Tag Archives: ABE interviews

The woeful state of our debate about the family courts Part VII: Barbara Hewson

This is a post by Sarah Phillimore

The fact that this is number seven in a series of posts about the dangerous debasement of public discussion about the family justice system and issues of child protection, should be a clue that I think we are in a very parlous state indeed.

What makes this particular post different from the other six however is the response of the author whose views I criticised – Barbara Hewson. That response – in the space of about 12 hours – was to make a complaint to my Chambers, threaten to complain about me to the Bar Standards Board and send me numerous aggressive tweets in the small hours of Friday morning.

EDIT 30th May  – apparently Ms Hewson is now contemplating action for defamation and has requested that anyone who retweeted this post ‘unretweet it’. Given that my explicit assertion – she talks dangerous nonsense – is true in my honest opinion, it will not be merely my duty but my pleasure to defend this post in open court.

This is worrying on a number of levels, not simply because Ms Hewson feels it is appropriate to deal with dissent in such an aggressive way, all the while proclaiming her status as ‘victim’ in the face of my vicious harassment i.e. my refusal to accept everything she said as true. The delicious irony of that will not be lost on anyone familiar with Ms Hewson’s work in debunking false allegations of sexual abuse and pouring scorn on those who would play the ‘victim card’.

But it is more worrying than simply being annoying for me, because it confirms and underscores what I have long suspected – those with the loudest voices in the ‘debate’ about the Evil Secret Corrupt Family Court have no real interest in promoting reform and change. They gain their validation and some excitement from being those who ‘expose’ the corruption and who ‘speak truth to power’. To sit down and calmly discuss what we could actually do to make the system work better is of no interest to them at all – because its not remotely sexy or exciting, just extremely necessary.

The family courts make a mockery of justice?

Anyway. Assuming my website isn’t suddenly taken down after further complaints from Ms Hewson, here is my discussion of her recent post ‘the family courts make a mockery of justice’  which appeared in Spiked On-line on May 25th 2016.

We are off to a blistering start in the first paragraph:

The UK Department for Education last week published research into rates of reporting child abuse. Feminists claimed that the fact that a third of those interviewed said they would not report suspicions of abuse amounted to ‘victim-blaming’.

The Department of Education does NOT cover the ‘UK’ and Ms Hewson is unable to identify the myraid ‘feminists’ who spoke of victim blaming but it seems that she is actually referring to Isabelle Trowler – who may well be a feminist (I have no idea and can’t see the relevance either way) but who is more usefully identified as the Chief Social Worker for England.

Maybe it gets better. Let’s read on.

A ruling from the Court of Appeal on 19 May in a family case shows just how skewed the system has become when dealing with accusations of abuse. The case is called Re E (a child) and it makes depressing reading.

First lets be clear. She is absolutely right that E (A Child) [2016] EWCA Civ 473 makes for extremely depressing reading. There is no doubt that the case was extremely poorly managed and crucial principles ignored or misunderstood. The police interviews of the children were badly handled and the court did not give sufficient thought to whether or not the children should be cross examined. The allegations of abuse they had made and which were found proved at first instance were overturned by the Court of Appeal.

The reasons for the appeal succeeding were summarised at para 98 of the judgment:

  • The judgment wholly fails to acknowledge and then analyse the numerous and substantial deviations from good or acceptable practice which are evident at every stage of the police interaction with the three complainant children, both during the ABE interviews and by undertaking the ‘fast-track’ interviews thereafter.
  • The application for the police officer to be called to give oral evidence should not have been refused (unless, on investigation, it was impossible to call the officer at any stage and on any basis during the hearing).
  • The judge’s analysis of the children’s evidence is open to the valid criticisms made in support of the appeal. In particular the judge’s approach to, and use of, the inconsistencies within the evidence of the three children fell well short of what was required.
  • The judicial analysis of the formal and properly presented Re W application made by the appellant was so wholly inadequate and, in effect, simply was not undertaken. This, of itself, is an error of sufficient materiality to justify setting the fact finding decision aside.
  • A’s right under ECHR, Article 6 to a fair trial and his right to the protection of legal professional privilege were breached to a substantial degree.
  • The judge’s analysis of the evidence of what A had said, together with his presentation, when being invited to address sexual matters was both confused and inadequate. There is a real risk that every aspect of what is recorded by the social worker, guardian and key worker in October, November and December 2015 relates entirely to his complaint of abuse by two uncles five years earlier. The potential for that to be the case was not taken into account by the judge and, in any event, the judge wrongly conflated evidence about that past abuse with the entirely separate recent allegations at a number of stages in her judgment.

So no doubt that case was FUBAR. I have written myself about other instances of similar woeful failings. It’s not – sadly – a unique case.

But is Ms Hewson right to extrapolate from that and conclude that because one case was royally screwed, the entire system must therefore be rotten and that family courts routinely pay no regard to the law? She says 

This approach ignored a Supreme Court ruling from 2010, Re W, where the Supreme Court said that the question of whether a child should give evidence should be approached on a case-by-case basis. A blanket prohibition on children giving evidence was incompatible with the right to a fair trial. Baroness Hale stressed that focused questions, which put forward a different explanation for certain events, ‘may help the court to do justice between the parties’. That ruling went unheeded by the family courts.

This is remarkable, suggesting that the family courts operate a separate system of legal rules unaffected by fundamental legal principles, such as the right to a fair trial and the supremacy of judgements of the Supreme Court (the doctrine of legal precedent). It is perhaps not surprising that many ordinary people view the family courts as inherently unfair.

It was gently suggested to Ms Hewson on Twitter by those of us who do have experience in the family courts and are able to point to examples of good practice, that it is just not true to say that the entire family court system simply turns it back on the Supreme Court and ignores legal principles wholesale.

Ms Hewson’s response was to rely upon her 12 years of experience (which later expanded to 31 years) as all the evidence she needed that the system was rotten to the core and the fault was the ‘corruption and collusion’ of family lawyers.

This is clearly nonsense. As Napoleon said – never attribute to malice what can be explained by incompetence. That some cases go wrong does not mean one is entitled to conclude that the entire system is rotten and all the lawyers in it just collusive stooges.

And this nonsense matters, not merely because it is a barrister saying it. This nonsense takes root, infects people’s ability to understand and engage with the court process and provides a vicious cycle of withdrawal, lack of trust and disastrous consequences for the proper management of family cases.

This whole episode has been sad for me. I did at one time admire Ms Hewson, I thought her often brave and funny. She has said things that needed to be said. She is right to be wholly critical of what went wrong in the case of E (A Child). But her reaction to even the gentlest of criticism has demonstrated again and horribly clearly just how debased our current discussion about the family justice system really is.

And if she wants to keep on tweeting me in the early hours of the morning, she needs to realise that I also know how to take a screen shot.