Why Government and media announcements on opening the family courts are little more than a massive hoodwinking exercise

 

Response to Jack Straw’s proposals on Family Court Openness

 

Also Read: February 27 2009

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Thanks to Layton at parents4protest for hosting my new material. This page is however completely "stand alone". I am not party to any other P4P material and am not presently able to follow their work. This page is intended to form the focus only on my own stand-alone campaigning which is presently focused solely on Jack Straw's new proposals

 

15th February 09

Matthew Bell refers to the matter in the Independent on Sunday http://www.independent.co.uk/news

 

Simon Clayton

079 7979 7190

simonclayton@post.com

8 Jan 09

Jack Straw’s statement, 16th December http://www.justice.gov.uk/news/announcement161208a.htm where he identifies specifically one objective being to reverse my legal case on press freedom, Clayton v Clayton.

(no particular surprise as it only parrots the line announced in summer 06 when Harriet Harmon was dealing with matters – the only surprise is that he is holding on to the hugely problematical concept of re-instating anonymity when so many of us have explained to the MoJ how problematical this will be. And he seems to believe that this is a done deal.)

This is a matter that above all journalists, and those interested in Freedom of Speech, should take note of because it is journalism that is again under threat. Journalists, tell us if there is any good reason why it should be! Then join us – or lead, in demands that Mr Straw’s proposals are at least properly debated. And the findings properly analysed and promulgated. Especially on taking us backwards to the bad old days when identities – personal stories, of the hundreds of thousands (of adults) every year who are involved in legal proceedings regarding children, must be never revealed in public.

You journalists should be asking some very piercing questions. Should you fail to, what will future trainee journalists really think of their contemporary forbearers? Forget not that with the web material such as this document will be readily available to future researchers for time immemorial. We will see it so. I for one keep records of every communication I have ever sent. As do various of my campaigning colleagues.

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The issue for those who know the system and understand the reality of journalism and how lawyers will advise their newspaper and broadcaster clients, is that should Mr Straw’s proposals be put on the statute as they are, not only will Family Courts be still closed to any meaningful scrutiny – in the real world, but also because there will be a new statutory bar on “identifying children” this means that also no adult connected to those children can be identified (ever) because the children are identified by association with adults who media or campaigners may wish to identify. This was the situation a few years ago and many – including senior judges, have tried to move forward from that. Straw wishes to take us back to the bad old days.

And consider again what is the real world of the few years since things changed: as for “harm” to children, the stories are almost exclusively about the adult victims of injustice or a system that is non-functional. Any identification of children is incidental. It is rare that any detail is even published regarding a child’s life. John Hemming MP, a lead campaigner on Openness does not even ask that children may be identified, we only ask that parents have no restrictions on their identity being known.

And announcements on disclosure of information to people who could assist litigants and judgements being more readily available are little more than typical New Labour repeat-announcing of the same “concession”. The disclosure matters were dealt with by legal campaigners in 2005 and nowadays are rarely considered to be any real obstacle and for an explanation of why more judgements being available (more propaganda) please see the rest of this document.

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For my description of the hoodwinking in Ministry pronouncements, and crass reportage of these pronouncements, line by line,

click on this link: Critique of recent newspaper coverage and Ministry of Justice position

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And as for secrecy (sorry MR Straw and co., “privacy”), let us, whatever, call it a barrier to the normal flow of information. A wall perhaps. Here is Orwell on walls:

The first thing we demand of a wall is that is shall stand up. If it stands up it is a good wall, and the question of what purpose it serves is separable from that. And yet even the best wall in the world deserves to be pulled down if it surrounds a concentration camp.

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If you find anything said here has any merit then please, even if the body of text begins to bore you to death, do look at the end section: Support / campaigning / what you can do to help

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This is by nature a difficult subject to sum up. This page is necessarily long winded. Is a polemic. For a shorter version trying to describe what happens in the "real world" then click here

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In June 2006 I won a “Landmark” Court of Appeal Test Case – Clayton v Clayton, which clarified the law on allowing parents to take their stories of injustice or dysfunctionality within the Family Court system to the media (either custody cases, or children stolen wrongly into care – a not infrequent event).

Prior to my case de facto everyone was gagged from ever doing so: every lawyer or judge practising in family law, even fellow campaigners against court injustice, would always say it was unlawful to discuss cases in public. And certainly it was always thought unlawful to breathe into any reportage any sense of the human form by describing the people involved or giving any clues to their identity – ordinary clues such as where they live or what they do for a living. In other words there was a huge barrier to revealing injustice to and through the media (See note 1 below). The Law Lords in that case clearly agreed that journalists and their editors are far less likely to print a story when it is stripped of human content.

Furthermore there was, has always been, and will always be, a considerable inconsistency which is that in respect of celebrities or other individuals, who for whatever reason regularly attract public attention, and are connected with children who have been subject to legal proceedings, confidentiality rules are not applied and clearly cannot be applied. If they were, media organisations would be in and out of court every other day. (note 2) That particular footnote all newspaper editors should have a good look at!

Geldof, Blunkett, Ritchie, my friend Birgit Cunningham who now campaigns successfully using her court case as example; in the McCartney-Mills settlement, leaked court documentation became a daily feature – clearly a deliberate strategy, unquestionably illegal an activity carrying a hefty prison sentence. Yet no one in authority ever seems to mention these “crimes”. (Remember George Orwell’s wall – The first thing we demand of a wall is that is shall stand up. If it stands up it is a good wall………….)

I saw that all this was likely wrong in law, against all principles of natural justice, and becoming unworkable as injustice in the family courts was propelled to national prominence after the successful awareness raising campaign of protesters. The shattered lives of many more ordinary people were rightly being described in the media. The right questions were being asked.

The court had to agree with me. Though a tad reticently as those for whom secrecy is most convenient are the many many judges annually, in the lower courts – but even regularly the High Court!, who are found at fault by their friends in the Court of Appeal – the worst remedy they will suffer is advice to review practice, never of course any sanction.

I will point out here that there is a considerable catch 22 in the family court system which should ring alarm bells with any reasonably educated person. A catch 22 that almost guarantees injustice or to put it is straightforward language: that almost guarantees that loving bonds between children and parents will frequently be destroyed (note 3).

After “Clayton” (as Clayton v Clayton is known in legal circles), or even as some call it “The Clayton Lacuna”, the opposite was to be assumed – one could go to the press, who were in turn relatively free to print details, unless there was an injunction restricting such. Once a case was over at least - though this is still problematical as many cases – especially the cases with the most injustice as a feature, are live for years (e.g. Mark Harris’ case described below – he would certainly be unable to appear in a story like that is his custody case had not finally closed). And victims of such injustice are completely gagged for the duration of their cases – often years. Risking long prison sentences if they speak out. And bearing in mind that judges can still hand out gagging injunctions without any proper trial (“ex parte”, i.e. without a hearing where all parties present their case) and to appeal anything in the law courts is horrendously expensive, or impossible if one needs to seek justice through a Legally Aided defence (see below), we still have a far from transparent system.

That said, there has been a mini-tsunami over the last few years of media reports, memoirs being published and web-based self publishing where parents are identified, and especially when there is some stark injustice parents are being identified even when quite obviously there will be further court proceedings or there are clearly still live proceeding. Sometimes with judicial approval, but more likely by brave people ignoring the legal gagging of the present law. But it is still against the law. Yet rightly there have been very few legal moves to stop this wave. (though those taking part in this mass law-breaking naturally will be subject to stress and sleepless nights).

Friends have said to me that I could cut out the Times editorial of 17th December 2008, frame it, and sit back basking in the glory. Without Clayton it wouldn’t have all got this far. “Job done”. Something the grandchildren might one day describe as positive in their family history. See me as a bit of a hero. Keep my mouth shut and no one would know about any reservations I might harbour about the outcome following my attempts to advance the thing.

At this point I would just like to add that my case would never have got off the ground without Dr Michael Pelling’s earlier extremely important work trying to educate the courts on the need for openness.

But just as I would never accept a system that usually relegates one parent to that of bystander in his child’s upbringing – for myself or anyone else, nor do I accept that the advances so far, real and heralded, are anything more than the mutterings of interested parties and buggering about in advance of the proper revolution that is well overdue but is not yet arrived.

There is a real emergency. In a real emergency radical action is required. Emergency measures. The emergency is that rather than clear, well understood, essential reform, in this area of society and law that effects millions, and skews society in an extremely unhappy direction, we keep the status quo now further complicated by backwards looking restrictive statute on “openness”. Sweetened with, as everyone who is connected with the issue knows, the odd relaxation that will make little or no real positive difference. I will try to explain as fully as possible where we really are.

It should be remembered that in family courts there is usually only one judge sitting, no jury, operate behind completely sealed doors, and those judges have the powers to imprison citizens – regularly do, at something like the rate of 4 or 500 people a year. Often for trivial matters such as an estranged father waving at his child who he spies in the street. They are Secret Diplock Courts. And according to Mr Straw will remain just that. Excepting the Court of Appeal, where there is some openness. But by the time a case gets there it is often too late. And it takes a lot of luck and perseverance – to be granted an Appeal Court hearing it is necessary to persuade a single judge that one has a case – most attempts fail at this first hurdle. Legal Aid is rarely available for this stage of the appeal.

And as many have pointed out the level of proof required in a family court is much more flimsy than in other areas of law.

The citizen should also ponder one other unique aspect to the family (in)justice system. Surely an argument for even more transparency and accountability than in other systems of justice rather than (far) less. It is that many of the something like half a million parents a year who find themselves in the family courts, for a variety of reasons, end up having to conduct parts of the case as “Litigant in person” (LIP) – appear in court without a lawyer; which in effect means they will be spending a lot of time having to talk directly to the judge and the opposing legal team, and also the so discredited CAFCASS officers who write highly personal reports about them. The usual reason is that they cannot afford lawyers (at £200+/hr) and legal aid lawyers at best have a long queue to get in their offices. And over the course of the year or so of litigation the LIP may spend days in front of the same judge and arguing with the same legal foes. Naturally this all becomes highly “personal”. Yes, rage and hate develops towards individual judges; and as for the “opposition” perhaps the fact that even mild mannered women of previously untarnished records such as Heather Mills and Birgit Cunningham come out of the family courts with convictions or criticism for their physically retaliatory actions (note 4) is telling.

No judge would be foolish enough to jail Heather or Birgit, but consider the ordinary, upset, parent who is LIP. And bear in mind that this person may be facing one of the greatest horrors of all. Mr Justice Munby pointed out that being prevented seeing a beloved child is just that – worse than a life sentence (see below for detail). Quite obviously the family courtroom is a place where extremely heightened emotions prevail. Yet uniquely the person likely to be the most upset – the parent unhappily acting as LIP trying to defend their family life, must (in the real world) have direct and frequent dealings with the judge and legal opponents – the people who are his “jailors”. Of course emotions frequently boil over. Of course many have extremely negative feelings towards judges and the system. Yet the one person who is focus of so much in the process – the judge - so much in family law is entirely subjective, has the power to jail the often very upset litigant parent before him with no reference to anyone else and in complete secrecy.

Of course extreme feelings develop towards individual judges (and quite certainly judges develop quite strong emotional reactions concerning an LIP they have to deal with day in and out over long periods). Express rage or disdain and what is the potential reaction from the judge? The question must be put: is there in any other area of society where such an unbalanced relationship exists? And a further even more Kafkaesque aspect is that there seems to be some quite different legal flavour to the process of being jailed by the family court and possible remedy – it is questionable whether or not one can appeal, and unlike criminal law where there is an automatic right to a publicly funded lawyer, even those imprisoned by the family courts do not seem to have that right.

This must ring alarm bells……….Secret, Diplock Family Courts………not only handing out Mr Justice Munby’s ultimate penalty of preventing access to children, but also having uniquely intense and prolonged dealings directly with very upset parties to cases….. .and many many on trial having no way of getting any legal representation.

The dysfunctionality and delays within the system still today causes many thousands of parents to go for years without seeing their children. They are treated as guilty until proven innocent. Almost always they are “innocent” - of the strategic false allegations made by a disgruntled ex partner – or more likely their ex partner’s lawyers who are “sexing up” matters for their own lucrative benefit. A standard simple case (with an obvious conclusion if it were to follow the latest legal authorities), that should be dealt with in a few hours, becomes a fight over years. With endless legal manoeuvring to prolong the final trial and judgement. So, in contested case the norm is it takes a year or more before a parent (usually a father) is given the opportunity to “prove” innocence and then beg back from the courts his curtailed family life.

Often the court will then stop him having a full life with his children as a new “norm” has become established for the children – they know longer know how to live with their father (according to “experts” – none of whom have any properly tested scientific research to back up their line) so it is against the children’s interests to let them now do so! And it is the easiest route for the court to then parrot such an approach – do nothing, least effort for an already overburdened system; just see that the status quo continues. Many give up as this fight can cost tens of thousands of pounds. Legal Aid has been cut back so most requiring legal aid to protect their life with their children get a less efficacious than ever defence (note 5).

Going back to George Orwell’s wall……..doesn’t this all sound a bit like the concentration camp?

The dysfunctionality is perfectly described by Mark Harris’ story:

http://www.dailymail.co.uk/news/article-464132/Jailed-waving-daughter.html

I have my own of course which has some echoes – though actually, in a relatively short time, I managed to conclusively win my Shared Residence custody case. But only because my story had already appeared in the media due to earlier criminal proceedings (positively – the allegations against me were seen to be questionable or at the very least missing the point), after which my case was heralded as something of a minor “cause célèbre”. And threat of further media exposure – a position I was lucky to be able to make the most of, and did, because our human faces had already been displayed to the court of public opinion which had seemingly given a positive judgement, made the court in my own custody case largely act with some fairness and professionalism (after a bad start!).

 

Under Jack Straw’s new proposals (to reverse Clayton) as announced at: http://www.justice.gov.uk/news/announcement161208a.htm  the following would almost certainly become illegal:

http://www.dailymail.co.uk/news/article-464132/Jailed-waving-daughter.html

[Harris/Mail/26/6/07]

Mr Straw knows that quite rightly those suffering injustice are touching the nation’s heart strings because they have been able to present their human face. A picture will speak a thousand words. This is precisely what he now wants to stop with new draconian law. At the same time trying to dress up his “reforms” as being progressive. Sadly with the complicity of the Times Newspaper who are reporting his reforms as only positive in spite of the fact that everything that I raise here has been raised repeatedly over the last year or so with the Times journalists who have not only covered this matter in lengthy pieces but also claimed “credit” themselves for forcing Mr Straw’s “reforms”.

I have myself been told many times that my own story in the Mail with a lovely photo http://www.dailymail.co.uk/pages/live/femail/article.html?in_article_id=393926&in_page_id=1879  does indeed sum up the eventual justice of my custody victory. (Which also incidentally is used as a template for helping other warring couples see sense and settle amicably). Or as I far prefer to focus upon, perhaps sums up the loving bond I have with my daughter, Esti, which society should only have tampered with if there was present some extremely pressing reason. That picture………..perhaps speaking those thousand words.

But the pictures that concern us (campaigners) – the ones Mr Straw wishes again to be unlawful to print, are those now routinely appearing in the media that show the empty bedrooms of children stolen away by the state in mal-administered and divisive court cases. Or, more routinely (tens of thousands a year), the empty bedrooms in households where a father (almost always) is not allowed to see his children for years whilst the aforementioned dysfunctional custody courts grind away doing nothing to help. And so often are only putting in legal measures to prevent the father seeing his children (note 6) whilst conning society that the system knows best and is operating “in the best interests of the child”.

The children pictured on the left of this webpage: http://www.parents4protest.co.uk/layton_bevan.htm have only visited their father for a few weeks over two years when previously they lived with him half the time. There is no evidence that the father has behaved in any way that is unsafe or unlawful. The court knows this. Indeed there is incontrovertible evidence that there have been incidents when the children have been with the mother which have endangered the children. The mother’s ex-partner is presently in prison on remand for one of these incidents.

Victims of injustice (too dry a word, victims of the state wrongly stealing a child from a parent – even in ordinary custody courts where the stealing is done via preventing them being reunited) have rightly found new methods of fighting back.

Citizen journalism: blogs and websites. The risk of all this new proposed legislation is hordes being carted off to jail from the Diplock Family Courts.

We found our most powerful weapon – provable as newspapers must have a readership for the stories they print so there is clearly some public demand for our stories, our human faces.

Above all what Mr Straw knows will be the result of his reforms will be more and more legal cases to test and refine his new legislation. My opinion is that his announcements are calculated with exactly that in mind – above all to cause the longest delay possible in any changes really making any difference: Years of confusion and fear as again we go back to the position where if one’s identity did slip out in conjunction with a report of injustice in the Family Court then day’s and nights would be spent fearing the court summons or summary arrest. I suspect Mr Straw knows this full well. In fact the proposed “reforms” are all calculated with exactly that in mind: effectively to silence us all for the years it will again take for Appeal Court clarifications and analysis of the proposed new law. Again we are back to complete de facto gagging.

And in family law where a legally aided defence is not automatic (even when facing accusations that carry potential imprisonment), for someone with a hard-worked-for home for example, that knock on the door can often also signal financial annihilation – tens of thousands of pounds will need to be found immediately (yes, they charge up front) for barristers and solicitors.

Furthermore modern society, the “demos”, whatever you might like to call it, has a very important check and balance within. It is the “campaign”. There are no doubt occasions when innocent men and women find their lives destroyed by the criminal justice system going wrong (again though it is always though the people within that system who cause injustice).

One of the best described injustices and campaigns to obtain his eventual freedom is that of Rubin Carter in the US. 20 years in jail for a crime he did not commit; in the UK we have Barry George of late, and many others over the years. And we have those fighting now for relief from clearly disproportionate action against them. Garry Mckinnon an example.

Someone who strongly believes they are not guilty of crimes – a mistake; they have been fitted up; the law works wrongly – is it not that virtually everyone believes Guantanemo is inappropriate? will traditionally seek to campaign their way out of the situation. They will usually have people from within the system supporting them: their lawyer might make public statements describing quite emotionally the evil of an injustice. Sometimes they will be in a position to do the same themselves – if the charges against them or civil or they are bailed in the pre-trial period. There is some vague concept that not so much should appear in public pre-trial because it might hinder “the administration of justice”. What this means in reality is that a jury might be prejudiced. This potential problem cannot be said to apply to Family Justice as there is no jury to prejudice! Yet the family justice system is the only one where a citizen is completely denied the right to campaign, lobby and politick pre-trial.

So in Britain even, and far more so in other countries, except for in family justice, part of the democratic process is that if we face grave action against us we are at some level or other often allowed to appeal to the court of public opinion. In America it is blatant – both sides, the defendant and prosecutor, often both embark on a PR offensive employing PR professionals if they have the means or it is a sensational matter. Again, the purpose is to advertise the humanity and personality of the accused or wrongly convicted. Or it may be initially just to spread awareness. But it isn’t only for those things. In both situations the purpose is also to attract attention – either from those who work or volunteer in helping those wrongly accused – there are lawyers and lawyers, but also to the many others whom for one reason or another it is important to have some help from or recognition.

Hurricane, the story of Rubin Carter’s journey to eventual freedom, tells a story of how many people – some lawyers - unpaid, some unpaid friends donating years of their life to assist, and a mixed band of others, worked full time for years at a time to secure his eventual freedom. And without whom, putting in such a massive effort, that freedom would never have come. And they were to a man and woman all brought to him by a public awareness campaign that used an initial auto-biography, written from prison, hit pop songs, benefit concerts and much dealing with the media, to sustain that work. Millions of dollars needed to be found just to provide people with basic subsistence and essential expenses over the years of the campaign. And the only way all of this could take place was because of Carter’s personality being available through ordinary open reportage of his personal story. It was his personality that drew support.

And a personal perspective – I wonder how many educated people who consider themselves sensitive to matters of social justice, past or present CND or Amnesty members, Guardian Readers, etc., would slightly balk at the “man who cannot be named………” when he comes at us over the airwaves or in print form. The assumption is that this unnamed man is “other” – not of us. Those for whom our inability to talk out is convenient know this.

Before I found myself described in a custody court as something that I knew I was not, I too used to feel uneasy upon hearing those reports – I am honest enough to say I was infected with that middle-class smugness that held me to believe that there must be something a bit dubious about this unnamed man. He wasn’t like me or my kind. A small shiver would go down my spine – “I don’t even want to know who this man is…….:. “. But the moment I realised I myself may be one of those unnamed men, and was once him for real http://www.guardian.co.uk/law/story/0,,1718742,00.html , well it all changed for me.

Given a human face the mark Harris’s (rather a lot of “the man who cannot be named” stories I’m sure in his past), and many others like Jason Hatch who scaled Buckingham Palace in 04, we see immediately they are of course people whom we cannot help empathising with. Or at least have some emotional reaction. Everyone, even I, still – after several years of seeing what the state does to innocent people in the name of “justice” still has a huge job finding empathy for the legally unnameable. Give me a name and a picture and the empathy flows. But then again, perhaps this is exactly what Mr Straw knows.

The Real World – especially for journalists and media editors.

Even after Clayton there is still confusion about what is and what is not legal. For example in late December 08 the following story was covered in all the media:

http://www.dailymail.co.uk/news/article-1103226/Couple-took-baby-son-seven-hour-drinking-session-escape-jail.html

http://www.telegraph.co.uk/news/uknews/4031080/Parents-who-took-baby-on-seven-hour-drinking-session-spared-prison.html

http://www.thesun.co.uk/sol/homepage/news/article2082507.ece

http://www.guardian.co.uk/uk/2008/dec/30/ukcrime-drugsandalcohol

http://www.independent.co.uk/opinion/commentators/sophie-morris-children-and-alcohol-tough-rules-required-1220000.html

ON 30th December 2008 at 17.45 the BBC reported the story in full on the PM program……..names given.

These pieces are all almost certainly illegal. From what seems to be understood young Callum is the subject of court proceedings (the Local Authority have “fostered” him which is almost always done as a result of court action). And as there are ongoing proceedings it is still against the law to identify anyone connected with the case in public. I hate to be vague (my “almost certainly”) but the point I make is that we can rarely be sure – why the law as it stands, as it will remain even moreso after Mr Straw’s proposed law changes, will always confuse; why we will return inevitably to the same place we were before Clayton which is the media will not print anything for fear of crossing legal lines.

And the point: Surely no one can object to the way any media organisation has covered the plight of Callum Tyler and his parents. It is excellent reporting and the coverage is most naturalistic. There is no need for any identities to be hidden. Society needs to know who Mark and Petra Tyler are – we need to be able to think the thing through for ourselves.

I have pointed out to a raft of journalists how returning to the old regime (“reversing Clayton v Clayton”) such a report would once again be censored: "a man and woman who cannot be named for legal reasons.........." Yet if Mr Tyler had simply been caught for drinking and driving at 100mg blood alcohol level, with his child onboard, without any local Authority involvement (threat of adoption), in the aftermath the identities would of course remain printable. What difference would it make to Callum? And if his father had been three times the limit and mown down 15 New Years eve revellers and been branded throughout the land as “Sozzled Serial Killer” again Callum would be identifiable: “Sozzled Serial Killer likely to be jailed for the rest of his life; son Callum pays the greatest price of losing parent…….” I won’t make a Sun headline writer but I hope the point is made.

As the argument expands it must be clear that the line that MR Straw intends returning to is completely artificial.

Following the “Clayton Lacuna”, there have been a raft of media pieces – print and broadcast, where parents who have suffered injustice in the family courts, or far more rarely as in my own case, who have turned the thing into a positive victory, and have been given the opportunity to present their humanity for all to see. That is what it means to go into the media – to speak to members of the media and tell the story of lost family life knowing full well we have no control in how our humanity will be represented. And we usually do have a “choice” - no one is doorstepped by the press pack – most journalism is done on the phone nowadays – people like me have total control over whether or not we chose to ring back when a journalist leaves a message. It is powerful this letting – nay encouraging, our humanity be explored. That is why Mr Straw wants to stop it.

And above all – the “not” of anything is always the most interesting aspect, look through virtually everything printed over the last 2 ½ years that has been written about people like me who have emerged from the family Courts; what is perhaps the most telling is that newspapers have not printed obviously private and embarrassing detail. Nor have the media been judgemental when there is quite obviously a “guilty party”. The reporting has been largely sensitive, careful, designed not to embarrass wherever possible; certainly designed to cause any child who is identified in a story as little difficulty as possible. The journalists know who the guilty parties are, but in deference to the children do their best to skirt over the hurtful. Anyway I have been told again and again that most journalists know that the system is at fault as the profession has a high divorce rate so most in it know how dysfunctional, wrong-thinking and mal-administered the system is so are very careful not to suggest culpability in private individuals.

I can never prove this of course but I have been told time and time again by senior journalists that this is because they all understand that there is a whole raft of wrong thinking and injustice that underlies these stories. The only really “guilty party” is the highly paid Whitehall mandarin who has known for years that the system is unjust and a complete failure, yet does nothing. For evil to succeed, all it takes is good men to do nothing…………

Additionally even the most shameless editor knows that if his paper in any way allowed a child to be shamed or embarrassed in any way that wasn’t absolutely essential to a story that is unreservedly in the public interest then he would lose circulation at best – boycotts following some public editorial faux-pas can be severe in their financial effect; be in expensive legal hot water for years to come at worst.

Mr Justice Munby – a radical but nevertheless sometimes highly thought of “senior” High Court Judge , even though he did jail Mark Harris (sadly almost alone in his occasional positive radicalism), rightly said in 2005 that removing a parent from a child was the ultimate penalty a State can do to a citizen as we no longer have capital punishment. (We must assume the ultimate penalty for both parent and child).

This was not some off the cuff comment but in a carefully formulated paper (which, in the Clayton hearing, Lord Justice Wall, the most senior Appeal Court Judge – in reality, suggested he was party to as he made a point of informing all present how he was sitting next to Munby J during its authoring).

Day in day out there are literally thousands of fathers to whom that is still happening de facto – by the dysfunctional system that can take years to allow them access to their children when they are innocent of any supposed reason why they should not. And it is the “ultimate penalty” – even when a parent is in the early limbo phase of a case when contact with their children is suggested by the authorities but not forced by court order, because by then most fathers will have encountered material that informs them that if they are unlucky they will indeed be blocked from seeing their children again. It is the normal human reaction to worry like hell – fall to pieces indeed, when something suggests there is a real risk to one’s normal family life. Many, in my experience the majority, who face this uncertainty (“living bereavement” as coined by Matt O’Connor) are very badly damaged by this. I help people in family courts and I find many fathers especially to be suffering something akin to PTSD. Many spend time on anti-depressants. Many fall to pieces and are unable to pursue their rightful legal claim to (eventual) formally agreed and prescribed life with their own children.

And then there is the Court of Appeal: In the Court of Appeal proceedings are in open court. The great legal campaigner Michael Pelling achieved a relaxation of strict anonymity in the Appeal Court (note 7). The Court of Appeal has happily ticked away for some years under Michael Pelling’s hard-won new regime. Where are the complaints that it is against the proper order of things?

Yet Michael Pelling’s important legal development will also clearly be statutorily reversed if Mr Straw has his way. We are not sure what the stated aim of achieving uniformity in all tiers of court is going to involve exactly, but plainly it will impose restrictions in the Court of Appeal that are not currently there. (note 8).

And then further afield. There can be few in the legal world who have not heard of the Landmark case of Clibbery v. Allan. It is a cornerstone of modern order relating to many areas of law. Does Mr Straw also have in his sights a reversal of Clibbery v. Allan? (note 9)

The question I, and many others, want answered is why is there any need to go backwards?

There is to my knowledge no “mothers4annonymity”.

There is to my knowledge not one single criticism of the “Clayton Lacuna” announced at http://www.timesonline.co.uk/article/0,,2-2246764,00.html  (one Error, Esti was then 7)

 

considered a pretty positive advance in parliament:

http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm061116/debtext/61116-0013.htm#06111632000930

http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm061116/debtext/61116-0014.htm

yet we go to:

http://www.familylawweek.co.uk:80/site.aspx?i=ed29076 ………as usual weasel words are employed to dress up what is just a different way of describing restrictions, in this case the concept that privacy is desirable - all family lawyers have no idea about the real world – lawyerese – lawyers are the main beneficiary of anything that prevents detail being revealed in public.

No one has ever criticised my law in the press or even in a court to my knowledge (and I have fairly good info-collecting methods).

There have been no complaints raised in the House of Commons. Even the authorities (CAFCASS etc) have failed to present anything on paper that suggests they believe Clayton has caused any problem for anyone! And they have had 2 ½ years.

There have been a fairly regular succession of conferences which have either in part or in whole had the objective of studying the effect of Clayton on family law. One barristers’ conference I know of was entitled: The Effect of Clayton v Clayton on Public Law. Much has been written in the legal press on the case. I have never read anything that suggests professionals have any complaint – or any complaint they would care to defend in public! Yes, I and many others, know that they all want it reversed because the body which to a man and woman is inconvenienced by the fact that their own dastardly deeds may surface is the Family Law industry. But they don’t come out and say it clearly – because their argument cannot be sustained.

And consider this – to anyone regularly following matters Family Law over the last five years, what is probably more evident than anything else is that not only the judiciary but also public bodies such as CAFCASS and others have spent the last five years putting a heck of a lot of effort (and likely of course public money) into developing their PR departments. Lord Justice Wall alone has become consummate performer in the media – clearly lapping up every second. (He told the gathered crowd at my hearing, Clayton v Clayton, how he would often write the press release on a case he was dealing with before he wrote the formal judgement!). My point – if they had anything useful to say they would surely have said it by now. (The proposal to bring back in de jure anonymity was raised almost as soon as my victory was announced).

CAFCASS were extremely hostile to my case in court during my hearing - Brian Jubb the CAFCASS barrister even suggested to the Lords sitting on the bench that this piece http://www.guardian.co.uk/law/story/0,,1718742,00.html published the day before my hearing, was offensive to the right order of things. But the Appeal Court had to disagree (and notably nobody appealed my victory to the House of Lords). So it isn’t that they haven’t had a chance to rehearse any valid counter-arguments they may have had.

That Guardian piece, I have myself time and again been told, has helped many warring couple find a new way of declaring peace……….focusing them on finding help in agreeing shared parenting and proper agreements over arrangements. The fact that if such a process became a norm might put a lot of CAFCASS personnel (and their barristers), not to mention family lawyers and judges, out of work, is perhaps telling.

There have by now been a fair few cases which have been covered in the media. And also individuals suffering injustice are increasingly setting up websites or online social-networking or blog pages that tell their stories. There have been several books published by family court victims and campaigners that name many people connected to difficult custody cases. Where are the stories that even suggest that children are being harmed by this? These injustices are in 99.9% of cases caused by one parent acting in an obstructive way towards another parent, with the complicity of an, at best, dysfunctional system based on wrong-thinking and bad law (or lack of good law such as shared parenting by default as more and more other countries put on the statutes). All propped up by a bankrupt (morally anyway) judiciary and legal profession. I ask the question again: Where are the legions of folk who say the current, post Clayton, regime is problematical?

I will re-state my point as clearly as I can: where is any complaint about the post-Clayton world? Where is any written reasoning that it has caused or will cause any harm. Which judge has said in either his court or in the now regular media interviews they clearly enjoy, that there is an issue? Which MP has told the house of some disaster following Clayton? Where is research along the same lines? Yet Mr Straw clearly is very concerned about the “Clayton Lacuna” to such an extent that he is adamant about “reversal”.

All that said (about Mr Straw), we see he is only following in the footsteps of Harriet Harmon who first announced her intentions to effectively reverse Clayton. Is she too powerful for him to risk showing dissent in the ranks?

***

There is rightly now a lot of broadcast media under development - some clearly very thoughtful – asking the right questions (i.e. BBC’s planned 3 hours of documentary on the “20th Anniversary of the Children’s Act). Such programming relies on Clayton standing up. Reversing Clayton will mean most must now be cancelled. These are programs where quite rightly journalists attempt to tease out the human forces that underlie the tragic waste and destruction (to family members at least) behind battles over access (and we say decades overdue) – or more accurately described the prevention of access, in respect of children. And without showing the full humanity – the human faces of those involved, enquiry falls flat. Annonymisation will mean that these productions will never see the light of day.

We live in the age of reality TV. Stopping the portrayal of REALITY (the real human face) is completely backwards. Completely out of kilter with the Zeitgeist. Our contemporary culture is becoming almost posited on who is the real person. It may be disliked by many – myself included, I threw out my TV nearly ten years ago, but we are a small minority. The majority calls for the fullest possible exploration of reality.

It is against all natural justice but also inhuman to bring back in anonymity for many reasons but perhaps one of the most ultimately important is that human society is based on being accountable for ones self – for who we are. The criminal justice system is based on the plausibility of the human being taking the stand – in person. Justice is only a human concept so the rules of what it means to be human must apply to it in every way.

We are judged every minute of the day according to who we are – how we come over to our peers – the gossip…….or if promoted to being in the public eye, how plausible we seem in whatever media we are to be observed. Removing that link – the link between the information available on the events and the viewable humanity of the person alleged to have conducted himself in such a way is completely inhuman. It must only be the norm in the most extreme situations.

Following the above it could be posited that most of the problems with the family courts are due to the fact that parents can make false allegations (proven time and time again to be just that – false or at least obviously unreliable– see appeal court judgements) because they know they will never be judged in the far more important court of public opinion.

Similarly, is it not the case that someone will far more readily go to the media and present false testament if he/she knows that no one will be even able to ascertain who the accuser is – won’t normally even be able to identify the legal case. And the normal “safeguards” against taking false testament to the media will be interfered with: surely people are very careful about what they say in the media about other people because they know if they are uttering complete untruths then someone out there may well hear their lies and pass them onto someone who may seek redress. Sometimes even causing public shame for the liar.

The way society works is you put over your position and you are judged on it every second of the day. And the natural order is that it is a “group” who will judge – the group takes the consensus position. That group might be a jury in a criminal court or a group of local or workplace acquaintances. In any other judicial setting there will also be the “group” comprising the relatives and friends of parties in the public gallers. We have to tell our stories in front of all these groups – and will be judged – in part at least anyway, by the majority reaction – which hinges almost completely on our plausibility. Only properly ascertainable if we tell our stories in person. This is the normal check and balance in human society.

Breaking this entirely normal human circle is precisely what the Nazis and other totalitarian regimes practiced.

A quotes from Todorov (1999) who has tried to sum up totalitarianism and what really happens to the human spirit when faced with it – he tries to work out what are the most important human attributes that come into play when we are facing extreme circumstances:

Dignity, he [Améry] now argues, is a form of social recognition. Society is the arbiter of individual worth, and we delude ourselves if we think we can substitute our own opinions of ourselves for those that others have of us. An individual can claim whatever dignity he wants, but such claims are futile if society declines to acknowledge them.

Well if we cannot even reveal who we are to “society” then how on earth can we solicit society’s opinion on the matter so that society can either confirm or deny that dignity.

And what of the judiciary and family law industry. In virtually every press piece or paper that the judiciary have come up with they complain that unfair accusations are made against them. Well then all I can say is they provide the very reasoning why we (complainants) should not have our identities hidden: if I go into the public domain – talk to the media, with complaints against them or their system, my complaints should be properly testable, impossible if my identity must be hidden.

Working out right and wrong, moral or immoral, good and bad, requires a trail of evidence. Often when arguing what is just or not, a paper trail. If I cannot be identified, let alone cannot properly share my paper trail with the media or the court of public opinion (which will still be the case even after any supposed reforms – it remains illegal to talk about “evidence” in family court cases) then I remain just that figure – the anonymous accuser who is not permitted even to show proof to back up my claims. And indeed that person may be tempted to tell untruths. If the judiciary feel put upon by unfair criticism then surely the remedy is to let us put our case into the court of public opinion with no restrictions at all. In extreme circumstances, just as happens quite normally in other areas, the whistle blower may still feel the need for protective anonymity. And may be granted such by an understanding media. But that is a well tried system and well understood.

The first rule of journalism: WHO.

The Times knows all the above - many emails from me alone, all read as they are answered in person usually (Camilla, Frances). But they consistently fail to flag up any potential problems. Clearly the Times is complicit. They are hoodwinking their readership and as the nation’s most important source of legal reportage, hoodwinking everyone. (They have also clearly received in depth briefing on my case and others where I discuss these very issues – I’m convinced have seen representations to the court that are meant to be completely confidential – not that I mind, I have nothing to hide from anyone).

The Times are announcing the following falsely:

  1. I wrote to Jack Straw 2-1-09 saying: “Camilla Cavendish implied in her Times article 17th December 08 that you were unhappy to be unable to enter a family court as observer. Well her appalling journalism fails to note it would seem that after your reforms you will still be unable to do just that”

  2. They take some of the credit for the “reforms”. The opposite is so – their slanted reporting has fed into the intention to further deny freedom of reporting.

  3. HMG announcing reforms that have already been achieved by legal campaigners – e.g. in a famous case in 2005 we clarified once and for all that court papers could be shown to various people such as MPs, advisors etc..

  4. Their Editorial leader on 17th Dec 08 spoke of a “three-year campaign” [by the Times]. This is an offensive claim. Three years ago I and many others told the Times time and again of various realities and they failed for some time to print anything. Only printing the smallest snippets when they eventually began to take some interest. Indeed they have also printed huge tracts of MoJ and RCJ propaganda against our “campaign”. Material such as much contained in this document has again and again gone to their journalists and only the most insignificant echoes appear in editorial. Whereas the “party line” handed down from The Royal Courts of Justice and Ministry of Justice: “No bias/ little injustice”, is usually printed in all its fullness. Not once have the Times noted that reversing the current position on anonymity has considerable implications and furthermore has consistently been criticised by “campainers” who are regularly in touch with them.

  5. Just by their 4th form standard journalism they are complicit in the additional whitewash in respect of announcements that it will be a positive reform that judgements (annonymised) are to be made more available to the public. Any 4th former can work out the problems with that. To point out only two of the problems, firstly, the cases with the greatest degrees of injustice – or injustice that will ever be put right, because the greatest injustice is the many thousands who are forced to leave behind beloved children faced by a completely dysfunctional system, those greatest visible injustices sometimes get to the Appeal Court (after thousands of pounds and often a year at least of delay) and the judgements of the Appeal Court have been published for yearshttp://www.bailii.org/ and any layman even can access hundreds, probably thousands, of other judgements already available. Made available because British law is based on using latest precedents (judgements) to argue a case. But more important, secondly, as can be ascertained from those judgements already published, the bench are nowadays expert at spin – they have become masters at describing the injustices they lord over in such a way that the system (or the people who work in the system of course) is almost always seen as some innocent bystander. When exactly the opposite is almost always the case: wrong thinking, bad practice, and vested interest behaviour, is at the root of almost all injustices in the family justice system. More judgements available for us to read: even more pro-system propaganda.

Camilla Cavendish of the Times recently received the Paul Foot award. Paul Foot was one of the most highly renowned investigative journalists.

Camilla implies that she has been a driving force in the “campaign” for court openness. Yet exactly how does she justify her supposed authority on this issue when she can write to me as she did on 30th October 2008 saying:

“I'm not clear what you mean when you say that "media coverage of frequent extreme injustice in the family courts has recently increased due only to the fact that identities of parents, and by association their children, are now routinely revealed". This is simply not true in the case of The Times. Which parents are you talking about beyond Louise Mason and the Websters”

She wrote the above when I emailed her a copy of a letter I was trying then to get published in the Times (note 10) for her to have a look at. I cannot argue with her comment that “This is simply not true in the case of The Times” but only because I don’t have the resources at the moment to research a rejoinder. However this shows some extremely tunnelled vision. Times-narcissism. She implies few identities have been publicly revealed when the opposite is so. Things have quite dramatically changed over the last few years.

Open justice, the campaign started by DR Michael Pelling in the 90’s, is an issue for many, not just the Times. And many have dipped their toes in. And the nub of the issue, or at any rate the one I’m harping on about, is extremely simple: Clayton started a flood of personal stories going out into the media. And they have been prominent stories. A full page or two at a time in most of the national newspapers now and again. Books such as Mat O’Connor’s book on his Fathers4justice where many many parents whose children are the subject of current proceedings are named and described; and plenty of TV – hours and hours of local television, especially, on the personal stories of parents complaining about injustice. Camilla implies that it is not relevant. In fact my reading of her words is that she hasn’t even bothered to keep abreast of the material coming out that is fundamentally important in her own analysis of a subject for which her coverage receives this highest of press awards. She should hand it back.

***

In the CAFCASS conference (which I attended) in Nov 06 on Court Openness (all the great and good of family law present) Nicholas Crichton, a well known judge, pointed out that in any event family court cases were hard to report on because much of the evidence was dealt with as a paperwork exercise – often not even in the courtroom! What use the odd agency hack sitting in the press gallery (flitting between 4 or 5 ongoing cases in adjacent courts as his boss will of course require). It will still be illegal to share that paperwork with the media or display it to the court of public opinion.

A further real problem is that journalism is moving forward from the old days of staff journalists moving here and there to follow a story. The developments are twofold: Firstly, in respect of traditional media organisations, almost all no longer have the budget/manpower to assign individual journalists to follow individual stories in person – except regarding the most exceptional stories. Most journalism is done by shifts of junior (cheap) employees engaged in web research, and email and telephone clarification. The very fact that victims of family court injustice are prohibited from revealing their identities – certainly in public, and potentially even via other normal methods of communication such as email, means that they are then severely restricted in respect of flagging up any story that a newspaper or other media organisation might pick up on.

The norm now for almost anyone who does anything vaguely “newsworthy” is to put up a statement on their website or blog. But the fact that both – websites and blogs, are almost always completely traceable to their owner or author, means that the family court injustice victim is denied a place in the quite normal “demos”. They are certainly unable to put their own material out in their own name.

Secondly, though the people who this piece is mainly intended at, the traditional media, might dislike it, it is well known that reporting is gradually moving over to the realm of the citizen journalist. The blog, the weblog.. Etc.. Doubtless in a very short time we will all have our own personal TV station. Again, journalism, access to it and participating in whatever its new form, will be almost completely out of bounds to the legally unidentifiable. It is difficult, and certainly extremely inconveniencing, to do anything on the internet anonymously. Exactly what Mr Straw I bet is well aware of.

The nett result of this complex and rapidly developing reality – the new media, new “societies” and ways of participating in the “demos”, and attempts at gagging the many victims of injustice in the Family Courts will simply be that more and more people will be at risk of being carted off to jail. With more and more newspapers in and out of court every other day trying to argue to keep their currently less fettered position. A mess.

Pandora’s box was opened – the human faces started to tell their human tales of loss and tragedy. I hope that it stays open. But with Mr Straw’s new laws thousands and thousands of otherwise law-abiding citizens will be forever walking on very thin legal ice.

Penultimately, It should I hope be obvious, but although it can be fun and has also various well known side effects – not all good as is well known – yes it does go to your head if you aren’t used to it, but I’ll state the obvious: none of us court publicity. Pre 2003 I was about as quiet and private a person as can be imagined – living well away from anyone, up in the hills of the Marches. Now there are hundreds of webpages echoing stories that I myself have at times even solicited.

We do not seek publicity for publicity’s sake. It is only to show up a failing system that no one ever seems to be able to benefit from - except those who get their wage checks out of it. Lifting the veil is an emergency measure (time limit the statute!). Einstein wrote that the definition of madness is to keep doing the same thing and expect a different outcome. The establishment which seeks to continue the current system we have is mad. Let everything be seen, assessed, analysed. Then we might get the true support that we need to deal with the problem at source. And even if it goes wrong sometimes for a few people well that is only a lesser evil compared to the greater evil of the present system that quite simply no one can claim works properly.

And finally, it has always been known that an important aspect of the “justice” system – maybe the most important purpose, is for examples to be made of individuals so that the rest of society takes note. What example is the “a mother who cannot be named due to legal reasons was given a prison sentence today for flouting a court order to make her children available to their father….” Or the like. Who can empathise or relate to the unnamed? A very fundamental principle of the justice system breaks down.

Justice is one part of the political process; even judges politick. Judges are even expected to take some account with their interventions of “public opinion”. Judges are not entirely removed from the demos. In fact it is interesting to note how quite clearly some judges have been quite definitely shifted to acting more fairly by the Fathers4justice awareness campaign. Though sadly not all and only at a snail’s pace. In other words even in the family court, at times politics is alive and well. In which case, just as with any other aspect of society, both sides should be allowed to freely participate in the polis with all the tools normally available to them in a democracy. And surely the most powerful tool of all is by using the media for whatever ends. Just as Lord Justice Wall clearly enjoys so much. Again the traditional modus operandi is via taking forward a campaign in person. How many “campaigns” are ever going to see the light of day launched by the disembodied “Man who cannot be named for legal reasons………”?

And back to journalists: “campaigns”, stories, all of that. Yes nowadays we all produce endless press releases. Got a story, write a press release. Write one anyway even if you haven’t. There are I believe computer programs to spout them out to thousands of email addresses quick-fire. Of course you don’t read them. In any event there is only enough hours in the day………

As I myself know full well, even when there is plenty on file about someone almost all journalists come in with: “ok lets start from the beginning – a little about who you are please………….” Your personal story in your own words.

A summing up – or rather logical conclusion. There is no evidence that disclosing identities of parents dragged through the family justice system is harmful. To anyone. (It seems to be some imagined concept that arose in the mind of some Whitehall Wonk in the 80’s or early 90’s for no particular reason – there was no campaign or legal case that stated anonymity must come in to protect harm being done). Clayton sought to clarify what can be revealed after a case has finished.

Following on – what any year 4 would know as logical, as family courts do not have juries to sway, there should also be no restrictions, other than in extreme circumstances, on any reporting during or before a case is going through the courts.

If there is “harm” to children in these matters being written about then go to the root of that harm – design a better system. Which will come about far more quickly if the public (including policy makers and legislators) are allowed to see for themselves the reality – warts and all, of the present system. Which means not only stop all restrictions unless there are exceptional circumstances, but also repeal legislation that prevents evidence being shown or even discussed.

Please scroll to the end for information about what you can do to help.

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Notes

Note 1. In an important hearing in the House of Lords in 2005 {legal ref: 2005 1 AC Re S 593 – 609 } Lord Steyn said at para 34 of the judgement: "Thirdly it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be very much a disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."

Note 2. The perfect example: Blunkett v. Quinn. The media reported this in violation of s.97 of the Children’s act - as the proceedings were still ongoing, this law categorically prohibits all reference in public to parties to custody proceedings, but the media got away with it. They probably won't be allowed to do that under the proposed more stringent anonymity law (even when the proceedings are concluded, as Clayton v. Clayton is going to be statutorily reversed) - but are the media really happy with not being able any longer to report a Blunkett type case? The new law will obviously be loved by politicians and celebrities as it will be impossible any more to report their dubious deeds so far as involving Fam law matters, except in an absurd anonymised non-identifying form which would have no news interest ("Somewhere somewhen a politician whom we cannot name shagged a woman whom we cannot name and who had a child whom we cannot name and has taken proceedings for contact in a court we cannot name before a judge we cannot name with experts we cannot name doing reports....").

Note 3. In analysing this subject it must be factored in that Family Justice is arguably different from other legal processes for at least two important reasons:

  1. The individuals working in family justice – Solicitors, barristers and judges, are far more incestuous a bunch than in other areas of law. There is little movement in and out of the field. Promotion is almost always up through their own ranks. In criminal law there are sometimes applications that a judge “recuse” him or herself – a procedure where if a judge has some previous association with a party to a case he passes the case to another judge. There are rarely any applications for recusing in family law as the web of connections is very complex.

  2. Perhaps more importantly, when a “hard case” comes up – a scenario that is quite obviously going to lead to years of difficult work getting one parent to comply with the accepted ideal that children should have plenty of access to both, or when there are very emotive charges laid but clearly without compelling evidence (a pretty common affair), or where the authorities are taking a line regarding forced adoption when the facts are clearly in dispute by the defendant, such cases still start at the level of the lowest courts overseen by the lowest level of judge – magistrates or District judges. Such judges never take any early radical remedial action. The kind of remedial action that the Ministry of Justice has itself pinpointed as essential (Early Interventions). And they almost always fail to deal with legal matters that arise quickly (such as there being a need for a proper hearing to ascertain facts) in a way that is in following with latest legal practice. In other words rarely know their own rules. Thus a “hard case” – one quite evidently that has a degree of intractability, will need to be moved up through the system – by involved legal manoeuvre, such as appeal or technical applications. Which is expensive, sometimes very difficult, and for parents on legal aid nearly always impossible as the Legal Aid board are very obstructive when it comes to funding anything out of the ordinary. So by definition the “hard case” has an inbuilt initial delay – usually at least 6 months – often a year or more, before there is any chance that it will go before a judge who is prepared to act proactively to enforce or encourage justice – the rights of children and parents to a family life (as guaranteed by the ECHR). By which time the damage is done. The new status quo is in. The parent who has lost their child a wreck. This is unlike criminal or other proceedings where “hard cases” go straight up to the appropriate court level (they are “sifted” at the outset – depending on the severity of sentence available if guilt is proven: routed quickly up to either Magistrates, Crown Court, or the most important cases to the Old Bailey). This situation is particularly bad outside the major cities – London and other large cities have dedicated courts with easier access to more senior judges who will sometimes act proactively early on whereas provincial courts have more inbuilt obstacles to moving a hard case quickly to a proactive more senior judge.

 

Note 4

http://www.telegraph.co.uk/news/uknews/1582026/Heather-Mills-and-Paul-McCartney-'Waterfall'.html

Birgit: Google “Birgit Cunningham” for references.

Note 5. However, legal Aid itself is one of the key problems in this dysfunctional system – the granting of legal aid to disgruntled ex partners – usually on state benefits (often by choice in order to claim Legal Aid) fuels litigation.

Note 6. In the great majority of court cases where from the outset even a judge accepts father’s position that he is a reasonable, ordinary, relatively law-abiding person and that he had a full life with his child(ren) before his ex partner began manoeuvres to obstruct, there are usually a succession of court orders that, usually painfully slowly – over many months, build back up the time he will spend with his child – for example he may given an Order to be allowed to see the child(ren) once a week at a contact centre for an hour. (I was given this “option” by a judge in April 2004 – I stood my ground and said “NO, only a full resumption of previous family life is acceptable to me – I demand a trial NOW” – all advised me just to accept the judge’s pitiful offer and it would work against me if I did not. A few weeks later I forced a trial and won the argument). But what is implicit in these Orders for contact with children is that outside the allotted times a parent is de facto prevented from seeing them. (orders usually contain a codicil that the parents can override the allocations if they mutually agree to do so, but this never happens in practice as the parents have become pitted against one another in the wrongly adversarial setting of a court case). In short, de facto, the court order is just as much an order that, usually, a father will not see his child(ren) for the great majority of the time. At pains of a lengthy stay at Her majesty’s Pleasure should he not comply. And remember This is almost always before there has been any form of Trial; before any “finding of fact”. Guilty until proven innocent.

And when eventually those “trials” – known as the “Final Hearing”, can be scheduled – usually at least 9 months after the father first goes to court to try to get back his family life, but often enough after a much longer delay, very rarely is there ever found to be any reason in law why he is not an adequate parent – only in the smallest fraction of trials is it ever conclusively established, beyond any reasonable doubt, that the father is in any way some potential real threat to a child or the mother to such an extent that he must not be allowed ordinary family life with his children - that he has either broken law that protects a child from harm (surely the only reason society can countenance that he should be prevented seeing them and having a full a life as circumstances allow with them) or is quite likely to if he had his children living with him some of the time.

Note 7. Pelling v. Bruce-Williams

Note 8. Michael Pelling’s analaysis is that section.97 of the Children’s Act (covering the suppression of identities) was ruled not to apply to the Court of Appeal, so the new law will have the effect of imposing a new beefed up s.97 (more backward legal restrictions) on the Court of Appeal.

Note 9. Consider also effect of proposals in cases where children not involved or only peripherally (e.g ancillary relief, Pt.IV Fam Law Act 1996)

Note 10. A letter I drafted in October 08 hoping The Times would publish – they didn’t.

Jack Straw's proposals soon to be announced on opening up the family courts to media but at the same time enforcing blanket anonymity (reported the Times 19th Oct).

Until 2006 anyone who had suffered injustice in the family court was de facto gagged as the law was completely confused. Media lawyers would always advise editors "don't go there, too risky".

Media coverage of frequent extreme injustice in the family courts has recently increased due only to the fact that identities of parents, and by association their children, are now routinely revealed. Albeit only when cases end which means they are still gagged for the years a case can often take to complete. Media usually avoid stories where they cannot describe the people involved. Anonymous victims make dull copy.

Mr Straw's plans take us straight back to square one - this time the firmest possible de jure gagging: he knows full well that the first rule of journalism is "who".

Prevention of "harm" to children is the reason given for this legislation. Surely the greater harm to the greater number is to the thousands of children up and down the country today who have the horrible anguish of not knowing when they will next see a beloved parent, be it a father usually or less frequently mother, removed from them by the, at its best dysfunctional family justice system, at its worst, den of corrupt vested interests.. Or worse, what of those children wrongly stolen into adoption never to see their parents again? If a few suffer embarrassment to allow all victims of these many daily injustices to speak out fully is that a price not worth paying? 

Mr Justice Munby rightly said in 2005 that removing a parent from a child was the ultimate penalty a State can do to a citizen (we must assume parent and child) as we no longer have capital punishment.

 

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Support / campaigning / what you can do to help.

6 Jan 09

Yes, Money, but also an invitation for anyone to get involved.

In fact what I don’t want is more of the same campaigning by those with a rightful grudge against the system. With the greatest of respect to them too many are exhausted and damaged by their own personal fights. I would far rather those knowledgeable of how the present (and past) government have been rapidly attacking civil liberties to take note and feed ideas and support. Anyone who cares about a free press and fundamental freedom of speech. Anyone who believes in The Voltaireian proposition: We will disagree profoundly with what you say but defend to the death your right to say it. Anyone who has huge problems with Harriet Harmon for example (I’m a feminist as the most important person in my life is a certain young female, but there is something about Harriet that just gets it all wrong – is at the root of all this mess).

Shoot me down, as I’m sure some will try to, for trying to be some pseudo intellectual when actually I’m not so smart and my attempts come over as purely pretentious, but in my bones I feel that there is only one way this can all go in the long run which is sooner or later some of the people who make a difference in our society – call them the “establishment”, will one day realise that there is a huge intellectual incongruity to all this and might one day start to ask the right questions. We can’t go on forever running our society to the lowest common denominator. And we won’t forever be the nation of bureaucratic control freaks that we have become. Things might change. The US has gone in one fell swoop from a huckster cowboy presidente to voting in someone who is well known to be an intellectual – has even authored intellectual tomes in his past…………

I want intellectuals interested in this. Actual or wannabe. I want anyone who thinks that they are on the right side of the Social Justice argument to give it all a long hard think. It’s sexy to go on a march in support of Palestinians being battered. It’s not as sexy pondering this one but it is something that affects a lot of people – many middle class at that, on your own doorstep. It’s an issue that relates strongly to popularist issues but at the same time, whilst most ordinary not-too-educated people I’ve ever chatted about it to can see right through the whole thing, it is intellectually (and “legally”) just challenging enough that it will have to be the thinking man and woman who must take it forward now.

Nevertheless, can there be any other issue, except death and taxes, which so many are affected by – millions are subjected to family justice every decade, and it is well known that there is probably a disproportionate number who are educated and middle class amongst them. Almost everyone has someone within their inner circle who may be affected at one time or another by this system. The stories that we are seeing – the faces we see, are perhaps at the extreme end, and perhaps one where there is a disproportionate amount of alleged violence or abuse being described. But the principles of the current family justice system apply to the huge majority of un-sensational cases as well. Your friends; maybe you one day.

I was recently talking to a mother I know about the point of the Clayton case. I was helping her out with a custody matter potentially going to court. She is about as “conservative” a person imaginable, comfortable, completely cushioned from any unpleasantness, educated, fun-loving, private, but a pillar of her private community, in other words quite ordinary middle class. There is no way it will happen she is assured, however just thinking about the smallest possibility that a court might try to interfere with her relationship with her kids (why she contacted me in the first place) her reaction was “of course I would be screaming out from every available platform about this” And she as much as screamed that response to me

At the same time I learnt very early on that attacking the establishment must be done at a very personal level. Challenge each one in turn to take personal responsibility for whatever Whitehall line they are parroting. Challenge each one in person for what they fail to do. Fear motivates much of what the human being does or does not do. The last few years has, I hope, just seen the start of the story of this sad chapter being described – names named. Those who have personally participated in maintaining the status quo should perhaps fear posterity…………..think of the movies, even academic tomes, 50 years on………there are many many more individual stories to tell. Then we might start moving on to others who’s job was to help, or at least take note, and did little but hinder.

Regarding what we can do many say to me it is all a done deal: Straw will have his way. I don’t think so. I’ve never heard anyone angry with more openness; most do understand that we need to get this issue properly aired; most do understand the basic principles of Freedom of Speech.

One way or another I just know that there will be folk squirming who are connected with this legislation. I can even feel Frances Gibb of The times (legal editor) squirming when her writing (on “transparency”) fails to be as transparent as it should be about what is really the plan. Doubtless pressured into complicity by some manager or other who is too close to Legal powers that be. My feeling is that one slightly stronger puff by a few of the right people and the whole house of cards comes tumbling down.

Personal story

I might have several important legal cases that I, and Esti my daughter, know very well have benefited hundreds or even thousands of people facing the family justice system, but I try not to make this too much about “me”. I am writing and campaigning far more about what I know happens to other parents than what happened in my own legal cases. In fact, relative to what happens to many in the family courts, one of the few meaningful “wrongs” done to me, the most starkly immoral act, was that a BBC journalist handed to a legal opponent a piece of correspondence that became the catalyst for the important and much welcomed Clayton case on Freedom of Speech. Maybe I knew that particular journalist was the one most likely to be in cohorts with my opponents and maybe she received quite different material than others……. (one for the memoirs). So I can’t complain – in latter years I’ve had quite a bit of fun with all this.

But much of what I know doesn’t even come from other campaigning sources, it is seen with my own eyes as I try to help parents in their own court cases as a Lay legal Advisor. It is for them that I’m still fighting. Even if there is one left, living the daily the nightmares I had in 2003 that I would never see my beloved daughter again, I’ll keep fighting.

One reason I try to deflect from myself is that my personal journey is actually very difficult to explain in simple terms. And many people assume from what they encounter here and there scattered over the web is that I have a sob-sob story.

The fact is that quite the reverse is so: I am the luckiest guy alive. I often say that I would not have had the last five or six years any other way. I not only have what is by far the most important thing to me which is about the most secure shared parenting that anyone has ever had after a legal case (for a range of subtle reasons), but also my journey over the last six years – since I first entered a family lawyers office, (but not because of any positive experience with a family lawyer!) has been on balance a journey that has caused me to become the person I always hoped I would but had no idea how to.

Against all the odds I have the thing no one can take away which is years – 9 out of the last 10, of shared love and great memories of a wonderfully happy life with Esti. She is now 10 and a very grown up 10. Doing brilliantly in school and in other areas of her life. And has a brilliantly lethal sense of humour. She’s off into her own future now. She too will never forget the joy we have shared. So they cannot ever now take that away from us.

And without writing a book I cannot begin to prove that much of the really awful crap that I have had to endure to secure that life with her, then latterly legal advances to help others, and yes loads of crap even from supposedly my own “side”, has caused me to be a much happier, joyful, and more contented person than I ever was. And without the unpleasant stuff early on it would not have turned out that way. I must be in a very small minority who can safely say that even though 6 years ago I was a quiet, very proud parent, completely law abiding, relatively successful, Guardian Reading pretty middle class/nice person, with no black clouds over my life – no problematical behaviour, no demons, no health problems – physical or mental, that unless I had done 6 months very hard jail time I probably would not even be alive today. Never mind happy. It is the one thing that saved me from the doom of losing the only thing I cared for, my daughter.

Without the support –from far and wide, I found upon being wrongly treated so extremely, and without the focus that time gave me, I would simply never have been able to deal with the nightmare of finding in 2003 a family justice system that was going to relegate me to weekend-only-dad. (On no evidence of course!). And had I been so relegated then there is no doubt I would have found it impossible to ever again know true happiness and joy. My heart would have been torn from me. I would have died of sadness by now.

All strange but true. Even the severity – no move to an open prison, 6 months really hard time, was essential. Had it been a shorter and more comfortable stay the support I needed to give me the confidence to fight back would not have materialised. Thanks Judge Curran!

Nevertheless there are some practicalities. This is a “campaign”. A political movement. Certainly a legal campaign of sorts. And it is all highly political. So I have to carry on with a bit of politics.

In 2003 and 2004 I had to apply myself full time to achieving the shared residence that I had of Esti – maintaining it actually as she already lived between homes before a court case started. (and my alleged criminal act – the majority of judges I have since encountered have used that word, was only a very minor part of the case, dealt with very quickly – my case, as for so many others was about systematic bias against fathers).

That is all my look-out. My previously profitable bookselling business collapsed, with considerable business debts. “Full time” meant just that – I have a pile of paperwork relating to the case up to my ceiling. So in 04 or 05 not a penny could possibly be earned. Then in 06 I had to spend most of the year dealing with taking forward the Clayton test case on ending secrecy. And since then – until mid last year, I have been almost full time lobbying, politicking, and supporting others with similar issues. I’ve also needed periods of recuperation from complete exhaustion.

So my position is that for half a decade I have existed on the thin air of state benefits and latterly the odd hundred quid or so from people who I help in court cases. Once I asked for and was given by John Hemming MP £100 to pay my as usual just-about-to-be-cut-off phone bill. Ditto FNF once chipped in. Otherwise no one has ever put a penny into my pot. In 04 I put on my then website (which sometimes remerges but not due to me – I ran out of money to pay for it to be hosted) that I needed to campaign for legal fees but no one answered.

This time I think people should be able to see that what has been seen lately as a national political issue – MPs have even recently said for the first time to me “there are now votes family justice”, is moving forward, and it is coming to a head. This is the Grand Finale. Openness or lack of is one of the fundamental issues in the reform that almost everyone understands is essential.

Yet again over the last few months I have put aside my regular part time work (the odd court case I help in and a bit of part-time gardening and maintenance) and focused on largely unpaid legal work and completely unpaid campaigning. I haven’t earned a penny for 6 weeks. Again behind with the rent.

So I’ve paid my dues - not to society, I owed society nothing, but I have purchased my own “spurs” by paying with five years of fight – usually in the most tedious imaginable manner – endlessly repetitive written lobbying. Even telling the story to the media becomes a chore as every time you have to start the whole damn thing right from scratch – even explaining the evil of the system. Most journalists have not the first idea.

I’m ready for the last battle. Am in fine form. Years of living on fresh air – painstakingly emptying and re-using the same hoover bag as a new pack cannot be afforded, sticking together with glue and rubber bands one battered old vehicle or another, etc., etc., has all toughened me up. In fact all that is very good for you. But the one drawback is it is all so so time consuming –the normal regular things we must all do to present a reasonably civilised front, when in abject poverty, take up much much more time. For example I spend probably 10 hours a week just nursing along my pitifully old PC that nowadays crashes at least twice a week.

I need to be freed of this for the last round.

Support

17th February 2009
Facebook campaign has been launched.

See the Facebook group:

"Stop Jack Straw's Gagging Order"

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I hope to spend a few months pretty much full time on this last lobby. And I hope I won’t be alone. But I can’t participate myself unless I see some proper support. And that includes money.

I need to travel here and there to lobby, garner real support, and share strategy – the phone or email are completely inadequate. I need a lot more letters out and emails dealt with more efficiently and quickly. I need freedom for a while from having to spend my fairly limited time working for the £10/hr I need to make in that limited time just to eat and keep a roof over. (Esti lives with me half the time and she has a very full life that needs parent involved as at least taxi, but more often still in there in some minor capacity).

Campaigning is famously a financial black hole but all I can say is that I run such a tight ship and am so used to living life to a very carefully planned schedule – so as to use wisely for Esti anything in the purse, that nothing in my life is ever wasted. I’m a super efficient operator. Have to be.

So put something in if you can! Small or large. Even a few quid would pay for phone calls or a couple of stamps. Anonymous or to be given public recognition. Whatever you wish. Need a receipt ? – that can be done. (I’m very efficient at admin and am registered self employed).

Or perhaps you have a reasonably modern PC or printer to donate? Even an unused motor that has a few months of MOT on it? My current is really just about dead. Or perhaps you are time-poor but have something of value that is unused which could be donated and I’ll spend the time to turn it into cash – the aggro of putting it up on Ebay.

Or I’m open to any other ideas. Fact is yet again I’m not going to have a holiday again this year – Esti is becoming aware others do have proper hols! So I’m getting a bit on the desperate side……..Anything to help me be able to lobby and work on this issue and just have some semblance of a normal life. Perhaps your business can afford a new employee who is tasked to go and win his own campaign on court secrecy?

On the pay back the only thing I may have going for me is that I will get a book out of all this one day. I was offered a deal (with no advance) in 06 but was just utterly wasted from the fight, needed badly to get back to a bit of normal life and focus properly on my life with Esti, and since then just haven’t had the time or energy. The need to work out a bit of a future and work on some of the cases people have brought to me have not allowed me spare energy. But it will come. In fact the ending wasn’t there yet. I think the day last year Esti was put on The Gifted and Talented register at her school was probably the ending I was waiting for. It is my one remaining real ambition. Its half written anyway.

If I can find someone interested I would consider sharing some of the rights to the story with something in advance. The story I want to tell is not another boring fight-the-courts story, or even how-i-won-the-legal-battle, though I should do a bit on that as I fought in a particular way that others might like to try and replicate, it is about the day-to-day life Esti and I have had – going back 9 or 10 years, and what it is like to find joy in even the smallest thing even when the establishment is out to destroy it all. Defiance. And lots of love of course.

If enough people expressed an interest then I may set up some kind of pre-order scheme. I can just about string a sentence together. I quite assure I have a very interesting tale or two to tell. If you have stuck with me this far then I must be discussing issues that you find of some interest, so register that interest to simonclayton@post.com and if enough do then I will do just that – set up a pre-order scheme: incorporate a company and sell interested parties a contract to provide the story in book form within the next year for a special advanced purchase discount price of, say, £5 or thereabouts.

And just in case anyone has the slightest knowledge of internet cashing-in, I am not in any way formally associated with the owners of this or any other site that my words appear on. Have never shared a penny of any advertising or other revenue generated by any website. And wouldn’t know how to generate my own through the net. And have got far more important things to do than work out how to.

Donations please – you can just go to any bank and ask for a paying in slip and enter my account details, or make a net banking direct payment:

Account name: MR S A CLAYTON

sort code 72-58-26

account number = 206-028511-39

BUT for electronic payments – i.e. to pay me from an internet banking account, use ONLY the following account number format: 60285117. It may be that some paying in slips also restrict you to 8 numbers in the account number section in which case again use only this format 60285117

My bank account has had extremely little it other than normal lone parent state payments for the last 5 years and am more than happy to show my statements to anyone enquiring – in fact may even put them online when I have the time.

Media people in particular – many of you have made money from the family justice world over the last few years – someone must be buying or you wouldn’t be printing or broadcasting. And God knows I’ve acted as never-paid “consultant” to so many that say they are trying to write about the whole palaver. Can any of you find some way of helping out? Journalism will surely suffer if Mr Straw has his way.

I’m sorry the one thing I cannot do is give my address out. Unless you become known to me. The bad years (03-4) when it all destroyed me nearly and completely destroyed my business, have left me with loads of unpaid debts. Did you know that even to go bankrupt – the route I would love to have been able to take out in 04, costs around £500 just to apply for!! Needless to say I haven’t had a spare £100 never mind 500 for a long time…………..so there are a fair few debt collectors out there who would deluge me if my (new - I had to move) address is easily available.

If you can’t or don’t wish to help financially then still get in touch. Ideas, moral support, useful stories. Prominent figures joining in with me. All welcome. I cannot start any kind of protest group or get too sidetracked though as I don’t have the time with focusing solely on this issue which is all my time allows. That said there should be some properly organised “committee” of professional people who are lobbying in an organised fashion against Straw. A single issue lobby on preventing the reversing of Clayton.

Also any support from anyone who can offer Promotional/ Webmaster/ Lobbying facilities is of course also welcome.

© Simon Clayton Jan 2009

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