John Hemming: Justice must be dispensed openly and with compassion

Jul 22 2008 By John Hemming

The secrecy in the Family Courts has given rise to a culture of secrecy throughout the operation of Family Law. In fact much of that secrecy was merely custom and practise rather than legally enforceable. Furthermore some recent changes in 2005 and 2006 have allowed chinks in the armour concealing the activity in the Family Courts.

Dealing, as I have, with people who are refugees from the state in the UK it has been interesting to see what has been happening. My advice to families is to remain within the law. However, some of the court judgments seem quite draconian.

One that surprised me recently was where an order was obtained which prevents a mother leaving the UK. Her children are abroad with their father and she is not allowed to leave the UK to visit them. The court wants the children brought back to the UK and so has taken her passport. I didn’t know that it was lawful to prevent someone leaving the UK. In fact it is against one of the protocols of the European Convention of Human Rights (one which the UK is a signatory). The country in which the children are living won’t allow them to travel to the UK, hence we have an impasse.

Another case involved a family now in Ireland where the mother divorced the father without him being told. She was told that if she divorced the father she could have her children back. Hence she divorced him, but they refused to return the children. She then found she couldn’t remarry him as Ireland would not recognise the divorce because the court had decided to dispense with the legal need for the papers to be served on him.

I have also seen a number of cases where teenage children are forced to stay in care for trivial reasons when they want to remain with their family. The way the system works is that a Guardian Ad Litem is appointed to represent the child. The problem is that often the guardian ignores the child’s wishes. Children who are gillick competent (age 12 plus) and are past the age of criminal responsibility are told they are too stupid to instruct a solicitor. I have written to CAFCASS about this to find out what their official policy is.

I had the big row with the Court of Appeal over an adult’s “capacity to instruct a solicitor”. What happened was that an arm of the state called the “Official Solicitor” came in and decided to concede the local authority’s case without challenging the papers and against the wishes of the mother.

This exclusion of the mother from court proceedings to me is one of the worst things. Arguably someone who has been sectioned (which she hasn’t) should be constrained from starting court cases where there is no sense. However, to prevent someone from defending themselves and essentially have a government bureaucrat plead “guilty” on their behalf has to be one of the worst abuses of the rule of law possible.

The rule of law requires that people are given an opportunity to have a trial. If the court silences them then it is not a trial. There is a similar case in Birmingham which is going to the Court of Appeal. It is quite clear that we need greater transparency and accountability in family justice. There are far too many tragic stories that arise from the caprice of the system.