UK readers will be familiar with the judgement of the Court of Appeal refusing an application by Mr and Mrs Webster to reopen the case whereby their three eldest children were forcibly removed by the state and later adopted.
There has been a good deal of press coverage and not a little rumbling from within the family law service that most comment has not been based on a proper reading of the facts. My own blog comments here, while rightly slating the judges for making the wrong decision, do not properly explain where and why they went wrong. I have now, however, read the decided case written by Lord Justice Wall (you can read it here if you wish – Wall LJ, to his credit, writes in English rather than legalese). While I have changed some of my views on the case, I remain firmly of the opinion that the Court of Appeal got this badly wrong and have, as a result, let an injustice stand and further tarnished that abysmal reputation of family law.
I am not a lawyer but I do work in a legal role for a famous law firm. My own area of expertise is tax law although my analysis of the case has benefitted from information provided by a family law expert close to me (who, I expect, largely disagrees with my conclusions). Reference is made to the paragraphs of the published decided case.
The facts are as follows: In 2003, B, the middle child of Mr and Mrs Webster was seriously injured and suffered multiple fractures. Experts were called and they opined, pretty much unanimously and reasonably on the evidence that they had, that the Websters caused the injuries and were abusing their children. As a result, in mid-2004 they permanently lost custody of all three of their children who were put up for adoption (‘freed for adoption’ in the rather disconcerting terminology of the courts). In 2005, the children were duly adopted.
It is agreed that everyone acted in good faith at these initially proceedings. Nonetheless, Wall LJ admits he has “serious reservations” [para 183] about them and his colleague Lord Justice Wilson finds them “far too cursory” [para 205]. In any case, the Websters objected vehemently to the findings of abuse but were overruled.
There is one extremely sinister aspect of these proceedings that may be commonplace in the family justice system. The children’s natural grandparents were rejected as carers because they refused to accept the findings of abuse. The Webster’s themselves damaged their chances of keeping the children because they refused to admit their guilt [paras 126 – 7]. In other words, by claiming to be innocent and not incriminating themselves, the parents and grandparents were not deemed to be suitable carers. This is a travesty of justice but Wall LJ makes no mention of it as such in his judgement. If this policy remains in force, it must change at once: asserting their innocent should never prejudice any part of the parents’ or carers’ case. Failing to pick up on this point was Wall LJ’s first substantial failing.
As it happens, the parents were innocent so can hardly be blamed for refusing to admit their guilt. Wall LJ outlines the evidence that came to light in 2007 that child B’s injuries were actually caused by scurvy [paras 52 – 7]. This evidence is even stronger than I had thought from the press reports and makes clear that the 2004 hearing could not have decided B’s injuries were caused by abuse if it had been available at the time. The scurvy itself was caused because child B had a lactose intolerance and would not take solids. As a result, in consulation with the family's doctor, B was being kept on a liquid diet of soya milk only. [para 47]
Even so, only one of the initial group of experts has admitted that they might be fallible, but the congenital inability of some abuse experts to admit to a mistake has been firmly established by the cases of David Southall and Roy Meadows. One of the initial experts said the chance of scurvy was ‘nil’ although this is objectively false [para 102]. The judges all dance around what would have happened in 2004 had the new evidence been available, but it is impossible for a reasonable person to maintain that permanently removing the children from their parents (as opposed to some sort of continued monitoring) would have resulted.
The Websters were asking the Court of Appeal to grant them leave to apply for the adoption orders on their other children to be overturned. Wall LJ refused because he believed they had little chance of success. His stated reason was that the policy of keeping adoptions permanent outweighed any injustice entailed by keeping the Websters from their children. Many people, including myself, will find this conclusion unacceptable. Policy should not be allowed to impinge upon justice. That Wall LJ seemed to accept that the Websters’ suffering was a price worth paying was his second substantial failing [para 148].
Indeed, there are legal reasons for overturning adoption orders. As Butler-Sloss LJ said ( 1 FLR 221 at 228H) “The law seems to me to be clear that there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.” [para 162]. In the present judgement, Wall LJ never seems to address this point, although Butler-Sloss LJ’s condition is obviously met. This is Wall LJ’s third substantial failing.
His fourth, echoed by Wilson LJ, is his contention that the Websters should have been able to produce the new evidence about scurvy at the original 2004 hearing [paras 180 and 205]. This is an outrageous contention. It is was the family law system itself which was at fault in not gathering sufficient evidence for the 2004 hearing. There is no way the Websters themselves can be blamed, when the system is swirling around them like their deepest nightmares, for not being aware that they should seek out experts by themselves to counter the accusations against them.
Finally, Wall LJ and his fellow judges got their decision wrong. Even if we accept that the adoption orders could not be overturned, the initially care proceedings could have been and should be. This would achieve three important things: firstly it would clear the names of the Websters who are still, at law, child abusers. Secondly, it would mean that there would be a duty to communicate to the Websters’ children what had really happened. Thirdly, it would have opened the door for a court to consider whether contact and visiting rights should be allowed or compelled. We know the adopting parents object to this, but they should accept that there are other injured parties in this case and allowing contact is the least, in common humanity, that they can do. Otherwise, they risk causing themselves serious heartache when the truth, at age 18, must finally be revealed to the children.
Wall LJ asked critics of the family law system to read the materials before giving voice to their concerns [para 7]. I have done so. He also cautions against blaming any one faction (e.g. social workers or experts) [para 8]. Here I cannot take his advice. The blame for the current fiasco and the continuing suffering of the Websters lies squarely with himself and his colleagues.
(edited to explain the cause of the scurvy)
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