Justice cannot be done behind closed doors 20/03/04 TELEGRAPH
THE SECRECY OF THE FAMILY COURTS
In today's Telegraph Magazine, we publish a lengthy personal account written by a mother who was accused, along with her husband, of deliberately harming her own baby son by violently shaking him. Both parents feel they have nothing to conceal as they recover from that ordeal, mercifully reunited with their child after a protracted battle with social services. But for legal reasons, we have been forced to change almost every name in the story, to disguise the identities of the "expert" witnesses, and to preserve the anonymity of all the lawyers, doctors and social workers involved in the case. Rose and Karl James are not the real names of the couple who nearly lost their child, but their experience is real in every chilling detail.
The secrecy in which our family courts operate is one of the disturbing aspects of many of the cases of recent years relating to the supposed "epidemic" of child abuse. These courts have the widest powers, including sending children for adoption, when a parent has not been convicted or even charged with any mistreatment. In theory, shrouding the workings of family courts in secrecy is supposed to protect the child's rights, but in practice it shields experts and social workers from proper public scrutiny.
Moreover, the notion of children's rights creates an assumption - false in all but the most extreme cases of bad or abusive parenting - that children have interests that are somehow distinct from those of their parents. That assumption allows the state to interpose itself at will between a child and its parents, almost to act as a mediator between two opposing parties.
This assumption is questionable in itself, but the consequences become grotesque when, as is frequently the case, social services reveal themselves to be adversarial towards the parents or simply incompetent. Those of us who have failed to secure the most simple service from our local authority - such as getting a pothole repaired or a recycling bin delivered - can only imagine the horror of parents who find their local authority is seemingly empowered to decide whether they should keep their own child.
In cases of suspected child abuse, normal evidential requirements of criminal cases are lifted, and judgments frequently turn on the opinions of paid "expert" witnesses. The normal presumption of innocence underlying our criminal justice system is turned on its head, and parents must often prove a negative - that they did not harm their own child. The most devoted and competent mother, who knows perfectly well that she would never harm her own child, cannot prove that a brain haemorrhage was caused by an accidental fall rather than by deliberate, violent shaking. In truth, very few sane parents harm their children. When they do, alcohol or drug abuse is frequently a factor. But in the current climate, doctors and social workers act as though it is commonplace, either because they subscribe to fashionable medical theories or because they fear later being accused of lack of urgency.
As it happens, the medical theories underpinning shaken baby syndrome are increasingly being challenged, just as Professor Sir Roy Meadow's Münchausen's syndrome by proxy began to unravel with the Sally Clark case. Scores of parents in this country have had their children taken away because of the over-zealous application of theories relating to "syndromes" that may never have existed. The best way to ensure there are fewer miscarriages of justice would be to allow some light into the workings of our family courts, so that experts are held to proper account for opinions that can destroy family life.
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