Friday, May 09, 2008

Judged wanting

John's been to court again.

And again he's been slammed by the judge.

This case is too serious to joke about - I've just deleted three paragraphs of political digs at the Liberal Democrats after reading the full judgement. This isn't the place for levity. Frankly, this is an absolute disgrace. In brief summary of the case, a daughter with disabilities was born to a 22 year old mother as a result of a brief liaison with a 66 year old man. The mother, according to the clinical psychologist, is in the bottom 2% of the population for verbal skills and the bottom 1% on capacity to perform tasks. The child is disabled and is oxygen dependent and while the mother clearly wants to care for her, she seems signally unable to provide the level of care required and may not be able to learn the routine necessary to keep the child alive and healthy.

Most of the names in the judgement are anonymised, with a couple of exceptions.

Lord Justice Wall was damning in his criticism of John Hemming,

'My judgment is that his self-imposed role as a critic of the family justice system is gravely damaged.... Speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.'

John attacked the mother's own solicitor - effectively accusing her (identified only as 'SC' in the judgement) of fabricating evidence. The judge was so shocked by this that he didn't just ask for a transcript of the hearing, he had the court staff knock up an audio CD as well so he could be sure of what Hemming had said

In a nutshell, Mr. Hemming's response was that the evidence contained in SC's file had been made up: in a word, fabricated.... Mr Hemming seized immediately on the discrepancy in the dates which I have identified in paragraph 64 above, and sought to argue from it that "there is some doubt as to some of the provenance of some of the documents in these files." I intervened to say: "I believe in calling a spade a spade. Do you think this is a put up job?" Mr Hemming replied: "I think this is a put up job and I have some experience in looking for evidence".
The judge reviewed the case files and the notes, found nothing to support John's claim and wrote that he found it

not only unacceptable but shocking, that a man in Mr Hemming's position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.
This all kicked off when the Official Solicitor was appointed to act in the mother's place, as she was deemed incapable of giving instructions to her own representative. Some of the notes referred to in the judgement support that decision. John's view is that the Official Solicitor is there to rubber stamp the local authority's decision - a long way from the truth. A clinical psychologist (HJ) was appointed to clarify whether the mother was capable of instructing her solicitor and understanding the ramifications of the legal process. To be clear, the psychologist specialises in this field - her doctorate was into research of the parental competence of mothers with a learning disability and she has 18 years of experience in the clinical field. There are probably few people in the country better qualified to pass an opinion and John Hemming certainly isn't one of them.

That didn't stop him from having a go. He accused her of being in the pay of the council (experts aren't supposed to be partial - they give an honest opinion based upon their view of the facts and have an overriding duty to the court, at least they did when I had to act as an expert a few years ago). The judge commented:

It is plain to me from these documents, that in addition to the allegations set out above, Mr. Hemming believes that HJ was in the pay of the local authority and thus was "the local authority's expert". For good measure, he asserts that the system is "evil" and that "there does seem to be little concern in the legal profession about the reliability of opinion offered in court.". The clear implication behind the "witch findings" items on the website set out at paragraph 95 above is that "experts" like HJ are in it for the money; that they are happy to "manufacture 'evidence'"; and that they are in receipt of "phoney" letters of instruction. The result, Mr Hemming asserts is a "disaster"
This set of assertions - laid out on John's website - are thoroughly demolished by the judge. There is no evidence to support his attack on the witness' competence, the claim that she was falsely instructed - the clinical psychologist was actually instructed on behalf of all parties - and there's no evidence beyond John's own conspiracy theories that she's in it for the money. Repeating those claims outside court or without the protection of parliamentary privilege would very probably see Hemming facing a libel suit.

Lord Justice Wall gave his view

Even more unarguable – indeed it is outrageous - is Mr Hemming's allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence.

Mr. Hemming's allegation that HJ is part of an "evil" system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious accusations when they are based on evidence. I am astonished that somebody in Mr. Hemming's position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly.

The nub of the problem with John's support of the mother was his failure to understand the basic principle of the law as it affects children

...the danger of the mother’s approach, reinforced as it has been in my judgment by Mr Hemming’s partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP [the child]. His emphasis, and that of RP [the mother], was entirely on her rights and the alleged wrongs which had been done to her.
Here, John has signally failed to understand that the core of child protection work shifted with the 1989 Childrens' Act, where the very first item - s1(1) says that

the child’s welfare shall be the court’s paramount consideration.

The judge sums up neatly with a reasonable view of the system - imperfect, certainly, but far from evil.

In my judgment, the arguments advanced by Mr Hemming in this case are ill-informed and tendentious. They are contradicted by the evidence, and must be rejected. I think this most unfortunate. Nobody who works in the Family Justice System regards it as perfect: most of us see it as under-resourced and struggling to deal with the work loads thrust upon it. Constructive criticism, particularly from those in a position to bring about change, is to be welcomed. I am myself in no doubt that the system must change and adapt, and I have spoken many times in public in support of my belief that there needs to be greater transparency in order to combat the partial, tendentious and inaccurate criticisms made against the system. I therefore welcome the opportunity provided by this case to demonstrate that the system has operated properly, and that the criticisms made are unfounded.

John picked on the wrong judge. This is not a judge who is unaware of the faults - he could have found common ground over the changes required to the system - much as I agree that it could be improved - but he picked on the wrong case. The judge adds

I would like to make it as clear as I can that the function of this court is to maintain standards in family justice, and does not hesitate to criticise a local authority which has broken the rules. Indeed, I invite any reader of this judgment to read the forthcoming decision of this court in Re F [2008] EWCA Civ 439, which is being handed down on 1 May 2008, and in which Thorpe LJ, Wilson LJ and I are deeply critical of a local authority.
This case is a tragedy, certainly, but I don't believe that justice or the mother's case was served by John's ill-considered and wild interventions. As the judge himself adds in a postscript,

at the heart of this case, as with so many family cases, lies a human tragedy: the premature and unconsidered birth of a disabled child, and a mother who is plainly incapable of caring for her, however much she may want to.

I cannot recall ever reading such a harsh set of criticisms of a serving MP by a judge. John Hemming should be ashamed of his performance in this. I don't write this lightly or with any political malice - hard as that may be to believe - but his behaviour was wrong. I've written before that there are problems with the Family Courts system and that perhaps the time has come to review the absolute secrecy in which these courts operate, but John's wild allegations about impropriety on the part of social workers - a much-maligned group of people who do a dangerous job (statistically they have a higher risk of being murdered than do police officers) in a very difficult and emotionally-charged environment. Mistakes and injustices are bound to happen in any system and we need to find ways to minimise those and right the wrongs, but chucking wild conspiracy theories around serves nobody, least of all KP. She is at the centre of this, not the mother and still less John Hemming. He would do well to remember that.


john said...

The substantial issue is that a woman has had her baby put up for adoption without a trial.

There is a subsidiary issue in that the financial and managerial pressures on local authorities create an appearance of bias. Read my blog for more about this.

There is evidence of retrospective adjustment to the file.

Philip Squire said...

I am new to the travelling-fair that is John Hemmings, and far from happy to have become acquiainted with it. The judgment of the court was remarkable and, as you say, unprecedented, but more remarkable still is Mr Hemmings' absolute refusal to accept the criticisms or the careful legal analysis of his interventions.

Of his comment above;

1. the woman (RP) did not have her child "put up for adoption without a trial". There was a trial, she was represented by solicitor and counsel and subject to the protection of the Official Solicitor (OS) because of her substantial functioning difficulties. Mr Hemmings appears not to have read any of the psychological reports about how RP presented, but merely assumed that they are wrong. Unlike the OS, Mr Hemmings failed to have any regard to the welfare of the child but was, as the judge said, entirely adult-focussed. One of the reasons why the trial was dealt with at so high a level was specifically to investigate Mr Hemming's question - whether the involvement of the OS was compatible with the European Convention on Human Rights. It was deemed so, i.e. a positive confirmation of the fact of the trial and of its fairness.

2. Of course local authorities are inclined to be cautious: they are tasked with the protection of vulnerable children. There are far more cases in which they fail to act when they should than when they act when they should not, but the trial process is there to ensure that if they are wrong, they do not succeed. Just as a police officer arresting someone appears to have concluded that there was adequate cause to do so, so when local authorities intervene, they appear to have pre-judged the case to some extent. That is hardly a complaint. How else are they to carry out their statutory tasks?

3. This is dangerously close to a lie. There was not evidence of retrospective adjustment to the file. Firstly, the one - one - document in question was never said to be contemporaneous, but prepared from hand-written notes on the file. It had a date on it, indicating that a letter had been forwarded to RP before it had been received by the forwarder. That was plainly incorrect. The judge thought it could be a mis-transcription, but in any event, after a hugely long exploration of the solicitor's file found no evidence of any other instance, nor of any evidence other than that the solicitor had at all times been straightforward and honest. Secondly, the solicitor had no interest in adjusting the file in the manner Mr Hemmings has concluded she had, so why would she bother. Thirdly - and this point has passed Mr Hemmings entirely by - the issue of the wrong date was a tiny part of Mr Hemmings broader assertion that RP had not known that she had the protection of the OS. If that is what she said (as seems likely) one might have thought that Mr Hemmings would have wondered whether she didn't actually have exactly the psychological difficulties ascribed to her. Because the evidence that she had been told and told repeatedly about the OS's involvement and what it meant is overwhelming.

I intend to write to my MP, Kate Hoey, in the next couple of days to ask what can be done about a member of the House who behaves thus.

Anonymous said...

how much of this was reported by the red tops who love to have a go at social workers?