed, and in the vast majority of cases where they are removed this is done without the involvement of the police.

As any professional who works within the family court system will tell you there is in most cases pretty good evidence that something has gone quite seriously wrong with the care that parents have given to their children by the time it gets to court. The real battle in most cases is not whether the parents have in some way failed in their past parenting, but whether or not they can put things right, learn to do better in future. There are cases where the Local Authority has overreacted to minor failings, or where there is simply insufficient evidence to justify removal or care orders, but the truth is that these are rare. Based on my experience Local Authorities could be more properly charged with being too reluctant to intervene in families than with being too keen – parents often understandably ask in these cases why it is that what was thought adequate care for so many years is suddenly no longer so. But again these cases are not many.

There is no incentive for Local Authorities to initiate care proceedings willy nilly – it is frankly a headache and an expense for them and in my experience if they can avoid it they will. The problem with the journalistic approach to this kind of “scandal” is that the cases that are reported are largely self selecting and represent a very skewed sample. Booker himself has apparently been told as much in his “off the record” ministerial briefing (that scary fact in itself warrants a whole separate post), although he refuses to accept what he has been told:  “the official line, it seems, is that the horrifying cases I have covered represent only an untypical minority of the total – “less than 10 per cent”. In general, the system is working fine”.

To return to the recent article, which recounts the tale of a woman who sacked her solicitor because he was “on the other side”. Sadly, this is an indication to those of us who do this work that the client has probably found it difficult to accept advice about how to run her case or about the prospects of success. Whatever the reality in this particular case, it appears to have led to the refusal by the LSC to transfer the certificate. Mr Booker may have felt that he was assisting, but I do wonder if his interference in the form of arranging and retaining alternative legal representation through private funds may well have been part of the problem in transferring the certificate. The other is likely to have been, as identified by Booker, that the Mother’s solicitors have reported the client’s refusal to accept advice, as they are duty bound to do. What ultimately seems to have happened is that the woman has had a series of short lived periods of representation with probably no continuity of advice throughout. It is evident from a comparison of the two reports that this woman is very probably the mother of six children referred to in the November 2010 article previously referred to. From this we can see that there must have been a s34(4) (no contact order) giving judicial sanction to the LA’s refusal of contact for a period of several weeks, almost certainly only approved after evidence was heard (unless uncontested), and that the good offices of the solicitor then instructed (presumably the one who was on the other side) went so far as to secure the instruction of an independent social worker and to have her actively involved in trying to establish the children’s wishes, which one can infer from the report were probably that they didn’t want contact or at any rate didn’t want to go home. One cannot say more than this: from the information Booker drip feeds us with it is impossible for any intelligent reader to form a reasoned view about whether or not a miscarriage of justice has occurred. It may have. Or it may be that the facts of the case (whatever they are) warranted removal, and warranted continuing removal. Or it may be that the case was finely balanced and had the mother retained competent legal representative throughout proceedings and acted on advice she would have been able to achieve a better outcome. Frankly, who knows? We are not in the least bit informed by Mr Booker’s account. We can only speculate, gossip. It is in the public interest for journalism to expose injustice. This however does not expose, it merely inflames, corrodes, obscures. You only have to look at the comments to see the full horror of how fast these things can gather pace, go “monster”.

Booker gets more pointed as time goes on about the depth of the professional conspiracy. By 5 March, the system is “rigged in every way”, and (we are told) parents are not allowed to speak whilst lies are told and experts cannot be questioned. I wonder if Mr Booker has ever sat through an entire final hearing in a care case, where it is the procedure that the Local Authority present (as a matter of fairness to the parents) all their evidence first, with the parents only giving their evidence at the end. And as for the assertion that experts cannot be questioned, I suppose that I must have imagined all those late nights, crafting killer questions to pose to the shrink my client wants me to destroy in the box the following morning. He goes on:

“One of the most disturbing features of this system, which protects itself behind a wall of secrecy, is how far it goes to ensure that aggrieved parents are represented only by lawyers who are themselves accomplices of the system. Again and again parents are bemused to find that the lawyers they were advised to use seem unwilling to challenge the case being made against them, however spurious.”

It is serious enough if a lawyer refuses to act on instructions. This is professional misconduct. But what Booker alleges is something far far more systematic than the odd failure on the part of an individual member of the bar: he alleges that the system ensures that parents are only represented by accomplices of the system. An epic conspiracy to deny justice to parents and to permanently remove children from their parents, by the parent’s own lawyers. For which there is no evidence at all other than that some unidentified parents in cases about which we know almost nothing have said that their lawyer didn’t act on their instructions. This makes me sick. Not for my sake, but because when my client doesn’t trust me I can’t take them with me, and I don’t get such good results for them. In care cases you have to ask clients to trust you, to conduct themselves and their case in ways which run contrary to every instinct and every learnt behaviour – in order to get them to a point where they can get their kids back. And without trust it falls apart. And when your client is the product of generations of abuse and dysfunction and neglect and poverty – trust is very precious, very fragile. It is easily destroyed by a poisonous whisper saying that you mustn’t trust your own lawyer because she’s on their side. I say quite openly that I do sometimes advise clients not to fight an interim care order now, but to perhaps save the argument for the point at which they can stand up and say they are clean of the heroin, or that they have managed more than a fortnight without a bottle of vodka a day. I do advise them to wait until we have enough evidence to succeed, to avoid a pointless, heartwrenching, exhausting, demoralising and possibly strategically damaging interim contest. And when there is a chance that we can get the kids back in the short term I will tell them this is so and I will do everything in my power to achieve that. That is what I owe to my client. Not to anybody else. Telling a client that she is entitled to have a contest today but advising her that in my professional opinion we won’t succeed is not the most enjoyable part of my job, but it is a job I take seriously, and giving unwelcome advice is part of it. The day I promise a client she’ll have her kids back at the end of the day when I know this is pie in the sky, the day I refuse to act on instructions is the day I should find something else to do. Clients often say they have no choice on days like these – in fact they have Hobson’s choice because they don’t have power, because they don’t have evidence. Booker sounds just like my clients when they struggle to take on board my advice, unable to assess the situation dispassionately when the situation they are in is so awful. That lack of objectivity is entirely understandable in a parent, but it is a failure when seen in a professional – whether that be a lawyer or a journalist. There is no indication that Booker ever considers the possibility that parental testimony about these issues may be imperfect, because they may be susceptible to suggestion by a well intentioned journalist with an expectation of injustice, or that the lawyer and the social workers are the easiest targets when a parent wants someone to blame.

Booker complains of the wall of secrecy, but the awful irony is that he and others like him depend upon it to whip up their fevered support. Tear down the wall I say, and expose the distorted fictions that are so often masquerading for truth in our newspapers. This sort of stuff is damaging public confidence in the justice system (see this post for some views from David Jockelson on how well we are doing on that front at present), and it is parents who have read this kind of story that are least able to engage with their solicitors and survive the hard hard process that is the care system. Far from righting wrongs, this type of journalism corrodes the trust that is vital in order for vulnerable parents to achieve access to justice.

POSTSCRIPT 06/05/11 Hat Tip to Family Lore for pointing out this judgment regarding Mr Booker.