Guilty until proved innocent: the grotesque reality of family courts

Will we be able to report if a mother kills herself through the grief of loss?

THERE IS SOMETHING I wanted to write about today. But I cannot. I cannot even tell you that I cannot tell you, because to do so might be to imply what it was I wanted to write about. And that might lead you to infer that I was referring to a situation that I should not refer to. Get it? No?

I am beginning to understand why so few journalists write about cases in the family courts. The lawyers are patiently diminishing my file of potential cases week by week. But at least I am learning about the armoury of secrecy that social services can deploy which prevents scrutiny of the removal of children from their parents. 

John Sweeney, an investigative reporter and presenter on the BBC’s Real Story, describes reporting on the family courts as being as difficult as reporting from Zimbabwe. Of the seven child abuse cases he has covered in the criminal courts over the past few years, all have ended in the quashing of convictions. Some of the defendants — Angela Cannings and Sally Clark — have become household names. But of the five cases he has covered in the family courts, all have ended in the parents losing their children for ever. You will probably never know the names of those people. Their names must be changed and their faces blocked out, to “protect” the children. It is hard to expose miscarriages of justice when the stories are drained of human content. 

What I have found extraordinary is how often highly able lawyers are uncertain about what we can and cannot write. Despite the issuing of a model order last year by Dame Elizabeth Butler-Sloss, then head of the Family Division, the court orders that limit press coverage are still often so badly drafted as to be completely unclear. Sometimes the order that is drawn up by the court bears no relation to the draft that the press was sent in advance of the hearing. Sometimes we are notified of the order too late to make representations against it. It costs money to fight these orders. Local papers in particular cannot afford to consult lawyers all the time. The result is self-censorship: one errs on the side of caution. We end up conspiring to silence families. 

The irony is that the injunctions are becoming more draconian just as a door is opening in Whitehall. Harriet Harman, the Minister for Constitutional Affairs, has announced that she will consult this year on opening up the family courts to greater scrutiny. This is a positive step. But make no mistake: the same old authorities are gearing up to argue that openness is inappropriate where children are involved. 

Even if that particular battle is won, there will still be miscarriages of justice. For the Government’s consultation will not deal with some fundamental unfairnesses at the heart of the system. The first is the threshold for conviction. In a criminal court, you are innocent until proved guilty, and you can only be convicted if your guilt is beyond reasonable doubt. 

A family court, because it cannot imprison you — only condemn you to serve a different kind of life sentence by taking away your child — “convicts” on a balance of probabilities. You cannot plead not guilty. In fact you are often penalised for not showing “remorse”. The assumption of guilt starts with the first referral to social services and continues into the courtroom, where few judges allow parents to call experts in their defence. New medical research is slowly demolishing the textbooks on child abuse: including various new and innocent explanations for certain types of fracture that are currently thought by social workers to be diagnostic of abuse. But this new thinking is rarely permitted into the family courtroom. 

Wrongs are compounded by the irreversible nature of the judgments. It is generally accepted that once a child has been adopted, the parents cannot see that child again even if they have managed to prove their innocence. They cannot even refer in public to that child by name. Yet this is utterly wicked. Yes, it will be desperately tricky to reunite innocent parents with children who have been adopted by other loving families. But it is a challenge that society must rise to. It is just not good enough to use the manifest difficulties as an excuse for not even trying. Lorraine Harris, who was cleared after serving a jail sentence for shaking her baby to death, when it was proved that he had a blood disorder, has little hope of ever seeing her other child again. We only know of her because her case went through the criminal court. How can this be? How can we pile wrong upon wrong? 

The more I study this area, the more unanswered questions appear. Will we be able to report if a mother kills herself through the grief of loss? Or will they say that this, too, would not be in the interests of the child? Will we be able to report if an adopted child continues to suffer from precisely the complaints that were originally taken to be evidence of abuse? If the family courts are opened up, will there be any redress for parents who protest their innocence, who were convicted in secret? A little more light, please, into the dark corners.