The senior judiciary, legal aid & secrecy in the family courts

Family Law|November 21st 2016

Over the weekend I read an interview that Lord Judge, a former Lord Chief Justice, gave to The Times, in which he made some extraordinary remarks about the Lord Chancellor, Liz Truss and her failure after swearing an oath to do so, to protect senior judges from unwarranted and appalling attacks in the media. He hasn’t been alone.

I must say that when Ms Truss didn’t immediately respond to those attacks following the Brexit judgement, I too weighed in with my four pen’orth on Twitter. But when she ultimately put out a statement, that was, as you may recall, as weak as dish water, at that point I backed off.

“Enough” I thought then. Because really truly, there are other issues far more deserving of the attention of the Judiciary. So when Lady Hale too came in for some stick at an international law conference for daring to outline both sides arguments of the Brexit appeal she is due to hear shortly, and Lord Neuberger was urged to stand down because of his wife’s politics I more or less ignored it. I ignored the hypocrisy, too, coming from Lord Faulkner, who was, along with Tony Blair, the chief architect of the downgrade in status of the Lord Chancellor, as he gave interviews claiming that Liz Truss was not fit for purpose.

But reading  Lord Judge’s interview this Saturday really took the biscuit for me. Let me explain.

This same weekend, a visitor to the blog left a message which read:

“My baby has been stolen forcefully from c section 12 hours old straight to foster care discharged under police pressure and corruptly stolen for forced adoption In 2015 I want my baby back.”

As it happened in 2015, the chances are the baby is now adopted and living with a new family, blissfully unaware of the ongoing pain of its birth mother. The case is closed. But how deeply was that case considered by the courts?

What struck me in particular about that message was the noticeable difficulty the mother has had in communicating to us what exactly happened. I think we can probably hazard a guess from what she wrote that she is not highly educated and finds it difficult to express herself in writing. Perhaps it’s the same for her when speaking too.

I remembered her comment, as I read a case today which came before Lord Justice Macfarlane in the Court of Appeal. Re A and Re B Children was an application for permission to appeal a High Court decision made by Mrs Justice Theis, an extremely experienced childcare Judge.

Her Ladyship had to deal with related families who faced their children going into care. Mr & Mrs A, along with Miss B (Mrs A’s daughter) all suffered from learning difficulties and were legally aided. The case against them all was grave. The two children of Mr & Mrs A were 15 and 13 while the three children of Miss B ranged from a few months to three years old. Sexual abuse in the family was at the heart of the case, including of Miss B when she was a child. Other parties in the family were also involved, and in a case consisting of some 64 bundles of papers, care orders were made by Her Ladyship and in the case of the three children of Miss B, an order was made for them to be placed for adoption.

Remarkably, so sensitive was the evidence that was heard that Her Ladyship ordered her findings, contained in a 90 page, 400 paragraph judgment, to remain in the possession of the solicitors for each of the parties. The contents could be orally communicated to them, but no copies were to be provided to the people involved.

Immediately afterwards, all three parties appealed the findings against them and the outcome for the children. Legal Aid however, simply stopped there. No one in the Bar pro bono unit was prepared to take on a case free of charge that involved dealing with 64 bundles of papers. So the people involved who had no access to the judgment itself and had to remember what it said were left to prepare grounds of appeal on their own.

How easy would you find it – even without a learning difficulty – to appeal a judgement you couldn’t access but do so on legal grounds the Court of Appeal could then consider?

Mr & Mrs A produced 200 pages of documents and 50 grounds of Appeal. They subsequently added a further 119 points. Lord Justice Macfarlane patiently went through it all and held that the findings of sexual abuse were so serious and their failure to protect so pervasive on the findings there was no evidence to demonstrate Her Ladyship was plainly wrong.

Miss B who had been herself abused, produced a document with over 30 points. The Local Authority did not deny that it had failed her, particularly when she was a child. However there were findings made by Her Ladyship that demonstrated Miss B would not be able to protect her children. Their welfare for the rest of their lives made adoption the desired outcome notwithstanding Miss B’s best intentions. Nothing in what Miss B put before the court gave rise to the argument that her Ladyship had been plainly wrong.

Permission to appeal the outcome was thus refused to all three involved. All five children have been removed from their homes and taken into care – the three youngest to begin completely new lives.

You may think the families have had a fair shot, they were legally aided, the Judge made a decision and that’s the end of it. From what I’ve read too there is nothing to suggest Her Ladyship was in any way plainly wrong and the children are best off as far away from the family as possible.

But let me ask you this question. What if it was you, not them, and without means when legal aid would previously have been available?  You would have been facing the full weight of a local authority, who could and did pay for legal advice throughout. Even with your intellect not hindered by learning disability, you would have risked losing your children forever, on the basis of what you regarded strongly as a flawed judgement on flawed facts. Would you be happy – especially as you couldn’t even see a copy of the Judgement?  I’m afraid I’m not one of those people who thinks lawyers and Judges always get it right. With the best will in the world, sometimes they don’t. Hence we have an appeals system where our finest Judges sit, with our finest lawyers appearing before them. In this case Lord Justice Macfarlane was doing it all himself. And the people whose lives have been irreparably changed were not legally represented.

The senior Judges in this country are rightly up in arms about their treatment by the Lord Chancellor. Yet there is so much wrong in our family justice system that respectfully doesn’t merit mention in the same breath. Yes there are serious constitutional issues that have been highlighted, but the Divisional Court will continue to sit, the Supreme Court will hear and hand down its Brexit decision. It is what is happening daily in the family courts (those that remain open) that in reality, is also truly, utterly appalling. Lack of legal aid, lack of access to the law, delays in accessing the courts, delays in hearing a case, inability to understand and take part in a case even when it’s literally in court and a child can be removed forever…I could go on and on. And on.

And throughout it all, the Judges have publicly stayed mute. Why? We were told they mustn’t get involved in politics as literal lifelines were being removed for the poorest and neediest in our society. They have seen too family lawyers at the coal face – the Bar and the High street solicitor –  decimated by the end of legal aid funding and pittance payments for what remains. They praised as a sign of the future the decision to move online and close all those courts. They urged lawyers with mortgages and overdrafts to do more work “pro bono” as though that useless sticking plaster could somehow also magically cover those kindly lawyer’s monthly outgoings, house and feed their families. There’s no money. And no appetite for change in government. So we just have to suck it up.

I understand where they are coming from, of course the pressure from Government will have been immense, but I still respectfully disagree. The Judges are even more clearly now, our very last lines of defence.

Some of the younger Judges last week were revealed to be suing the Lord Chancellor as their pensions aren’t coming up to scratch. They were threatening to leave the Bench en masse. So very alarmed was Ms Truss that she even gave a speech suggesting high flying solicitors might consider applying to the High Court Bench. It must be a seriously panic stricken suggestion given her predecessor Michael Gove last week was also criticising the work of solicitor advocates in criminal law for taking work away from the criminal Bar. The Judiciary clearly do have considerable collective muscle. Without them the courts would grind to a stop. So perhaps with a weak Lord Chancellor in office it might still be possible to help those who can do no more for themselves than send a desperate one line sentence to this blog.

Sad isn’t it?

Read Re A and Re B Children here.

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  1. A says:

    Thank you for caring to write this post. I read the judgment by McFarlane LJ. It is truly heartbreaking stuff. It gives hope to see that someone like you is at least bothered to write a blog about it.

  2. CJ says:

    My family too has been dealt a raw deal.

    I brought a civil claim against my ex-wife for temporary custody of my three children in the county court, a year or two before the Family Court and procedure rules existed. The local authority has yet to answer for it’s crimes whereby at the time they employed the highest paid Civil QC to represent them and to “deal with me”.

    There were two potential pools of perpetrators, the “acute” group that all factual evidence revolved around that in my opinion would have been good enough for a jury to make a decision on, and then there was the “chronic” group that was based on no evidence but simply people who had contact with my children. I was never in the “acute” group, but I asked too many questions, protested too much and ultimately made the allegation that there was a paedophile ring in operation hiding their crimes.

    A QC sought to remove the “acute” group from the judges decision making abilities in order to go after me, she was known as the smiling assassin, need I write any more?

    I took various actions over the years to find remedy, ultimately the Judge retired, my children are adults and I now seek apologies from the local authority as I am now chairman of the local residents association.

    If they do not apologise for their actions and settle out of court, in the coming weeks I will be making a claim for judicial review of the key decisions.

  3. Jo Archer says:

    Marilyn, specifically WHAT can be done?

    You know me from previous comments. I am not uneducated and inarticulate and yet my son`s father is, for the second time, using the courts to threaten to take my son away. He has been ordered to pay for my son to be privately educated from the age of 5 through the original schedule 1 application during which he had to pay for my legal representation on the ‘equality of arms’ principle, not once but twice after the final hearing was postponed due to my brief slipping a disc.

    It didn’t occur to my brief that he could do such a thing but I understand from my mother, who is a retired criminal barrister, that it is quite common in the criminal courts. Perhaps an INTERIM solution to the funding crisis in some cases, would be to publicise this possibility. But of course it came to a juddering halt at the appeal.

    Since then I ran up a personal debt to my then solicitor of £10,000 and for the next five years was a litigant-in-person. I had some success enforcing the original court order and even succeeded in getting it extended to cover secondary school. It wasn’t until the county court judge casually asked my son’s father why he thought he should have any say in what school my son went to, when he hadn’t in 12yrs applied for parental responsibility, that things began to get really scary. He immediately applied for PR and the family courts waded in.

    I had applied for boarding and tuition fees on the basis that the boarding portion could be deducted from the ‘non-resident parent’s’ child maintenance liability, once the CSA had got around to calculating it properly. The First Tier Tribunal (Social Entitlement Chamber) had already overturned six decisions and found the NRP guilty of diverting his income – resulting in £20,000 arrears. I was in the process of challenging six more which have since resuted in a further arrears of £35,000 (which the CMS is llowing him to pay off at a rate of £50 a month – I’ll leave you work out how long that will take but most of us will be dead by then!) The court couldn’t see that boarding school would cushion my child from the wild fluctuations in our income which he had had to endure for years, an the direct consequences for him. I desperately wanted him to have some distance to be able to concentrate on his studies. Needless to say, the tuition was paid by his father (reluctantly and with a huge amount of fuss) but Ifell into arrears while I tried to get the CSA to implement he tribunal’s decision and it slowly dawned on me we would always be living three years ahead of our income!

    I immediately found the best possible temporary solution. A friend taught at an International School in Spain which tauht the National Curriculum in English, had plenty of space in the relevant year group and was willing to waive the fees for a month! I discussed my plans with te Cafcass officer at length an she had no concerns. I gave his father a week’s notice of my plans and purchased a return ticket. It never occured to me that he cold make an ex parte application to the court (by email!) moments before we left when he STILL did not have PR. I was ordered to return my son to this jurisdiction without the opportunity to give any explanation and things spiralled out of control until three burly policemen broke into my house at 4am to arrest me for contempt of court (for ignoring a so-called ‘consent’ order than I was neveraware I had agreed to) and carried my son off to his waiting father with whom he had never before even stayed overnight.

    It took 8 heart-wrenching months to get my son home, safely. If ayone wants to know what we had t go throuh you’ll have t ait for the book, when I finally get around to write about it instead of living through it. Surely the legal system has a similar oath to doctors to ‘do no harm’?

    What have I done? Complained bitterly at every step of the way. It turns out that a Guardian ad litem is only required to have two years’ experence of social work and receives no special training before wielding such terrifing power over families and our children.

    One judge deleted some of my oral evidence before it went for transcript! There are standard processes for enuring the integrity of data, the simplest being to take two simultaneous copies and put one in a black box as a future reference in disputes. When I asked the court manager which one the courts service uses she didn’t even understand the question! ‘We trust the judges’ she bleeted, when it is clear some of them can’t be trusted. Is it too cynical to suggest that the courts are scarping the bottom of the barrel?

    There doesn’t appear to be any way to complain about a judge unless he/she calls you a nigger-bitch in front of witnesses!

    I’ve had one judge forced to recuse himself for sayng he knew what he had a mind to do, before hearing a scrap of evidence, only to pop up in the same case ready to exact revenge for the perceived sleight, years laer.

    I’ve made an independent submission to the Parliamentary Select Committee for Work and Pensions inquiry into the CMS.

    I need to know PRECISELY what groups, committees, panals, trades and professional bodies to relate my experiences and observations to who can actually change things.

    Who, Marilyn and everyone else out there? I need names.


  4. CB says:

    My grandsons case was last heard in Court, appeal against suing xxx for damages, OPEN COURT proceedings, Judge found NO CAUSE OF ACTION.
    In this court (self rep) we stated that a family court case tried in the magistrates court, mother only, childs name RB UNexplained injury to child, ended in innocence, was then brought into this, the Family court by RCSS department with the change of childs name to RBM a name of a child that has never existed, his birth certified name RJB .
    This change of childs name made us the family completely impotent to prove to the court, the truth, he had been sent to Xxx General on family doctors orders to investigate (since birth many developement problems he was suffering, from Skull XRay, CT & MRI scan a condition Cerebral Atrophy had been confirmed) and not one order within the proceedings could be executed, the Hospital authority were not involved, none of this information was allowed to be mentioned in court, QC advice throughout FCP he would do the negligence case after this court, not that he ever did, disappeared, our child/grandchild was taken by RCSS into care with a court order that did not even have his birth certified name on it

  5. CB says:

    May I add, I (Grandmother) have FULL CASE FILE to prove the above, it was given to me by QC with his name on lever arch file

  6. CB says:

    Thank you for allowing my comment/ our story to be printed could I further add
    The FPC was a split case mother only accused my son, applied to be joined thus allowing him to accompany mother inside of court, we grandparents had to sit outside as witnesses and having no idea what the accusations were, but instructed not to mention Cerebral Atrophy (brain not growing) just answer questions put to us, not having any idea the catalogue of injuries put to the court by Social Services or the false information that my grandson had been entered into hospital having fell to the tiled kitchen floor, from shoulder height, we could not disprove it, the hospital refused to release his admittance form or the mix up on his transfer from one hospital to another for MRI Scan
    with a different childs accident details all verified in QC’s court file, but never discusse in court, we his family frightened into silence with the threat, he would be taken into Care and we would never see him again by QC
    The FCP ended in the court of appeal, we were wrongly told by Head of RCLA to appeal that the childs name on the case was wrong, the appeal was refused, the false name for my grandson stands to date and the judges did us a favour??????????? they joined the split case together, no further appeal and the name of child can never be changed

  7. father of J(a child) says:

    i thought it was odd how the judge waited until the room was silent before before continuing with his bullshit hearings after ss kept contradicting themselves and obviously committing perjury. probably does it so it’s easier to edit the court recordings while deleting from the transcripts. he did this countless times throughout the kangaroo court sessions, and at the end of the final hearing when he picked up his pre-written judgment and read it out, instead of adjourning court to consider all the evidence before creating a judgment.
    The names in this post have been removed. – Editor.

  8. C says:

    Not all parent who go through the family court process are uneducated and unable to articulate their thoughts and views.
    In 2010 my Son was adopted without consent for ‘risk of future emotional harm’, I spent 7 months in a placement with him, which was initially supposed to be 12 weeks. The date for me leaving just kept being extended. I saw 2 psychologists who were Doctors, who both had employment outside of the LA, and both gave me good reports. I then saw an independent SW who was the manager of the team I was assessed by between 1997 and 1999 (A team who is on the list of councils who admit to having adoption targets). She stated I should go home with my Son immediately and could see no reason for it to be a staged return. My own Mother died whilst I was in placement, and I was then sent to see a third, lesser qualified psychologist, who has no other employment than that provided by the LA . Then came ‘Death by psychometric’ and she used me grieving for my own Mother as a reason I couldn’t parent my Son. The now HCPC impaired SW refused a change of placement when I asked for one, even though the foster carer stated she didn’t want me in her house, and she gave me no reason why I couldn’t change placement, regardless of the fact the FC was making it difficult for me only a matter of weeks after my Mum’s death.
    Social services have a way of wording things to make mountains out of everybody else’ molehills, and having a dutch auction of experts, until one gives them something they can run with. Where there are targets, there are incentives to do the aforementioned. Even if that is against the advice of a woman who used to manage child protection unit in your area.
    Anyway, I have requested face to face contact with my Son, many times, and I have been refused. I have kept all of my original paperwork to show my Son, and the covert recordings of meetings etc, just so he knows that I genuinely did him no harm. He doesn’t even need to hear ‘my side’, he has his paperwork and recordings to inform his opinion. I have also kept my contact refusals.
    I would love to know how the adoptive parents are going to answer my Son when he asks why he was adopted, or how they will answer why they have refused contact. Or even how anybody makes him understand why his Grandmother dying meant he ‘couldn’t’ be parented by his own Mother who took great care of him.
    To add insult to injury, my own Auntie was a social worker for the company I was in placement with. and when she put in a complaint about the way I was being treated, she was told to ‘keep her nose out’ – Her words, not mine.
    The reality of the situation with adoption without consent for ‘risk of future emotional harm’ is that there will come a point when children learn why they were adopted, and some will as Dr. Peter Dale says ‘vote with their feet’, surely it makes sense to promote face to face contact maybe 4 times a year, and find ways to have natural and adoptive parents form a civil working relationship with each other? It would prevent some children from forming a disney like ideal of what their natural families are like in their heads, and seeing the natural parents on speaking terms with the adopters can only be a good thing surely?
    Now what with me being in natural parent support groups, I see plenty of people who are going to ‘give the truth’ to their children, and I don’t mean that they are saying that in a supportive way, but these are people, who like myself, will have been denied contact many times, and the anger over that is stewing. Therefore is it fair of adopters, in a case like mine (no abuse, no neglect) to expect that they can refuse contact time and time again, but that natural parents are to be expected to work with them in the future should the child ‘vote with its feet’?
    You ask how somebody would feel, left to face the court process without legal representation, but given that so many legal aid solicitors bounce between two sentences, which are ‘if you agree the judge will appreciate that’, and ‘we will wait until the final hearing’, I’d say, it’s much better to lose your case with no legal representative, than to lose with somebody who has the passion of a lettuce leaf. Should I have another child (unlikely) after I finish my masters degree, I would rather pay a McKenzie friend than a solicitor.

    • CB says:

      Sorry to inform C but once you have been through the system and your child removed, the system will follow you throughout your life, any further child and your chances of keeping it is in jeopardy of being removed, the state has convicted you as an unfit parent, that is the status as it stands for my son and his partner, now at the age of 40yrs neither have parented another child

      • CJ says:

        It is not strictly true what you state, ie the system following you for the rest of your life.

        If they get it wrong, and you clear your name, as I have done, then all is well. I used a Statutory Declaration as the instrument of choice to achieve this goal.

        I am now 40 and living with my new wife and our young family, the local authority are aware, to a point where I demand an apology and out of court settlement, else if they do not come to me in the next few days, I will be taking the previous matter for Judicial Review as the Judge retired in disgrace, I understand as a result of my persistent civil disobedience regarding what was a perversion of the course of justice, in my opinion.

        Watch this space and I will report back on the outcome of my Judicial Review in a few weeks.

  9. CB says:

    Throughout our court ordeal, social services on our case and having the medical evidence of my grandsons birth, breech, deprived of oxygen by cord, diagnosis Cerebral Atrophy, all information covered up within court case. Along with brother and sister in law (carers) I approached a Charity who advocated massage, provided us with a video tape on technique, between the 3 of us we devoted 24/7
    with the help of cream prescribed for his dry scaly skin, the result was miraculous, instead of a baby constantly in fetal position, getting stiffer by the day, with head jerking spasms, we watched him pushing himself to normal birth targets, even had him in a baby walker at 4mths old staballised by scatter cushions, the jerking back never abated just got less sparodic all evidence photographs and video tape, even offered legal help through association, but too afraid of social services to accept? the people who are supposed to protect children????????????

  10. Sam says:

    find it disgraceful how people are fighting local authorities, for there children/grandchildren. Judgements when not partied cannot be handed down by a judge wwhen LA/cafcass puts in reports parents are unknown or there not coming to court. This isnt giving familys a fair oppatunity in court. agree if theres actual evidence that any child/babie /teen has suffered in anyway especially csa, cse,any form of abuse or a long history/given chance after chance, the child shouldnt be around that and removed.
    Many might agree or think i word it wrong but im failing to understand myself ,how a LA can just go into a family home/labour ward and take a child on the propability doing assesment before {A Child) (call child JC) even meet8ng the parents to secure a adoption order/foster placement.The child is paramount at all times but comes ti injuries or abuse in the system but your not allowed to say this. Or how youbhave serious concerns relating to for eg reports of sw1/sw2 as they have never met or crossed paths. When you need to prove the LA acted unlawfully in the law and the FPR.(learning a little along the way)
    This has to be illigal, when positive contact reports are going missing ?
    The evidence that you tried really hard but didnt know the law as not used to being in family courts. Denying the rights of a mekensie friend/ litigation friend /advocate. Where there was no juristiction when a judge is used to givong 6/12 month sentences in criminal but signed a childs life away on the word of sw1/sw2 (who were found to be taken of the case an under fitness to practice removed) then a trainee of only 9 months in passing part 1 of sw care give evidence? Surley under the law FPR 2010 it states statements of truth but letting her rely on evidence to secure adoption of previous reports on ppl the parents /family didnt even meet. Appeal denied and father to get judgement had to pay costs? The solictor cannot be found with the 7k he had and the legal aid he claimbed but thats ok,or is it? (Freelance) the family are now stuck with incomplete paperwork as missing from the begining in turmoil. Im not saying all solicitors/barristers are bad as i be a hypocrite as its not true, sad how we trusted this solicitor he grew a concious before we last seen him we think.(only time will tell)
    As for the cases which you state john with regards to the children in the cases ive read those judgements and i think the children were better off having a new family, its still freedom of speech- i hope these children were given a new family, time to heel of everything they had been through. with all the lies by certain professional sws (not all) an children you cant see judgements as to many case numbers attached to 1 child, is beyond. Innocent parents/grandparent given a life sentence but more importantly the child is of one stamp. The Moj has raised concerns 11,444,000 child cases in England an wales with reguards ti care proceddings in 3 months alone. Compared to SGO,contact etc, this should ring bells. The system was set up for a reason to help keep families together unless absoultly nessasary to intervene and this is being abused, copy and pasting using templates where even the wrong familie names/children are in the case who ppl dont even know. Let be honest if i read fikes like that (which i have) id be horrified, these are innocent children also who are supposed to be protected by the law/by statue and couldnt oobviously live with parents but crept there way in. It should have been corrected when the family tried pointing pointing it out. A judge cant just step into a case, meeting the parents 1 time (or not at all ) and stamp a child away on hearsay on a probability that would and impossible it ever happen. Who protects the child from that and the parent whose trying to prove the case was impossible at the begining???
    As for people with learning difficulties it should also be stated by proffessional at the earliest oppatunity the law which allows them to have the adequate facilites avalible weather paying or by legal aid . Its okay to have leaflets in the family court but it should also be pointed out by the judges the law has to be kept. People are looking to represent themselves as the statement of truth isnt a statement of truth for example were not present/holidays an told to drop in an sign paper thats blank…Theres so many things that are wrong,,very few right, if it can get to an appeal its often to late the damage is beyond repair.
    Respect as always in your blogging.

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