This blog post originally appeared in the November 2018 issue,  Fam Law 1375.
‘Abduction: (legal use) The illegal removal of a child from its parents or guardians.’
‘Kidnap: Abduct (someone) and hold them captive, typically to obtain a ransom.’ (Oxford Dictionaries)
Language always matters. It matters a great deal when you’re going to say something controversial. But there can be compelling reasons for using colourful language, for being blunt, for cutting through the waffle and calling a spade a spade – even if it makes people feel uncomfortable and upset. And that, sometimes, is what comment writers purposely set out to do.
In March 2018, I became aware of a judgment by Mr Justice Keehan, which set out in grim detail the situation of two boys from Herefordshire who had been looked after on a s 20 for 8 and 9 years respectively. For one of the boys, that was the whole of his life (he had been born to a 14-year-old girl who had probably not been competent to consent to a s 20 in any case). The judge said that their human rights had been breached. It was clearly an extremely serious abuse of a part of the Children Act 1989 which was always intended for family support, not family separation.
Keehan J’s judgment also noted that a further 14 children were still being wrongfully looked after by Herefordshire council on s 20s for what had evidently been unconscionable lengths of time. He was, I think it’s fair to say, outraged.
I was, too. Having previously read a number of judgments critical of the misuse and abuse of s 20, and the damage done to children who could have felt no security over their futures – as well as not benefiting from any judicial oversight of the decision making or care they received – it was shocking to realise that this local authority had clearly not taken a blind bit of notice. Not only that, the mother of one of the boys had several times withdrawn her consent to s 20, saying she wanted her son home. Completely unlawfully, at assistant director level, no less – and despite the stated misgivings of Herefordshire’s own lawyers – that mother’s wishes were overruled. Her son was not released back into her care.
To the general public – to any parent – the idea that the state can keep your child against your stated wish, without any legal basis to do so, is deeply alarming. To vulnerable families who have no option but to comply with the state’s intrusions into their lives, it is utterly petrifying. As pointed out by Professor Lauren Devine at the third Child Protection Conference 2018, held in London in September and supported by the Transparency Project (I am a committee member), the state’s power over our physical self is the most extreme and serious intrusion it can exert over any citizen.
It therefore seems logical that if the state has no legal right to take hold of a child – if its agents have coerced or otherwise unlawfully gained a parent’s ‘consent’, or if it deliberately disregards the wishes of a parent to return a child lawfully accommodated on a s 20 – this action amounts to abduction. Or, minus the ransom bit – though there is an analogy to be made with the compliance required of parents with social workers’ demands – it’s kidnap. Or both.
And so, knowing what the reaction would be, I said so, in print (The Guardian, 3 May 2018, www.theguardian.com/commentisfree/2018/may/03/state-secret-kidnaps-children-herefordshire-council). And it caused quite a stink. On social media, while certain family lawyers thought the piece was spot on, tweets by other family lawyers said it was ‘provocative’, ‘sensationalist’ and ‘unhelpful’. There was anger and indignation. There was almost certainly offence. The chair of the Transparency Project, family barrister Lucy Reed unpicked her own reaction, explaining in a blog post that her initial response – ‘Bloody hell, Louise!’ – was an instant recoil against the trenchant language and position I had taken (it is interesting to read her explanation of why this first reaction was not where she ended up). So let’s unpick those difficult words, and see where they take us.
Provocative – yes, certainly. A comment piece should make a strong argument so long as it’s firmly based on the facts. The intention behind publishing opinion is precisely to provoke people to think anew about an issue of concern. But saying something is ‘provocative’ goes further. It suggests that there is an intention by the writer to deliberately stoke up strong reactions – together with a soupçon of an implication that such reactions would not be justified.
However, I don’t think that, if the person who said my piece was provocative had a child of theirs abducted and held against their will, they would feel their fury and fear was baseless. It leads me to believe that this family law practitioner, at least, believes that saying the state kidnaps children is over-egging what is actually going on. All I can say in response is that looking at the plain facts of what happens to the rights of children and their parents when s 20 is abused, by logical deduction, saying it is abduction and kidnap essentially meets the dictionary definition. I don’t think any protests by a kidnapper, maintaining they only intended to save a child from what they had arbitrarily decided was an unfortunate family situation, would be seen as any sort of mitigation.
Next up: ‘sensationalist’. I appreciate that many situations in family law call for sensitivity and diplomacy. But sometimes those qualities mean professionals embedded in what has for decades been a closed system, with virtually no public scrutiny, end up skirting over some very uncomfortable truths. And so there is also sometimes an urgent need to be direct.
Directness and plain speaking don’t seem to go with lawyering though, at least in a court context, whenever I’ve sat in. There is a terrible lot of soft-soaping and dancing around the bleeding obvious. It’s particularly noticeable when there is truly dreadful corporate behaviour going on. I can see the value, in an arena that is by its nature antagonistic, of careful understatement. But from what I’ve observed, nobody is willing to adopt a position they can’t row back from, nobody says what they really think, and rarely does anyone definitively call stuff out. That might be right for court, but it is not what a comment piece exists to do. If it’s ‘sensational’ to say that when something looks like a spade and digs like a spade, that reasonable people wouldn’t have a problem calling it a spade, then it may be more about differences in the cultures of journalism and law than it is about whether a spade, is, in fact, a spade.
Finally, we arrive at ‘unhelpful’. Which begs the question, who am I meant to be helping? It is certainly not the media’s role to be ‘helpful’ to a local authority, or to the legal profession, or to a court, by massaging the human consequences of what has been done. It is our job to point out what is going wrong, as loudly and effectively as we possibly can. As an independent commentator, I would squirm at the idea I was thought ‘helpful’ to anyone but the most vulnerable people in the family law system, on whose behalf I try to highlight the systemic issues that are failing them and destroying their chance of a family life.
Having, just before I write this sentence, been reliably told that one local authority last week arrived at a family’s house late on a Friday afternoon to, as the social worker announced, ‘serve a section 20’ on the mother of a breastfeeding infant – the social worker then threatened to call the police if she didn’t sign – there is still clearly a lot to shout about in terms of this particular issue. Nobody, I hope, would argue that s 20 is universally being used correctly as matters stand (I’d love to know where those 14 Herefordshire children are now). And different professions fulfil different and distinct roles. Journalists do the job of noticing stuff that’s going wrong – and saying so in terms that cannot be ignored.
I acknowledge that there is plenty of journalism about family law that distorts facts and therefore draws unjustifiable conclusions. So my standard is this: I will only write controversial, highly critical and discomforting comment pieces if I can root my argument firmly in the facts. If I get the facts wrong, I’ll hold my hands up. If the facts are clear, then I’m going to grab that spade and wave it around for all to see.