Brought To Booker

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.

17 thoughts on “Brought To Booker

  1. I am very pleased that you have responded to this. For some time now, I have toyed with responding to the articles in question, but a quick read of the comments below them have persuaded me against it.

    The system is far from perfect, but it is an awful lot closer to perfect than it is to Brooker’s Kafkaesque description.

    I would say that there are some very provoking investigative journalism articles to be written about why so much money is spent in family justice on getting psychologists to diagnose what treatment a person would require, and so little on making sure that after the proceedings end that the person gets any treatment so that they don’t come back with baby number 2 in exactly the same position.

    Equally, there are articles to be written about the length of time it takes to get anything done in the family courts and whether that serves anybody involved.

    There are the odd miscarriages of justice too – I don’t know that care proceedings have anything that stacks up quite as badly as Sally Clarke or similar in crime, but I dare say that there are some.

    Sadly, I think finding out whether the court is considered fair by people who have had one of the worst experiences you can get in life, by having your children removed and not getting them back, is likely to give a skewed account. It is a little surprising that investigative standards are not applied, if I walked round a prison and 85% of the prisoners told me that they were fitted up and hadn’t done it, I would dig a little deeper before accepting what they said as factually accurate.

    More and more, I come to the view that properly anonymised judgments, available and free to be published or quoted, as they are doing in the Wolverhampton pilot is the way forward.

    Most parent representatives I’ve met in family law do a very hard job (as I did when I represented parents), and work tirelessly to get the parents a fair opportunity to show that they can parent to what is a pretty low standard (‘good enough’ is in practice nowhere near ‘average’). Sometimes parents succeed and pretty much everyone in the case is happy. Sometimes they don’t, and more or less everyone in the case is to some extent or other sad.

    • Thanks Andrew, I agree there is plenty of material for good and interesting public interest reporting. And there are many things that ought to be probed and are not. Reporting could be a tool to help to make the justice system work better and to increase public confidence in it. It’s a shame that isn’t happening.

  2. Thanks for such a thorough blog…

    The whole child snatcher image and emotive language does nothing to serve the cases where decision making could be called into question, and does nothing to help children to resolve the issues that have led them to be in care. I am an adoptive parent and one of my main concerns at the time of our adoption was to make sure that we were not ‘snatching children’ who should or could have remained with their parents.

  3. It is so very depressing isn’t it. Christopher Booker appears unable to apply to these cases the objective analysis and scepticism that any journalist would normally apply to a story.

    And, like other journalists, he uses the “secretive family courts claim” to justify everything, including not doing any further digging – as you would expect a journalist to do.

    It all irresistibly reminds me of the great satanic abuse scandals of yesteryear. Lots of sound and fury and accusations of conspiracy at highest levels – and bugger all evidence.

  4. I’ve stopped reading the Telegraph because of Booker’s campaign but I couldn’t help noticing that, having grown tired of fibbing about the family courts, he’s now turned his attention to asbestos litigation instead. Apparently, the belief that asbestos causes mesothelioma is a fantasy invented by evil lawyers and, if you do get mesothelioma, he thinks you shouldn’t get compensation unless you can prove where the fibres in question came from. Oddly, he’s not responded to my question about how practicable it is to mark each fibre of asbestos with the name and contact details of owner so that they can be sued when/if they end up causing mesothelioma.

  5. […] is not the first to criticise Booker’s approach. Family barrister and blogger Lucy Reed also recently took Booker to task for his campaign against the family law system, which she says is making the jobs of family […]

  6. […] have written two posts: “Brought to Booker” and more recently “Booker Booby Prize” and “Booker v Bellamy Round […]

  7. I am concerned Familoo,Pink Tape and other posters appear to live in the Science Fiction Alternative Universe from myself, organisations attempting to advise families and Mr. Christopher Booker.

    This is the one, like a “Sliders” episode, where Family Court judges can actually judge, aren’t violently hostile to the mothers and listen to the family’s evidence. Also where SS Dept’s do not embroider their evidence, expert witnesses are actually impartial and the family defence team actually mount a defence and put in clear statements, instead of “negotiating” with the SS Dept’s legal team.

    All this takes place behind an Omerta wall of secrecy, which is why it happens, as no-one is accountable.

    Incredibly both judges and legals have become incredibly defensive with violent attacks on Mr. Booker, Ian Josephs and other advisors at length in judgements.
    They are clearly trying to cover up and refusing to see anything is wrong.

    I might add incredible sums of public money are funding their activities which is why they must be called to account.

    • Can I take it that your use of the word violence is hyperbolic rather than literal?
      Rather than refusing to to see that anything is wrong – I have often said there is lots wrong with the system – I share this view with most other family lawyers and judges freely admit.
      I think Mr Booker is quite able to defend himself from attack, although he has yet to do so by direct engagement with the blogging community. All the criticism I have seen of Mr Booker is of his journalistic methods and standards – and is supportive of good and robust analysis and challenge of the family court’s work through high quality journalism.

  8. No I meant verbally and emotionally.

    The judgement by Bellamy is truly amazing and not alone.

    By their behaviour and judgements many judges clearly do not see anything is wrong with the Family Courts or attitudes to mothers as the “hysterical women” which in any other context would cause outrage by feminists.

    Seen the judgements

    Many of the cases Christopher Booker writes about are our cases so we are in a position to know his reporting is in fact accurate and no different from Camilla Cavendish three years ago.

  9. “It all irresistibly reminds me of the great satanic abuse scandals of yesteryear. Lots of sound and fury and accusations of conspiracy at highest levels – and bugger all evidence.”

    It’s just as well you didn’t appear for an SS Dept. on an SRA accusation case. You would have been torn to shreds.

    The evidence was absolute and we knew who the Fundmantalists and Fundamentalist organisations were who had started these stories and the theological reasons why, and this was lapped up by foolish secular SS Depts.

    It is being discussed on another site at the moment.

    They believed The End of Days was at hand and all this demonic activity was the result.

    This was the denouement of the Child Protection system and the reason for the development of secrecy.

    Another one took place last Saturday! It was the “Rapture” and I got left behind!

    Ha! Ha! Ha!

    Legals would do well not to discount the reporting of the press on Child Abuse theories which prove to be false.

  10. I think the point here is that the finality of adoption rulings, and the terrible injustice of removing a child from its parents mean that the courts must be set up so that everything that can be done to prevent forced adoptions from occurring incorrectly is done. For a start judgments must not be based on the balance of probabilities only on concrete evidence. Finally no system should be trusted this includes the law. The best methods of guarding against abuse of power is independent oversight and above all transparency especially transparency to the media so that public awareness can be used to change the law when it is operating in ways that the populace deem inappropriate.

  11. […] Brooker distorts facts and tells outright lies about social workers and social work departments. This post has quite a lot of detail about it. This High Court judgement, paragraph 185, criticises Mr Brooker […]

  12. […] It would appear, none at all. Christopher Booker is sadly not alone in simply accepting uncritically any complaint made by parents about the child protection system. And what is worse he seems to go even further and ignores published judgments and established facts when writing his articles. See this post from the Transparency Project. He has been criticised by a Judge as being ‘unbalanced, inaccurate and just plain wrong’  in his reporting of family cases. See this post from the UK Human Rights Blog. See further this from Pink Tape in 2011. […]

    • Mark,
      I’ve edited out your comment partly because it is way too long, but mainly because it contains private details which I can’t publish.

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