Wednesday, April 27, 2011

Hemming's Law

Increasingly, it is looking as though John Hemming may be the last person you want helping you with your legal problems.

When he spoke out in parliament, only to be slapped down by the Speaker over a point of order, my first thought that he was doing the right thing in response to what appeared to be a manifest injustice and oppressive use of the law by a local authority against a pregnant woman. I have agreed with him publicly on a a number of these issues and my instincts placed me in support again, but I should really know better by now and should dig a little before I leap to judgement. To save me the trouble of doing the research, the ever-reliable Unity at the Ministry of Truth has been scything through the undergrowth to get to some facts about the case. A degree of caution is advised on this subject as, while reporting parliamentary proceedings is protected, comment around them is not. As in a previous posting of mine about John's adventures within the family law system, there will be few jokes and I'll avoid cheap politics - this is too serious for that.

This wasn't about breaching a superinjunction obtained by a wealthy man - for they are usually men - to silence an inconvenient woman's approaches to the press, but a very difficult case from the family courts. This is no great surprise, as cases that reach this level within the judicial system are typically the most difficult and this one is no exception.
From this alone, it should be clear that this is a problematic case, not one best suited to brief exposure by a publicity-hungry MP or to indelicate scrutiny by the media.

Carl Gardner - Head of Legal - adds fuel, by pointing out that Hemming's actions raise questions about his use of parliamentary privilege in discussing a case that is arguably still sub judice, matters that are by agreement not raised in the house for fear of prejudicing active cases. It seems that this case is very much still active - long drawn out, to be sure, but certainly active, from what few facts are known. Further, the local authority seem to believe that it is and are not being drawn to comment. Sometimes, things are kept secret to conceal wrongdoing, but sometimes, secrets are there to protect others. Surely, professionals may be incompetent or, sometimes, corrupt, but much of the time, they are just trying to do their best by their clients or their patients.

Carl also refers to an earlier case, where Hemming seized upon another difficult case in his defence of the right of constituents to talk to their MPs without hindrance, in particular with regard to a case where a person had given an undertaking (not under an injunction, but a voluntary matter) not to talk to the media or to his MP. The Head of Legal suggests that the earlier case, detailed here, may have fatally damaged John's status within the court system to the point where his involvement with a case may be a seriously negative influence.

all sides in the case felt Andrew France’s disclosures to John Hemming MP were not in the interests of his child. 
Carl reminds us, rightly, that
There may be injustices and unfairness in some or even all of the cases John Hemming raises; we don’t know. Injustices do happen in court cases. But John Hemming’s saying so doesn’t mean we should automatically think so too.....

Hemming seems to discount the possibility that the professionals involved may actually be genuinely trying to do what we pay them to do – protect young people like this. What he did in the debate was to “scatter allegations of professional impropriety and malpractice” to use Wall LJ’s words – in this case, suggesting there may be a council cover-up of sexual assault allegations. Given what seems to have been his conduct in RP, might it be reasonable for some other party to this other case to want John Hemming to butt out, and to want the family to stop talking to him? Might it be reasonable in Andrew France’s case, too?

Reading back over last week’s debate, it’s clear that John Hemming repeatedly complains about social workers – a classic easy target – and other professionals who have important responsibilities to children and their often vulnerable clients. None of these people will find it easy to answer these sometimes very serious allegations, bound as they are by obligations of confidentiality. John Hemming, on the other hand is free to make whatever allegations he wants, safely sheltered by Parliamentary privilege.
It’s important to add that, in addition to these family law and Court of Protection cases (some of which may well involve injustice; I’m not saying that can be excluded) he mentioned in the debate a civil case about toxins in which apparently what he calls a “hyper-injunction” has been ordered, barring someone from disclosing anything about the proceedings to an MP. There may well be something very wrong here. I don’t know. It sounds extraordinary, and on the face of it raises serious questions that need to be answered. But all we know at the moment is what John Hemming has told us.
And that is starting to look like unreliable evidence.

These cases involve people in appallingly emotionally painful situations, typically at the very lowest and most difficult points in their lives, it involves the future of children and people who deserve the protection of society, not to be held up to close public scrutiny for the entertainment of the masses. Yes, there are serious issues being raised in these cases and there may - or there may not - be wrongdoing, injustice or malpractice involved, but it looks increasingly as though John isn't the best route by which these people can get justice and may actually prove to be an obstacle, so damaged is his credibility. I will stress again - this is not a political attack on John occasioned by my Labour Party membership. I think that he is wrong headed in what he is doing and may not be helping. I still don't believe that he has grasped the meaning of s1(1) of the Children's Act 1989, which says
the child’s welfare shall be the court’s paramount consideration
It isn't about the parents, the courts, the local authority or the psychiatrists. Still less is it about an MP or a handful of bloggers. These are issues of child protection and deserve the most serious of consideration, not cheap politics and showboating by anyone. Lives and emotional sanity are at stake here and that's too big a gamble - these cases all have at their heart a human tragedy and we should look to help, not take advantage.
What can reliably ascertained is that this is a particularly complicated, unpleasant and acrimonious case which arose, initially, out of the breakdown of a relationship which gave rise, to begin with, to a dispute over a father’s access rights to a single child. What elevates the case far outside the norm is that the mother who, to begin with had custody of the child, sought to deny the father access to the child by way of levelling a series of damaging allegations against the father, the most serious of which accused the father of sexually molesting the child. Following a series of investigations and hearings in the family court over a period of five to six years or so, the current state of play in this case appears to be that the child is now in the custody of the father but still subject to a care order or care plan put together by the local Social Services department (this is not entirely clear due to certain issues with the source material I’m working from here that will become clear in a moment), while the mother has no access to the child at all, having been served with a non-molestation order by, seemingly, the Local Authority. Precisely why this should be the case is, perhaps, best illustrated by the finding of fact handed down following a hearing early in 2010:

1. [The child] has not been sexually abused by the father, or at all.
2. The allegations of sexual abuse were made first by the mother, not by [the child], they were false and the mother knew them to be false.
3. As a result of inappropriate pressure and prompting, [the child] came to make and believe the allegations.
4. Once [the child] adopted the allegations, the mother may have deluded herself that they were true.
5. [The child] suffered actual and significant emotional harm


charlie said...

JH contributes to the Restirred board (and used to contribute to the Stirrer), as you know.

My impression - especially in areas where I have some expertise - is that he rarely admits to being persuaded by alternative arguments.

Phil said...

Great post.

Thoughtful, impartial and articulates a lot of the uncertainty around these kinds of issues that people working in these areas face.

Like you, I tended towards being supportive of Hemming at first.

But, reading between the lines, it looks like one of those cases we come across where allegations are being thrown around, and the LA are rightly sticking to their guns and putting the child first, at the expense of their own reputation.

If the allegations are unfounded, it's an approach that has to be commended.