8 Jan 09
Jack Straw’s statement, 16th December
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
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
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.
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
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.
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
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
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
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
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
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
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?
dysfunctionality is perfectly described by Mark Harris’ story:
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
Under Jack Straw’s new proposals (to reverse Clayton)
as announced at:
following would almost certainly become illegal:
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
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
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
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
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
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
, 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
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:
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
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:
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
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
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 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
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:
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”
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.
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,
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.
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
years – http://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
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
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.
Birgit: Google “Birgit
Cunningham” for references.
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.
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.
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.
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
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
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.