This post is comment by Sarah Phillimore and does not represent the views of the Transparency Project generally
A few weeks back I opined that In the matter of X (a child) (No 3)  EWHC 2755 (Fam) was going to be the defining case of the last 25 years of family law. It looks like I was right – but not for the reasons I had hoped.
What I had hoped we would see would be some open, transparent and honest discussion about the often enormous and sometimes irreconcilable tensions between doing right by parents and doing right by their children. Some recognition of the unnecessarily cruel bluntness of the lack of options for children to keep in contact with birth families, when decisions are made for adopted children, and which the Court of Appeal recognised in Re W  needed further thought.
However, what it looks like we may get is some dreadful pantomime, further spending of many thousands of pounds of public money in some charade that by holding a re hearing of a finding of fact on the civil standard of proof (the balance of probabilities) we will somehow get to The Truth and we must do this because it will benefit the child.
Lets look briefly at what happened. X was born in 2012. X suffered injuries and the local authority said the parents were responsible. The family court agreed, the parents did not appeal and X ended up adopted in 2015. But later that year, the parents were tried in the criminal courts and after hearing expert evidence, the case against them was abandoned. The Judge directed the jury to acquit; there was no case for them to answer.
The parents thus wanted to challenge the original finding of fact in the family court and wanted X back. The case wound its way slowly through the family court system, not arriving for hearing before the President until 17th October 2016. I don’t know why it took so long.
On October 11th both parents decided they did not want to go through another hearing. They were not willing to give evidence. They did not think a re-hearing was now proportionate or even feasible. The President quoted the mother’s statement at para 8 of his judgment:
These proceedings have taken a lot longer than we imagined they could, and every day that went by, the hope that we might one day be a family again has grown less and less. [X] has been with [the] adoptive family since … We now know that it is too late to move [X] from [the] adoptive parents. This would not be the right thing for [X].
I want [X] to know that we would never hurt [X], but I cannot go through a fourth long court hearing where I am accused again of lying to cover up hurting [X] or to cover up for [the birth father] hurting [X]. This nightmare has been going on now for four and a half years. I cannot take any more.
He quoted the father at para 9:
The year that has passed since we made that decision to appeal has been hell. We thought once the Family Court saw what the Crown Court saw we would get [X] back. The case however has taken so much longer than we thought it would. [X] is now 4 years old; [X’s] adoptive parents have told us [X has] grown in to such a wonderful child …
The idea of taking [X] away from all [X] knows is not something I can live with. My overriding concern is [X’s] welfare … The best way I think I can express my love for [X] now is to make it clear [X] should remain in the care of [the] adoptive parents. I strongly believe removing [X] from their care would be emotionally abusive. I cannot contemplate this and do not want it.
However the local authority, the adoptive parents and the guardian all argued that the re-hearing must continue. The local authority stated (para 16) that the parents’ attempt to withdraw was ‘a cynical response… to the strength of the evidence against them’ which overwhelmingly supported the case that the parents hurt X. Further the local authority said (para 20) that the parents were compellable witnesses and the local authority would take the necessary steps to force them to come to court. The adoptive parents (para 21) said it was important to find out the truth for X’s sake and there was ‘a strong element of the birth parents now deliberately frustrating, obstructing and impeding the process’.
The guardian’s position was set out at para 23:
It is in X’s best interests to know the truth of what has happened. In the guardian’s view, the court must address the status of the findings made by the Circuit Judge and, crucially, the extent to which, if at all, those findings are altered by the evidence before the Crown Court and/or the further evidence now available and, in consequence, determine whether the findings made by this court in any way cast doubt on the appropriateness of the welfare orders in relation to X ultimately made by the Circuit Judge. These matters are, they submit, crucial for X generally and especially for X’s life story and X’s understanding as X grows up. X, in the guardian’s view, needs an accurate narrative of the circumstances that led to X’s removal from the birth parents and subsequent adoption. The guardian is concerned that, without a carefully reasoned judgment following a full hearing, X may in due course seek to make sense of the birth parents’ withdrawal from the process by concluding that the process was in some way unfair to them.
The President touched briefly on the ‘overriding objective’ of all cases – to deal with matters fairly, expeditiously and proportionately (para 25) but seemed keen to skate over that consideration, to land squarely on 2 questions only:
- Is there solid advantage in the proposed re-hearing proceeding as planned?
- Can I be reasonably confident that the proposed re-hearing will involve a sufficiently robust, fair and valid process capable of delivering the truth?
The President answered the first question with a resounding ‘yes’. X must know the truth. He was slightly less resounding but firm enough in answering yes to the second question. He concluded, at para 30 when considering the impact the parents’ non-co-operation would have on the process:
So I am reasonably confident that the essential fairness and validity of the process will not be compromised by their absence, just as I am reasonably confident that, even if they play no part in it at all, the process will be able to find out the truth for X and for the public.
So let’s take a moment to consider what is being proposed here. X and the public deserve The Truth. And this hearing will deliver to them that Truth. Even though the parents don’t want to give evidence and may well have to be forced to court.
I can find only one mention in the judgment – at para 22 – to the fact that ‘the Truth’ will be determined in any rehearing on the balance of probabilities. The usual civil standard. Meaning more than 51% likely. I apologise if I have missed any further reference to this low civil standard – but certainly by para 27 it has vanished in the mist and what we have now is:
the re-hearing must proceed so that the truth, whatever it turns out to be, can be ascertained, finally and definitively, in the light of all the evidence now available.
I am very troubled by this. My concerns about the weight the ‘balance of probabilities’ is often asked to bear was explored in the discussions had by the Transparency Project, regarding the Ellie Butler case. I pointed out that to attempt to ‘exonerate’ someone on such a low standard of proof was unwise. I appreciate that findings must be made and must be considered definitive. But to go further and chase such findings as ‘exoneration’ and ‘the TRUTH’ is asking far, far too much of the balance of probabilities.
The Judgment and some of the arguments have a curious, naive air. That this rehearing will find The Truth, which will be crucial to X as he or she grows. X NEEDS an ‘accurate narrative’ of how his or her adoption came about. Seriously? How many of us have an ‘accurate narrative’ of our formative years. How many different choices, chances, perspectives, denials, hopes, dreams, fantasies and delusions have gone into making us who we are? Who is naive or arrogant enough to think they know The Truth?
What I am afraid this judgment and this decision smacks of to me is a wish to prove the system right. To show that the original fact finding got it right and X was properly removed from some nasty, abusive parents.
That may be exactly what happened.
But what the family system needs to wake up to, and pretty quickly, is just how much it is feared, disliked and distrusted by the families who come through its doors. I have often argued long and hard over the years that the reasons behind such fear and distrust are sometimes neither rational or reasonable, but it is very hard for me to continue to make the case for the family justice system in circumstances such as this.
I suggest that the public are unlikely to see a righteous vindication of the glorious family court system in this re-hearing. They will read the parents’ statements. They will be moved. They will ask themselves why didn’t the criminal court convict them, if they are so obviously guilty? Why did it take so long to get this back before a civil court? Just what the hell is going on here? They may see the parents physically forced back to court for a hearing they do not want, that cannot restore their child and which will offer their child the Truth at 51%.
Are any of us well served by this? I don’t think we are. How much will this rehearing cost? Not just in money, but in terms of further damage to the reputation of an already battered system. Who will put their mind to these considerations? Please do not let the family court system become some kind of vicious and cruel theatre, in a futile chase after an often slippery concept.