Child protection - Justice for parents
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“FILE
ON 4”
Transmission:
Repeat:
Producer: Andy Denwood
Reporter: Allan Urry
BBC reporter: Now Allan Urry
examines the way in which the legal system deals with some of its most
emotionally charged cases.
ALLAN URRY: It’s a central principle of our legal system
that justice needs to be seen to be done.
Yet inside the courtroom behind close to where I’m standing, decisions
are taken every day about how families live their lives, and they’re taken in
secret. I can’t report what is said
without the risk of breaking the law and you can’t go in and hear what is at
stake. These are the family courts where
care proceedings are heard confidentially to decide the future of children
thought to be at risk from their parents.
They also order that babies be removed form their mothers.
Paula: “I'd
just had an emergency caesarean. I was
holding her. They had a court order to
remove her from the hospital. It took
awhile before they could even get her out of my arms.
ALLAN URRY: Such extreme measures call for
the most through examination of evidence, last month the Government promised to
review any cases in which expert medical opinion may have wrongly influenced
the outcome of hearings. But File on 4
has discovered that some of these controversial cases raise more fundamental
questions about the way care proceedings are conducted. Is there injustice hidden within the secret
world of the family courts?
WILL CARTER: This
was taken in January of 99, a few short weeks before they were taken from
us. You can clearly see that they are
four very close children. This was the
end of the family life, of all six of us being together.
ALLAN URRY: Eighteen
months ago, File on 4 raised serious questions about the case of the Carters,
as we’re calling them, who now have to rely on photographs to remind them of
their four children, taken into care.
The two youngest were subsequently adopted. The parents, Will and Michelle, came under
suspicion after the collapse of their daughter, then a toddler. She was saved by doctors in hospital and
after she recovered was allowed home.
MICHELLE CARTER: All
of the sudden we had a letter come through the post from the social services
saying they wanted to see us with a police officer because a urine sample had
turned up, been tested and had a drug in her system, that wasn’t administered
by the hospital.
Allan Urry: There
was concern the child had been poisoned.
It set in motion a chain of events for the Carters went from bad to
worst.
MICHELLE
CARTER: We
had a child protection meeting of 13 professionals; eleven of them said they
had no concerns with the children. The
social worker and his manager said yes they wanted all four on the at-risk
register. The chairperson went with the
two, not the majority. They then applied
to the Court to remove my four children from our care.
Allan Urry: It was
the view of an eminent paediatrician Professor Sir
Roy Meadow that Michelle had forced a number of tablets down her daughter’s
throat leading to the poisoning. She
continues to deny that suggestion, offering instead the explanation that her
child probably picked up a single tablet, which had fallen on the floor. Part of what helped to determine which
version was the most likely rested on an interpretation of the toxicology, File
on 4 commissioned an expert toxicologist to examine the case for poisoning against
the Carters. It cast strong doubt on the
testimony of Professor Sir Roy Meadow, who’s not a toxicologist.
Armed with this new
information Will Carter went back to the Family Court with an appeal in
mind. In Family Court no one who’s not
formally a part of the case sees official documents without the Judge’s
approval. Mr
Carter wanted permission to allow the expert a chance to review the original
findings.
WILL CARTER: We
had to go to Court and again ask the Court’s permission to show Professor
Meadow’s report and the medical records to a specialist, so that they could
give official opinion to the Court.
Without this information, we couldn’t stand a chance of launching a
successful appeal. Now at the Court, the
social workers said fine and they had no problem with us showing the
paperwork. Everything seemed fine that
we were going to go in there and we were gonna get
what we wanted. Until we spoke to the
judge and he said, “No”. And what he
said was there was no provision in the Family courts for us to clear our name,
all we could do was to launch an appeal or ask for judicial review. But again without this information we
couldn’t do either of those. So he wouldn’t
give us permission to show the paperwork, so that led us to a catch-22 situation.
Allan Urry: In fact
the family could’ve appealed the decision of the judge not to grant their
request, but even then according to a leading QC, Alan Levy, the odds are
attacked against parents like the Carters.
Alan Levy: The
parents and others are quite right to feel that there are real barriers in the
way of appeals. It’s very difficult to
appeal decisions, which essentially turn on a judge’s discretion.
There was a case some
years ago in the House of Lords, which said that unless you can show that the
decision was plainly wrong, or there was some obvious clear error of law, or
something procedurally had gone drastically wrong, then there shouldn’t be an
appeal. Of course, all cases or many of
them can’t simply be relitigated. But I think maybe the pendulum has swung too
far against appeals and I would look for a certain relaxation, particularly
where medico-legal issues are involved where one knows that there are real
risks of miscarriages of justice.
Allan Urry: Mr and Mrs Carter also say faced
with the eminent paediatrician, Professor Sir Roy
Meadow, they’re legal team didn’t argue the case strongly enough. Will Carter says chances were missed during
what he believed were misinterpretations of some medical evidence.
WILL CARTER: As
an example, he accused us of poking something into our second youngest
daughter’s ear, which caused it to bleed.
Now in the medical records it clearly states that yes she had a bleed. We had the GP that Saturday. Later that day we also had her at the local
hospital ‘cos if it were still bleeding. Now he contends that would prove that we were
abusing the child. What he fails to
mention is that three days later a follow-up ENT appointment that had been made
on that Saturday, they’d taken a swab and it clearly showed that she’d got a
severe inner ear infection, which had built up pressure behind the eardrum
which had perforated it, which had caused the bleeding and everything. But he failed to mention this. Now to my mind, surely this is what the
solicitor should have done in the first place, they should have took what
Professor Meadow was saying and compared it with notes, exactly what I
did. They’d had done it an awful lot
faster than I did because obviously they should’ve been used to doing this sort
of research. If I can do it, totally
untrained in legal matters, not knowing anything about medical matters, if I
can find the information to disprove then why didn’t they?
Allan Urry: It
was only much later after they’d lost the care of their children,
that the Carters discovered the solicitor they’d hired from their local
High Street practice, had not previously acted in the complex and specialized
area of care proceedings. Comparatively
few have the training and experience needed for such work. Children who are represented separately from
their parents must have such a person.
But according to Professor Christina Lyon, director of the Centre for the
Study of Child, the Family and Law, at
Prof Lyon: Children
in care proceedings have to be represented by solicitors from the Childcare
panel. That’s a body organised
by the Law Society, you have to have particular tests, which have to such. You have to satisfy examiners. You have to be interviewed. You have to go through a very lengthy process
and quite challenging process in order to get on the childcare panel. But it is a solicitor representing children
have to be on that panel and not solicitors representing parents. So very often parents may not realise that what they should be looking for is perhaps a
member of the childcare panel. They’ll
go to a ordinary solicitor, somebody they’ve used
before perhaps for buying the house or whatever and they will then find that’s
not somebody who has the same level of expertise or the same familiarity with
the system as those who are working in it day by day and who are on the
childcare panel.
Allan Urry: It does
seem to put parents at a significant disadvantage?
Prof Lyon: It
does and I personally have always argued that those representing parents should
undergo the same process as those on the childcare panel and should be members
of the childcare panel.
Allan Urry: This
isn’t the only anomaly, which sets the family courts apart. Proceedings like the ones which take place in
the building behind me, are effectively a risk assessment, which put the
interests and welfare of the child first.
As in other civil cases, judges have to be satisfied on the ‘balance of
probabilities’ before they make an order.
It’s a lower standard of proof than criminal cases, which require
‘beyond reasonable doubt’. . And there’s no jury deciding on guilt here. Instead judges have the difficult task of trying
to look into the future to predict what might happen to children. That can sometimes mean a consideration of
evidence, which might be ruled as inadmissible in the criminal courts. At its worse that can leave unproven
allegations hanging over those involved.
Naomi:
My daughter was absolutely
petrified when she’d seen the policemen through the window. She just flew into the wardrobe and hid. And I went in to get her out from the wardrobe
and brought her into the lounge and sat on the sofa with her and she was just
hysterical, clinging round my neck and pleading with me that she could stay
with me.
Allan Urry: A
family on the run. They’d already had
one child, a son, taken into care. Faced
with the prospect of their daughter going the same way, her grandmother
absconded with her. The child’s parents
found out where they were staying at an address in Scotland, and made their way
there, they say with the intention of bringing them both home. But the disappearance and caused a hue and
cry in the northeast of
NaomI: The
police all come into the house and it was just a mass of police officers. She just didn’t even understand what was
happening. Eventually they informed me
that one of them was a social worker and one was a child protection police and
my daughter was to go with them. My
daughter at that point came totally hysterical and just wrapped herself around
me and screamed hysterically. They
allowed this to happen for a little while and then they told me if she didn’t
go with them now [um] at this moment, they would remove her by
force. So it was up to me whether my
daughter got hurted or not. I had to persuade her to go with them. So I pleaded with her to go with them.
Allan Urry: The
family had become disenchanted with what they regarded as an unfair process,
which had been triggered by concerns about Naomi’s son. The boy had special needs and a complicated
medical background, for sometime doctors couldn’t entirely agree about the
conditions from which he appeared to suffer.
For the family they
were very real conditions, but concern began to grow that Naomi, the mother,
may have been suffering from Munchausen syndrome by
proxy. That would mean she was
fabricating or inducing illness, convincing doctors to treat her son for
conditions he didn’t have because she craved the attention the medical
interventions brought about. The boy’s
mother bitterly contested this accusation.
Naomi thought her son had epilepsy.
She claims she’d seen him have fits, including somewhere he became
vacant, known as absences. She says
during a period in hospital, where he’d been admitted for tests, staff had seen
them as well.
NAOMI:
The nursing
staff had seen absences and other types of seizures
that my son had, had witnessed drop attacks and again noted this all down within
the hospital records.
ALLAN URRY: What’s
a drop attack?
NAOMI:
They
completely go from a standing position to a drop.
ALLAN URRY: Collapse
on the floor?
NAOMI:
Yeah just
collapse.
ALLAN URRY: And who was reporting
that they’d seen that?
NAOMI:
It was a play
coordinator that was actually in the play hall with the children, had witnessed
the first one and then witnessed another two after that one, this was in
hospital.
ALLAN URRY: Did the
Court hear this evidence?
NAOMI:
One of the
doctors came forward and actually argued completely with the judge and with
local authorities, to stick up for his staff, that they did see the
seizures. But the judge just said it
didn’t seem to matter. He was more of
the opinion of, that I’d convinced everybody else to see things that weren’t
there.
ALLAN URRY: It
wasn’t only what the court disbelieved but other issues raised by medical
experts, which angered the family.
Medical assessments had been made commissioned. One was from a paediatrician
who made a most serious yet unproven allegation. Thirty years ago the boy’s grandmother, who
we’re calling Mary, had lost three of her children when they were young. Twin sons and a daughter had died within the
space of twelve weeks. This to the paediatrician looked suspicious. He made further inquiries and decided it was
highly probable Mary had suffocated or poisoned them. He further suggested that years later she
tried to suffocate her grandson, a possible explanation for his brain
damage. And that it was she who was
responsible for passing down to the boy’s mother, her own daughter, the behaviour of Munchausen’s or MSBP as it’s sometimes
known. For Mary, this exhumation of the
past was an outrage.
MARY: It is
horrendous to watch your children die.
It was devastating to the family, to lose one child, but to lose three,
going from one hospital, general hospital, with two children in different
hospitals, and then to try and bury three children after all this, really was
something I couldn’t even comprehend.
But I got through it. But the
idea of thirty odd years later someone brings up this wild mind suspicions that
I’d murdered him or her.
ALLAN URRY: There
were post mortem examinations on two of your children weren’t there? What did those post mortems examinations
show?
MARY: The
post mortems examinations on the first twin showed that he died of heart
failure around about the second or third day that he entered hospital. They had kept him artificially alive to try
and do tests on him. I wasn’t aware of
this at the time. It was only after I
read the reports, which was about … about two, three
years ago, I just got the reports on them.
And I found it quite hard to take that, you know, that although I’d been
standing at that child’s side, I thought he was gonna
survive, they’d no chance of surviving.
When the other wee boy died, which was about seven weeks after my
daughter, and they eventually told me that yeah, the children had Cystic Fibrosis.
He had had a terrible death when I read through his records because he
had deteriorated, this was the other twin, and in other words didn’t have any
chance of surviving from day one. And I
find it very hard now, to believe that someone could say I murdered him or her.
ALLAN URRY: It
wasn’t only the seriousness of accusations, which have grieved Mary. She believed it was the foundation of the
expert’s argument, that she and her daughter harmed children, and that
therefore her grandson and granddaughter should be taken into care. But it’s a feature of the family courts that
you must be made a party to the case and Mary was not. It was her daughter and son-in-law whose
suitability as parents was at issue. Nevertheless with such an accusation
hanging over her, Mary wanted a chance to be heard.
MARY: I
went forward and handed the Judge a small statement and asked him straight off
for the proceedings to be stopped. Now I
felt that now I was aware that not only had people said things about me that
was wrong and I wanted a chance to come in and bring my legal back into Court
and he totally flipped on me. He went
on, “Under no circumstances am I stopping this court for you. I have already ruled that you’re not gonna be allowed in this court”. And I had quite a battle with the judge about
it, to the point that I went to the, the stenographer, “I want that recorded in
the records, that’s twice this man’s refused me in here to defend myself and
yet I’m being accused in this Court”.
And he told me just to more or less quieten down.
ALLAN URRY: But
were you actually being accused of anything in the Court?
MARY: To
me yeah, according to this professor’s records I was being accused of murdering
my children. It says that I
intentionally suffocated ... it couldn’t be ruled out that I intentionally
suffocated or poisoned them. To be me
that’s being accused.
ALLAN URRY: There
is a technical difference isn’t there, it couldn’t be ruled out is a bit
different
MARY: Yeah
ALLAN URRY: to
saying that you did it?
MARY: But
not to me it’s not. Not to me, that in
his opinion, it couldn’t be ruled out that I intentionally suffocated. Of course it could be ruled out. I found the records a year and half
later. If they’d found the evidence on
these children, of course it could have been proved that I didn’t have any
wrongdoing with these children and this was weighing against my grandchildren,
to take them, to prove that I was a major Munchausen
mother and had taught my daughter to be MSbP and therefore my granddaughter
maybe tainted. I felt I had an awful lot
to get into that courtroom to fight for and I wasn’t allowed.
ALLAN URRY: In the
end the Judge decided to discount the theory that Mary may have killed her
children. But he was persuaded by the
rest of the paediatrician’s case against the parents
and by concerns raised by the other medical experts. He ordered that boy and his sister be placed
in care. The family
haven’t seen them for three years.
For them and others families who protest their children were wrongly
taken, the Government appears to be offering some hope. Convictions overturned on appeal in the
criminal courts have freed mothers wrongly jailed for killing their
children. Last month the Solicitor
General, Harriet Harmon, told MPS the ruling left her concerned about the
implications for the care process:
Harriet Harmon: We
will make sure that we recognise that not only
injustices done in the criminal justice system, but any potential injustices in
care proceedings are identified and acted on.
ALLAN URRY: But since that announcement on the 20th
of January, it’s all gone quiet. We
wanted to interview Margaret Hodge, the children’s minister, on this matter,
but she declined. Her department has
been given the responsibility of deciding what to do next. A spokeswoman told us, “The department is to
consider how it might identify any injustice in care proceedings, before
considering the next move”.
It’s clearly a
complex area of acute sensitivity, but for the Conservative spokesman on health
in the House of Lords, Fredrick Howe, there’s a need for urgency:
Lord Howe: Over
the last four years, I have received more letters than I can count, more emails
that I count, from parents who have suffered exactly the same kind of torture,
all the time protesting their innocence.
Now of course, in my position, I’ve got to be very careful, it is all
and well, a parent saying that they are innocent of abusing their
children. You’ve got to be careful that
they aren’t trying to hoodwink you. But
time and again, I have found that the circumstances of children being taken
into care, or even in sometimes into adoption, are so horrifying as to the
apparent ease which with this has happened, principally on the strength of
expert evidence in family courts, that I have made it my business to bring this
issue to the Government’s notice. We
cannot put wrongly accused people in that position, difficult as it is, this review has to be undertaken.
ALLAN URRY: It’s a
vast undertaking though isn’t it, particularly with all the paperwork involved
in these cases, many of which are highly complex?
Lord Howe: Highly
complex, I have no allusions about that.
It will take time. But are we
really saying that it shouldn’t be done?
The removal of a child from his or her parents is one of the most
draconian things that a state can do and if the state has made a mistake, then
the state has got to take steps to correct it.
ALLAN URRY: We
wanted to interview the President of the Family court division, Dame Elizabeth
Butler-Sloss, about the issue but we were told she
was too busy to accommodate us. For
David Spicer, a barrister who chairs the British Association for the Prevention
of Child Abuse and Neglect, there should be no rush to judgement. He warns against applying the rulings of the
Appeal courts in criminal cases to family hearings:
David Spicer: In the
criminal jurisdiction, the concern of the Court is to determine whether or not
a defendant has been guilty of committing particular acts and the Court has to
be sure that they have and if there’s a doubt.
Then the defendant is entitled to be acquitted. In the jurisdiction, which is concerned with
the welfare of the child, the decision and judgements,
which have to be made, are more complex.
If there is a risk that someone may severely injure a child in the
future, then decisions have to made to remove that
child. Now in stark terms, that may
mean, that children may be removed from parents, inappropriately. But that stresses the need to be extremely
cautious in the consideration of the material and the evidence that justifies
that decision being taken.
ALLAN URRY: But if
that does happen then parents just have to live with it?
David Spicer: Well
they have to live with it in the sense that within any system, there are going
to be cases in which the outcome is not the appropriate outcome.
ALLAN URRY: Ministers
and senior judges must decide what will happen for those who say they should’ve
been allowed to keep their children because expert evidence was wrong. But the day-to-day decision making about
whether to take a child into care is made not in the higher courts but by the
lowest tier of the judiciary. It’s
actually magistrates who issue orders in 70% of cases. For Professor Judith Masson of
Prof Masson: One
might have thought that within a system that has specialist judges, that we
would at least have a specialist county court judge or a district judge hearing
these cases, rather than a lay magistrate, who probably hears cases very, very
rarely and can’t develop an expertise or the sort of, confidence and
independence that the professional judiciary have to make difficult
decisions.
ALLAN URRY: Don’t
magistrates have training in this area?
Prof Masson: Yes,
of course magistrates have training. But
I’m not sure that it equips them for making such difficult decisions.
ALLAN URRY: How
much training do they get?
Prof Masson: Most
magistrates, who deal with this work, also deal with criminal work. So any training that they have during the
year has to be divided between their family training and their criminal
training and of course magistrates only have a limited amount of time they can
give. So they have relatively few hours
of training a year and that would have to cover all their family work and all
their criminal work.
ALLAN URRY: It’s
magistrates who decide whether to grant orders to local authorities arguing
pressing and serious circumstances. They
are known as emergency protection orders or EPOs. New research seen, by File on 4, shows that
in some parts of the country, half of all these applications are heard without
the parents’ or children’s representatives even being told they’re taking
place. They are known as ex-parte applications.
Judith Masson of the
Prof Masson: Published
statistics suggested that the number of emergency protection orders had
declined during the 1990’s. But when we
got the figures from the Court Service, it seemed that they were constant and
they were about 50% higher for the current year than published in the judicial
statistics. So a lot more of this was
going on then appeared from the published statistics.
ALLAN URRY: And why
is that important?
Prof Masson: These
are draconian orders and in many cases, they’re made without proper
representation of either the parents or the children. So the case goes before the Court and the
Court is only hearing the local authority’s side of the case and in those
circumstances the court has really no alternative but to make the order that
the local authority is asking for. Once
a child is separated at the beginning of proceeding, it’s going to be very
difficult to get the child back.
ALLAN URRY: A case
in which the European Court of Human Rights ruled against the
PAULA: Unfortunately
we’ve moved house twice so far already and my husband keeps saying when are they gonna go away and they
cover this bedroom wall from almost ceiling to floor.
ALLAN URRY: In a
bedroom she’d hope would be her daughter’s, there is instead a mountain of
legal papers. It’s the evidence used
against a mother, we’re calling Paula, in care and adoption hearings, she has them stored in fruit boxes from a local
supermarket.
PAULA: People
used to laugh at me ‘cos I was going in with this
trolley with all banana boxes, while all the big lawyers and QCs had their nice
black trolleys full of bundles instead of me.
So here was this mother going in with all these banana boxes.
ALLAN URRY: Paula’s
daughter was born in
PAULA: I
asked the court for an adjournment and they gave me the Friday and over the
weekend and made me come back on the Tuesday and start. I couldn’t find anybody. You tried to call somebody on a Friday … no
one would take the case.
ALLAN URRY: Did you
want a lawyer or did you want to fight the case yourself?
PAULA: No
I wanted a lawyer but my solicitor had informed the Judge that my legal aid
certificate had been revoked and that’s why they were allowed to withdraw. It took me until Monday to find out that my
legal aid was still intact. I never had
a chance to try and find a lawyer when I found my legal aid had been, was still
existed.
ALLAN URRY: But the
judge took the view that you were competent to run your own case, didn’t he?
PAULA: That
was really strange, the local authority were trying to say I am a personality
disorder and that I was deceitful. I was
emotional and this was gonna be the hardest most
emotional fight that I’d ever had and they were denying me legal representation
to bring the case forward. Even if I
knew the material, I still didn’t know English law. I wasn’t a barrister or a lawyer.
ALLAN URRY: This
was a case of exceptional complexity with vast amounts of documentation and
much expert evidence. Others who were in
court did have QCs, barristers and solicitors, they included
the guardian acting independently for her child and the Local authority, which
had applied for the care order. But for
Paula there was only herself and a friend who was allowed to take notes. Barbara Hewson, a
QC who’s reviewed what happened in this case says it put the mother at an
exceptional disadvantage during a time of high emotion:
BARBARA HEWSON: On one occasion she burst into to tears and
left court and refused to carry on. But
that evening someone from the local authority and a representative of the
guardian, who was acting for her daughter, came to visit her at home, because
the judge wanted her to carry on. She
did so. But I think the difficulty was
that she had no idea how to present her case in a way that would help her in
front of an English judge and she had no idea about how to go about
cross-examining the experts. She did her
best. But unfortunately the accusation
that was made against her was that she was suffering a syndrome called munchausen syndrome by proxy, which not only meant that she
was liable to harm her child by pretending that the child was sick when it
wasn’t, but also that she was in denial about her condition. And so therefore the more she tried to
challenge what was being said about her, the more this looked as though she was
simply reinforcing the diagnosis that had already been made, which was that she
was someone who was in complete denial anyway.
So in a way, it was particularly harsh to make her fight her case herself
because she did more harm than good, by defending the proceeding.
ALLAN URRY: There’s
no requirement in English law for legal representation in civil hearing. But Barbara Hewson
took the case to the European court of human rights. It ruled against the
READ: “The
principles of effective access to court and fairness require the assistance of
a lawyer. The procedures adopted not
only gave the appearance of unfairness but prevented the applicants from
putting forward their case in a proper and effective major on the issues which
were important to them.
ALLAN URRY: Such were the complexities involved the Court itself began to overlook important matters. There were in fact two sorts of proceedings running along side each other, overseen by the same judge. As well as the care hearing, the local authority had applied for another order, known as a freeing application for adoption. This adoption process requires parents to forfeit their parental rights. Up to this point, Paula and her husband had been able to have supervised contact with their child. But now, unknown t