Sunday Times July 6

Sunday Times July 6, 2003

Secret courts that steal our children

BY: Stuart Wavell

Kafkaesque children’s courts sitting in private are playing God with the families that come before them, writes Stuart Wavell.

They sound like a chilling legacy from the bad old days of the Soviet Union — secret courts that have taken thousands of children from their families and put them into foster homes or farmed them out for adoption.
There can be no appeal nor legal redress for most traumatised families. Lone judges, sitting without a jury, sever loved ones from each other on the word of omniscient medical “experts”. Any parent foolhardy enough to protest to the press risks dire penalties.

Yet this is the Kafkaesque nature of family courts in England and Wales — an iceberg of civil litigation that lies submerged beneath a few high-profile criminal cases that hit the headlines. In a blaze of publicity last month, the pharmacist Trupti Patel was found not guilty of murdering her three babies. Earlier this year the solicitor Sally Clark was freed from jail after being wrongly convicted of killing her two baby sons.

Both cases cast doubt on the credibility of Professor Sir Roy Meadow as an expert medical witness — now under investigation by the General Medical Council — but the joyful outcomes partly reflected the high standard of proof required in criminal cases.

By contrast, family courts do not demand that a doctor’s diagnosis of child abuse should be beyond reasonable doubt, but rather on the balance of probability. The courts’ culture of secrecy, sternly policed with the commendable aim of protecting children’s identities, has had the unintended effect of shielding experts’ flawed deductions from public scrutiny or comment. As a result, an unseen and unheard process of winnowing children from their parents is taking place, largely on the say-so of doctors whom they have often never met.

According to Beverley Beech, chairwoman of the Association for Improvements in the Maternity Services: “It is, I believe, an underestimate to say hundreds of children have been taken away from their families. It must now run into thousands. I have seen with my own eyes newborn babies seized from their mothers in maternity wards.”

Statistics suggest that each year thousands of families undergo the ordeal of having to prove their innocence against false accusations of child abuse. According to government figures in 1997, there were 160,000 reports of child abuse in England and Wales, of which 120,000 were ruled false. Of the remaining 40,000 cases, 25,000 were put on the “at risk” register, but the number of people pursued through the courts and separated from their children is unknown.

The main instrument of the final processing is the family court. When a child has died, and in other serious cases, a criminal prosecution may be pursued.

William and Michelle Carter (not their real names) lost their four children in 1999 on the sole evidence of Meadow at a family court; the elder two, aged 17 and 14, are in foster care and the younger ones, aged eight and six, have been adopted.

The family’s future was decided at the family division of the High Court in London, the largest branch of the system and the scene of a protest last week by angry parents, many of whom have had children taken from them on Meadow’s evidence.

Most cases are heard in county courts, presided over by specialist district judges. Children, supposedly protected by hearings in camera, do not appear in person but are usually represented by an independent social worker.

The Carters’ nightmare had begun nearly a year earlier, when their youngest daughter, then 16 months old, fell ill and was taken to hospital where she suffered multiple heart attacks and a stroke.

Although she made a full recovery, six months later social services contacted the Carters to say a urine sample taken from the girl had shown traces of a powerful drug. Police dismissed the case after the Carters explained that one of the tablets prescribed to their eldest daughter to stop her wetting the bed must have fallen on the floor and been accidentally swallowed by the infant.

However, the Carters ended up in a family court where Meadow concluded that the girl had been poisoned by her mother while the latter was suffering from Munchausen’s syndrome by proxy — the condition coined by Meadow in 1977 for women who hurt children to draw attention to themselves.

The next day the children were taken away. The Carters’ were told to go home and forget they ever had four children. That night Michelle attempted suicide. “We were hung, drawn and quartered by Meadow,” says William. “He never backed up his diagnosis with evidence. Why was a paediatrician giving evidence on toxicology?” The best the couple can hope for is eventually to get their elder two children returned to them. “Unfortunately,” adds Carter, “it’s too late for the younger two.”

Cases involving Meadow may just be the tip of the iceberg. To stop more such miscarriages, Carter would like to see several changes to family courts, notably a bench of three judges instead of one and the proceedings open to media coverage — while protecting children’s identities by the same process as applies in the criminal courts.

Recently social services asked him to stop talking to the press. “They are threatening me with contempt of court, but I have done nothing to identify the children. We know we have done nothing wrong.”

Such threats are not uncommon; a family court’s punishment can be draconian. Last month Mark Harris won a 10-year fight to gain full access to his three daughters. But for picketing the homes of judges who had denied him and other desperate fathers access to their children, he was sentenced to 10 months in prison for contempt of court.

Marilyn Stowe, a Leeds family solicitor, says that protection of children is the family courts’ paramount concern. “But if any injustice occurs, the fallout is that it’s very hard to make it public. And the court relies so heavily on the evidence of independent experts.”

Technically, there is a mechanism for appeal, but the grounds are so narrowly defined that few people succeed. “You’ve got to show effectively that the judge has exercised his discretion wrongly and made a mistake,” says Stowe.

Some commentators on the Patel case suggested that the more sensitive family courts would be a better place to deal with a suspected mother, rather than putting her through a public ordeal.

However, “sensitive” is not an epithet Mark and Karen Haynes would apply to their harrowing experience of a family court. In essence, the unexplained death of their son in hospital and Karen’s subsequent pregnancy resulted in an order that led to their newborn daughter being seized 20 minutes after coming into the world.

“There was an adversarial element to the court proceedings,” says Mark. “Compared to a criminal court, the family court was a little less formal, but it was very much a point-scoring game between barristers.”

Once again, Meadow’s opinion — that Karen Haynes had smothered her son — was believed by the judge, even though seven experts disagreed. And, once again, the couple were told to keep their mouths shut. To their dismay, the person appointed to represent their daughter’s best interests urged her speedy adoption, on the basis that before the age of two she would forget her parents.

“The guardian wasn’t independent: she was singing from the same hymn sheet as the other social workers,” Mark Haynes complains. He, too, wants the family courts’ secrecy removed and the introduction of their own independent medical advisers.

One of the vaunted advantages of family courts is that, unlike their criminal counterparts, they do not seek to blame or punish, but rather to create the best upbringing for the child. However, the consequences of their decisions can be life sentences of misery.

Many parents are effectively found guilty without a trial and cannot erase the stigma. Even those exonerated of any wrongdoing find it difficult to shake off the bureaucratic repercussions.

When Rioch Edwards-Brown satisfied a judge that her son’s shaking fit was caused by a difficult premature birth, she thought that was the end of the matter. “The judge said, ‘Go home and start your life all over again’,” she recalls.

However, when she took her son to hospital for a check-up she discovered her case remained on file. “I thought everything was done and dusted. It turned out I had been cleared by the court but not by the system.”

Every visit to the hospital triggered a follow-up call by the home visitor. She discovered she represented a potential threat to her son until he was 18 and could not bring herself to play with him until he was 7½ in March, when she won her seven-year, £50,000 battle to have the records amended.

Edwards-Brown believes many shortcomings would be solved by a diagnostic protocol she has dubbed Riordan’s Law. She wants babies with potential “violent shaking” injuries to be seen by brain, eye and bone specialists within 24 hours of hospital admission and reviewed after 14 days.

“Everything starts and stops with the doctors, who don’t have to prove their findings,” says Edwards-Brown. “That’s where we need to concentrate.”

All names have been changed