Lara Prendergast

The sinister power of family courts

9 September 2017

9:00 AM

9 September 2017

9:00 AM

It’s right that some children are taken into care. One case in point is that of Ayeeshia-Jayne Smith, the toddler who was stamped to death by her violent young mother in 2014. She was known to social services for all of her short life, from the point when her pregnant mother was found living in a garage, but she was never removed. This week, a serious case review found that social workers ‘missed the danger signs’.

Danger signs. A nebulous phrase with numerous interpretations. In tragic cases like this one, the danger signs are ignored, possibly because it is tempting for social workers to avoid dealing with the most aggressive and confrontational families. Because of the strict secrecy surrounding family courts, it is often only when these cases arrive in a criminal court that we get a glimpse of how badly some children are let down. But there’s another risk: the opposite side to Ayeeshia-Jayne’s story. Should social workers choose to see ‘danger signs’ in the wrong places, it’s all too easy for children to be taken away from perfectly functional homes.

Last year I wrote a Spectator piece about women with postnatal depression who were made to feel at risk of having their children removed. This common condition seemed to have become a new ‘danger sign’. Afterwards I received a number of emails from readers whose families had, for various reasons, been broken apart in the courts. They knew that discussing their stories was risky, but they chose to anyway.

One letter came from a university–educated professional couple. The wife had been ill to the point where she could barely get out of bed, but officials would not believe that the husband would be able to look after their child while she recovered. Social services were in the process of trying to remove and rehouse the child via a court order.


Another message came from a woman whose ex-husband was a banker. He had been abusive towards her, she said, yet her decision to leave her marriage had been used in court against her as a way of arguing that she was not fit to care for her child. She did not have enough money for an appeal and her ex could afford to spend more on better lawyers. When we met, she sobbed as she told me that her bitter advice to other women in similar situations was to ‘never leave your husband, no matter how abusive, because it puts you at risk of losing your children’.

One of the most upsetting letters came from a woman with autism. After the birth of her baby, social services had passed mother and child round various hospitals to ‘monitor her parenting skills’. Eventually they concluded that her child needed to be taken away. ‘What gives social services the right to scrutinise, judge or intimidate parents who have disabilities, impairments or illness?’ she asked. And ‘why are they allowed to remove children in such an underhand and secretive way, and the parents are powerless to stop it?’

I do not know the answers, but I know that even asking such questions will result in a flurry of correspondence from judges and legal experts who will tell me that the family courts must remain private — they blanch at the word ‘secret’ — to protect the child and the family. I understand that. But from the letters I received, I also sense how terrifying it must be to find oneself caught up in this, with the full force of the state telling you what’s best for your family.

We all know why family courts are shielded from media or public scrutiny. But that lack of transparency can often lead to abuse of power. Judges in family courts can withhold information not just for the good of the individuals concerned, but also to conceal their own verdict. As such, family courts can be sinister places where cruel decisions are made. An obviously unfair decision will not necessarily generate a public outcry, because often the public cannot know.

Louise Tickle, an experienced family court reporter, recently described how hard it can be to write about what goes on at a hearing, even when it becomes clear that mistakes have been made or the outcome is unjust. If journalists are allowed in to court, the judge can usually decide what they can or cannot report. ‘Because of reporting restrictions on saying what really happens in family courts — pretty much the only place where poor social work practice visibly plays out — it has been impossible to explain the many failures in all their shocking detail,’ she said.

A few of the parents who wrote to me said that they felt their cases weren’t held to the same standards as a criminal trial — and yet having a child removed is one of the harshest sentences possible. There is indeed a different standard of proof: in family courts, a dispute must be proved by the ‘balance of probabilities’ rather than beyond reasonable doubt. There is also no jury — only a judge.

Sir James Munby, Britain’s most senior family judge, has long argued for more transparency. ‘Freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving,’ he said. This view has always come up against much resistance from his own profession, who are understandably wary of the glare of the press.

The readers who contacted me have one thing in common: they have discovered how frightening it is to find your family tangled up in this system. I was not privy to the court proceedings in the above three cases, so I do not know precisely what happened. Even if I did, I probably wouldn’t be allowed to write about it. But I do not get the impression that these people are monsters. They seem to me to be decent people who have discovered to their despair quite how much power the state can wield when on the hunt for ‘danger signs’. Behind closed doors, their families have been ripped to pieces.

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