BRITAIN'S POLITICALLY CORRECT "FAMILY COURTS"

"Jenkins notes that many reforms introduced in the name of child protection in recent decades have involved sweeping attacks on traditional Anglo-American legal rights and protections. These rights include: the right to due process, the right to be presumed innocent until proved guilty, the right to be tried in public, the right to confront one's accusers, and the right to 'equality of arms' (that is, not to be tried under significantly less advantageous conditions that those enjoyed by one's opponent). Other protections, such as restrictions on the use of hearsay evidence, the right to consult the expert of one's choice, and even the right to communicate in confidence with one's lawyers (legal professional privilege) also suffered.

Such traditional legal protections were challenged by what Jenkins calls 'therapeutic values, the sense that neutral professionals were working in the best interests of the child and should not be hampered by outdated technicalities' (6).

Our child welfare courts have therefore become accustomed to a model of therapeutic jurisprudence, in which the best interests of the child are paramount (7). This has certain analogies with a Soviet-style conception of justice, which emphasises outcomes over processes, and which requires the judge to carry out social policy, rather than act as an independent arbiter.

At present, parents accused of posing a threat to their child must take on not one, but two arms of the state: the local authority, and the Orwellian-sounding CAFCASS, which acts for children. One or more social workers, or experts, may interview a parent, but no tape-recording is made. Sometimes the parent is not allowed to have anyone else present, even to take a note. Parents accused of posing a risk to their child may also be pressed to admit 'guilt' in order to get the child back. As many parents recognise, this is a catch-22.

If social workers decide that a child should be removed from its parents because there are concerns about its safety, they can get an Emergency Protection Order (EPO) from a magistrate, without the parents having the right to be heard in opposition. The evidence put before the magistrates is not formally recorded in an affidavit, and the order can then be presented as a 'fait accompli'. This can set in train a destructive downwards spiral of intervention, culminating in official demands that the child should be separated permanently from its parents by adoption. Even newborn babies can be taken away at birth and subsequently put up for adoption: an extraordinarily harsh measure, which has been criticised by the European Court of Human Rights in Strasbourg (8).

Family courts in this country operate in a climate of extreme secrecy. Both press and public are routinely excluded. Sometimes parents may be injuncted from telling anyone that child protection proceedings have been initiated against them. They are not supposed to show documents in the case to anyone else.

It is hardly surprising if abuses occur. In May 2003, a judge noted examples of a social worker lying both to a child's mother and even to a court, on the instructions of two superiors. The judge castigated the social worker for a 'grossly unprofessional and wholly improper stratagem' and the local authority for 'wholly unprofessional and quite shocking conduct' (9). It seems that nothing was done to punish the local authority, however, beyond the judge's 'censure' and an order that the local authority pay legal costs. This seems woefully inadequate".

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