'If you remove a baby, what does the forlorn mother do next? Go and have another'
What really goes on in a family court? Are they as secretive as their reputation suggests? Juliet Rix goes behind the scenes ...
The Guardian | Family and relationships | Life and Health | Saturday May 17, 2008
http://lifeandhealth.guardian.co.uk/family/story/0,,2280497,00.html
A teenage girl in an anorak with a round puppy-fat face and a ponytail sits in a small courtroom with her social worker. Around her is a posse of dark-suited lawyers and ahead, a bench of three magistrates. Sharon has learning disabilities. Her mother is seriously mentally ill and her father isn't even mentioned. The court is gathered to hear an application for a care order (which allows a child to be removed from its parents and given into the care of the local authority). The order is not for Sharon - it is for her one-week-old baby. Sharon is 17 and already in care.
We are in Wells Street Family Proceedings Court (FPC), in London, the largest in the country with seven courtrooms working five days a week purely on family cases. Contrary to recent publicity, this is not a closed court, hidden behind a wall of secrecy. "I get really irritated by all these stories of 'secret' courts," says Katharine Marshall, a district judge (DJ) and mother of three, specialising in family matters, who sits regularly at Wells Street. It is right that the public can't just walk in off the street and poke their noses in to other families' private business, she believes, but all FPCs are open to the press, "and it is important that the public understands what goes on".
I am certainly welcomed and given access not only to the courtrooms but behind-the-scenes to court staff and to the district judges and lay magistrates who make the decisions here. The only restriction is that I must not identify the people involved in the cases (Sharon is not her real name). Having been reminded of this, nobody in the courtrooms I visit objects to my presence.
Family courts such as this deal with most "public law" cases in which the state (usually the local authority) is intervening, or attempting to intervene, in family life. These include everything from supervision orders (keeping an eye on a family with problems) to adoption, but most of the work - more than 9,000 cases in 2006 - is care orders.
FPCs also hear thousands of "private law" cases of disagreement between parents or other members of a family. Custody battles, now called residence, are resolved here, as are issues of contact (once called access). FPCs in fact deal with just about everything in family law other than divorce and money. Divorce comes under the county or high courts, which are indeed closed to both press and public, and money is dealt with - or as one judge put it, "not dealt with" - by the Child Support Agency.
In the course of my time at Wells Street, I listen to a separated husband and wife argue (laboriously through interpreters) about whether the husband has been violent to his wife and eldest daughter - a crucial issue in deciding what contact the father should have with the children. I hear a 15-year-old boy agree that he may need to be placed in secure accommodation five hours from his home town. His mother is a drug addict, his father is dead and he has violently smashed up furniture in his care unit, and repeatedly threatened other children and staff. I also watch as the court tries to navigate its way through a case with two fathers, one sick mother and nobody having done as the court previously directed.
In courtroom five, the lawyer for the local authority is on his feet. He is setting out his case for taking Sharon's newborn away. The baby will be placed with a foster carer, the lawyer explains, at least until a full assessment can be made of the mother's capabilities. Despite positive reports from the hospital midwives, the opinion of the local authority is that Sharon is not capable of caring for him.
The young mother listens impassively as she is described as having the comprehension of a 10-year-old and a history of "absconding" from foster placements to return home to her mentally ill mother. Despite being "in care", Sharon has, in fact, been living with her mother throughout the pregnancy, but this is not considered a safe place for the baby. It is unlikely, the lawyer continues, that after the inadequate parenting Sharon has herself received, she will know how to bond with her baby, let alone look after him long term.
The opposing barrister takes the floor and with surgical skill dismembers the local authority's argument. Just because the girl may fail as a mother, he says, the authority is choosing to fail her before she has begun. How can they justify this? And why didn't they assess Sharon, who was already in their care, before the birth, instead of landing everyone in court in a rush on the day mother and baby are due to be discharged from hospital? Given that the court's first choice is always to keep families together, why have social services not found a joint foster placement for Sharon and her child?
A third lawyer, appointed to represent the baby's interests, agrees: "To remove a newborn is the most draconian of measures and should only be contemplated as a last resort." Nick Crichton, the resident district judge at Wells Street and the only DJ in England to work exclusively on family matters, takes the same view. If you remove a baby, he points out, what does the forlorn mother do next? "Go and have another one ... I once removed the 14th child ... If we had been able to help that mother to provide good enough care to the first child, the likelihood of her going on to have a baby every 12 months would have been much reduced. It is important to keep babies and young children with their birth families even if it means the local authority providing a high level of support."
Since it costs, on average, more than £37,000 a year to keep a child in care, Crichton contends that it is not only better but ultimately cheaper to try to keep these families together. After five years of fighting for the necessary resources, he began a pilot project at Wells Street earlier this year to provide intensive intervention to families in danger of losing their children, most of whom have multiple difficulties including drug or alcohol abuse.
Known as the Family Drug and Alcohol Court (FDAC), the project is expected to work with about 60 families a year in three London boroughs, addressing the full range of their problems - addiction, debt, housing, relationships, mental health and domestic violence. The FDAC has its own highly trained staff and can do an assessment in two weeks that would take social services four months. The court acts immediately and comprehensively on what is discovered.
"It is no good working with a woman 9-5 then sending her back to the drug dealers and the violent partner in the evening," says Crichton, and yet this is often what happens. In this situation, the FDAC would find the woman and her children a safe place to live and would engage directly with her partner. Children could be taken into care temporarily while the situation was stabilised. "We try to take the position that bringing up children is the most difficult thing we do in this life and the most important," says Crichton. "So we tell parents, 'We'll hold the reins for you until you can take them back from us.' We prefer not to make decisions parents don't want, but sometimes it is unavoidable."
If, for instance, the violent partner continually refuses to work with the court, Crichton says, "Although I can't direct [the mother] to leave him, I can spell out the situation and say to her, 'It's him or the child.'"
Everything the FPC does is ruled by the Children Act 1989, which makes the child's best interests paramount. Adults often do not understand this, says Crichton. "Too many parents come into my court and say, 'It is my right ... to see my child.' I prefer to think of children having rights and adults having responsibilities."
In Sharon's case, both she and her baby are technically children, but the court is putting the baby's interests first. Fortunately for Sharon, this does not conflict with her desire to be with her child and the magistrates suggest a short adjournment for all parties to talk informally and for the local authority to explore the possibility of a joint foster placement. The magistrates are hoping the solution can be negotiated rather than imposed.
Leaving the court, the justices say, "We do spend quite a lot of time sitting around letting the parties discuss with each other. It's not usually wasted time. Being at court concentrates the mind and it's sometimes the only time they are all in the same building."
In the retiring room, where magistrates wait and discuss cases (though never in front of a visitor), the justices and court staff are happy to talk generally about their work.
"Some cases are harrowing," they admit. "You do have to detach yourself." This isn't always easy, especially in cases of abuse. "One of the worst cases I ever heard," says a court legal adviser (a mother herself) "was a family of Iraqi refugees who were very strict. The teenage daughter had been phoning a young man and her mum's way of punishing her was to boil a kettle of water and pour it over her."
Horrifying though they are, she adds, over-chastisement cases are often more straightforward to resolve than other cases. These families don't necessarily have any other problems and once alternative, appropriate ways of dealing with their children's behaviour can be established, such families are unlikely to reappear in court.
"The case that really sticks in my mind," says Rachel Field, a magistrate and former midwife, "was a middle-class family in which three girls and a boy had all been horrendously sexually abused by their father - a respected member of the community - with the collusion of their alcoholic mother. The abuse only came to light when the eldest told her fiance ... They were fantastic kids; they sat in court holding hands." The eldest married the fiance and got residence with the youngest two. But Field found the reaction of one of the teenage daughters disturbing: "She was intelligent, sophisticated and wanted to be a lawyer, but she said, 'I love my father and will always support him.'"
"Some people become entrapped, sucked into skewed relationships," says Mairi Everard, chair of the bench at Wells Street, "and children will often keep abuse a secret for fear of breaking up the family." Older children are sometimes carers for their alcoholic or drug-addicted parents and want to protect them. Older children may even say they want to stay in a household where they are being abused. The court can appoint a guardian (although there is currently a shortage in London) to look into the family circumstances and help decide what is in the child's best interests. Normally, the guardian's role is to support the child, but occasionally guardian and child each have to be given a solicitor because they are requesting different outcomes.
The magistrates' favourite occasions are when, far from removing a child from a family, they are adding one. "At the conclusion of adoption cases, the whole atmosphere [in court] is one of joy," says Field. "The children get a certificate and a toy, and the family are allowed to take photos." One family she dealt with already had a seven-year-old and were adopting a three-year-old. When the legal process was over they told the seven-year-old that she now had a little sister. The child replied, "I've always wanted a little sister," and her new sibling turned to her and said, "I love you." "There wasn't a dry eye in the place."
The hardest cases, of course, are those where the risk-benefit is finely balanced between leaving a child at home or taking him/her into care. For the court to even consider removing a child, the child has to have suffered or be likely to suffer significant harm as a result of inadequate parenting. If home is dangerously violent, the decision is relatively easy, says Everard, but in cases of neglect, for instance, it can be very difficult: "Home may be dirty and unhygienic, but the child might be better off with [his] parents even in dirty surroundings." Such decisions are made more onerous, the magistrates add, by the fact that "we are aware that the care system is far from perfect and outcomes [for children in care] are often not good."
It is this sort of dilemma that the new FDAC project is hoping to address, but in the meantime, the court is realistic. "You don't kid yourself you are putting it all right," says Marshall, "You are stuck with what there is and what can be done on reduced resources. But I don't let it get me down, because there is always something you can do to improve the [child's] situation."
Everyone at Wells Street seems to agree that their job is to find "the least-worst option" and make it happen.
Sharon's case is back in court. The local authority has found a joint foster placement. It is not ideal because it is a single foster parent and she already has one child, but it is the only one they can find quickly. The hospital has agreed to keep Sharon and her baby over the weekend so they can move into the foster home on Monday. The court sets all this down in legal documentation along with directions as to what must be done - including Sharon's assessments - before the next court hearing. This case is clearly not over but for now, a least-worst option has been achieved that allows Sharon and her baby to stay together.
· Names and details have been changed to protect identities
