Virtual Reality

In Moscow, a woman called the police, claiming she had been raped by a Pokémon character.[1]  For the uninitiated, these are imaginary cartoon figures in a children’s virtual reality game played on smart-phones.  She said that it had entered her bedroom at night and raped her in her sleep; when she woke, she found the huge character lying on top of her.  She jumped out of bed and it disappeared.

He husband didn’t believe her and said she needed to seek psychiatric help.  Her friend, Ivan Makarov, however, said that there were too many of these characters in her home and that her dog could sense them.  The woman booked an appointment with a psychiatrist.

Now, imagine that the woman had accused, not an imaginary cartoon character, but her husband of rape.  Imagine that her equally nutty friend, Ivan, had confirmed the allegation.  Imagine that the allegation was made in a jurisdiction, like ours, in which the police and social services operate a “believe the victim” policy.  It’s actually a rather more likely scenario.  Is there any way the husband could have escaped prosecution and conviction?

 

A daughter alleged that her father had raped her eight times over a six-year period.  The interview with the police conducted under the Achieving Best Evidence (ABE) guidelines reveals detailed descriptions of each assault and, in particular, accounts of how they made the girl’s body feel.  The allegations are particularly compelling and the father’s only response is to deny them.  It looks like an open-and-shut case.

A week before the trial, a barrister, Cathy McCulloch, is brought in to represent the father in court.  She reads the ABE interview and is struck – as no one else has been – by the “use of certain words, phrases and descriptions” which seem beyond the girl’s years.  This is a common indication that an allegation is false, but not always easy to prove.

Questioning the father, the barrister uncovers that the girl’s favourite book is Fifty Shades of Grey, an explicitly erotic novel; the father knows nothing about this book.  The instructing solicitor’s representative buys a copy of the book, reads it, and realises that there are far too many similarities between the book and the ABE interview for it to be coincidence.

In court, on the third day of the trial, the girl admits she had made the whole thing up, basing her allegations on Fifty Shades of Grey and other books, which she names.  McCulloch has ended the case after seven minutes of cross-examination.[2]

 

Father John Taylor had a dinner date with a twenty-eight-year-old woman after his marriage broke down and his Hungarian wife returned to Hungary with their children.  They had consensual sex.  The woman then went to the police and claimed Taylor had raped her; he was arrested.

Taylor’s life fell apart; he lost his job, and his health; he was shunned by parishioners, his car was vandalised three times, and he was denied contact with his children.  The case was eventually dropped when it was revealed that the woman had based her rape allegation on a description she’d read in a Martina Cole novel.[3]

 

These men were very lucky to be spared gaol sentences; many are not so lucky.  Father Taylor and the man identified only as WX had – or could afford – legal teams who were able to spot the flaws in the prosecution’s case.

It is here that my own interest is piqued: as an old English literature graduate, I am aware that the operation of the law often comes down to the careful, forensic examination of literary texts: witness statements, ABE interviews, etc.  A single word here or there can expose a liar and turn the course of a case.

I also have a more personal interest, as someone against whom false allegations have been made, initially in court, in order to thwart an application for contact, and later, to the police, in order to destroy my reputation and my career.

Ultimately, both failed (no thanks to the courts), but I am acutely aware that, even in the most balanced and fairest of systems, these cases often boil down to one person’s word against another’s.  If you have a friend like Ivan, it is then two people’s word against another’s.

But we don’t have the most balanced and fairest of systems.  We have a system in which there are two major flaws.  The first, as I identified in my last blog post, is the move towards “therapeutic jurisprudence”.  That is, a system of jurisprudence in which the aim is not to deliver justice, but to grant self-identified “victims” and “survivors” an opportunity to have their say and to achieve “closure” without their accounts being doubted or cross-examined.

The intentions behind this are often benign, aiming to encourage more genuine victims of rape and sexual abuse to come forward without fear of confronting their abusers in court, but it is achieved by gravely eroding or eliminating the traditional legal safeguards, such as the separation of powers between the judiciary and the executive, judicial independence and objectivity, the right to be presumed innocent until proven guilty, the right to due process, the right to be tried in public, the right to confront one’s accusers, the right to equality of arms, the right to consult an expert of one’s choice, and even the right to communicate in confidence with one’s own lawyers.

The result may be fewer perpetrators escaping justice, but there is also a huge rise in the number of false allegations and a commensurate fall in the ability of the innocent to defend themselves.  The presumption of innocence, the fundamental rock upon which the criminal law is founded, is stood on its head; the onus on the complainant to provide sufficient evidence to prove the accused guilty is inverted.

This is further enabled by the erosion of the legal presumption against the use of similar fact evidence by a series of cases and changes in legislation (DPP v P [1991] 2 AC 447 and R v H [1995] 1 AC 596 and the Criminal Justice Act 1988 and Criminal Justice and Public Order Act 1994).  Similar fact evidence, often acquired through police trawling expeditions, now substitutes the need to present solid, verifiable evidence to support the allegation of a crime.

Much of this change is less than benign, however, and has been enabled through the interference of politicians.

Tony Blair, for example, demonstrated his contempt for the falsely accused and the wrongly convicted in 2002, [4]

The biggest miscarriage of justice in today’s system [is] when the guilty walk away unpunished.

Helena Kennedy QC observed that in a single sentence he had—[5]

sought to overturn centuries of legal principle, a complete reversal of the approach to justice that every mature democracy in the world respects, whereby the conviction of an innocent man is deemed the greatest miscarriage of justice.

This, of course, was Blair’s point: to change the law so that a mere allegation would result in conviction without the tiresome necessity of proof – who could possibly object if it protected a child from abuse?

This is the danger the Independent Inquiry into Child Sexual Abuse (IICSA) now faces (under its fourth chairman).  Although it’s “believe the victim” focus is well-intentioned, it will inevitably identify innocent men – some aging, some dead – as the perpetrators of historic abuse.  The inquiry risks becoming bogged down in these cases – consider, for example, the determination of Lord Janner’s family to have his name removed from the inquiry – rather than identify positive ways of enhancing child protection in the future.

This brings us to the second huge failing of the system, which is a tendency to believe all men capable of abuse, but no women.  Why have all the people identified by Theresa May and her successor, Amber Rudd, as suitable to lead the IICSA been women?  How many women have there been amongst the thousands of accused named in the inquiries and police operations since this witch-hunt began?  Remember the words of May’s rival, Angela Leadsom?[6]

As an employer we’re not, let’s face it, most of us don’t employ men as nannies, most of us don’t.

Now you can call that sexist; I call that cautious and very sensible when you look at the stats.

Your odds are stacked against you if you employ a man.

We know paedophiles are attracted to working with children.

I’m sorry but they’re the facts.

This presumption that paedophiles can only be male is on the same intellectual level as Queen Victoria’s belief that women cannot be homosexual,[7] a belief reflected in our laws which have never sought to control the behaviour of lesbians.  It is a belief founded in blind prejudice: a determined resolve not to let the true “facts” intrude.

As I have said before, all the allegations on which the IICSA was founded have crumbled: the complainants have been exposed as liars and fantasists and the police lines of enquiry have been closed.  This leads the Inquiry floating in space, unsupported by anything other than these prejudices.  Alexis Jay must now keep this vast and growing edifice in the air.  She will not find it easy.

 

[1] Holmes, S. (2016, August 11). Woman tells police she was RAPED by a Pokemon Go character after she felt an ‘assault’… and the virtual reality game detected the creature in her bedroom. Daily Mail.

[2] McCulloch, C. (2016, August 05). Fifty Shades Incest Acquittal. Retrieved from http://www.stedmund.co.uk.

[3] The Telegraph. (2013, April 16). Crime novel inspired woman to falsely accuse priest of rape. The Telegraph.

[4] Blair, T. (2002, June 18). Full text of Tony Blair’s speech on reforming the criminal justice system. The Guardian.

[5] Kennedy, H. (2004, November 27). For Blair there is no such thing as legal principle. The Guardian.

[6] Sculthorpe, T. (2016, July 15). May urged to SACK Andrea Leadsom just a day after putting her in the Cabinet as it emerges she claimed it was ‘sensible’ not to have a male nanny in case he’s a paedophile. Daily Mail.

[7] Yes, I know this is actually a myth, invented by Australians in 1977, but I’m sure you can see the point I’m making.

How Operation Hydrant became Operation Hydra

False allegations have featured prominently in the media over the last few days.  Whether this is meaningful, and indicative of something in the air, or merely coincidental, remains to be seen.  Before I go further, I have enormous sympathy for the genuine victims of childhood sexual abuse; there are a number of such people in my family and their views have influenced my own.  This article isn’t about them – it’s about allegations which are false.  News items which have caught my attention include some truly awful stories which demonstrate what happens when people make false allegations; this has now received academic confirmation in a study into the effects of false allegations by the University of Oxford; finally, we have had the latest episode in the long-running farce that is the Independent Inquiry into Child Sexual Abuse (IICSA).

First, to make it clear what we are talking about, those true stories.  A year ago, a vulnerable teenager, Jay Cheshire, hanged himself following a false allegation of rape by a fellow teenager, despite the fact that she had retracted the allegation two weeks after making it.  Jay’s mother, Karin, had been at Jay’s hospital bed-side when his life support was turned off.  This year, on July 18th, unable to live without her beloved son, Karin Cheshire hanged herself.[1]  The girl who was the cause of this dreadful double tragedy, of course, remains anonymous, a privilege accorded those who make false allegations, but not to their victims.

The second story concerns former fire chief, David Bryant, who was sentenced to six years for allegedly raping fourteen-year-old Danny Day in the mid-1970s.  He and another fireman, now deceased, had allegedly raped Day over a pool table in the fire-station.  When the Attorney General complained the sentence was too lenient, the Court of Appeal increased it to eight-and-a-half years.

Bryant’s indomitable wife, Lynn, worked incessantly to prove her husband’s innocence, uncovering, for example, the fact that the pool table in question had not been bought until the 1990s.  However, it was only when Day overreached himself, claiming compensation for the ruin of a non-existent boxing career, that she was able to persuade a number of lawyers and investigators to work on the case pro bono and expose Day as a compulsive liar.  Bryant was eventually released on July 15th after serving three years of his sentence.[2]

The cases showed that the theoretical protections for the innocent – a jury of one’s peers, the presumption of innocence, the burden of proof on the accuser to prove their allegation, the Court of Appeal itself – had been entirely inadequate to prevent the conviction of an innocent man AGAINST WHOM THERE WAS NOT A SHRED OF CORROBORATIVE EVIDENCE.  It showed how willing both professionals and the public are to dispense with these safeguards when presented with lurid allegations of sexual impropriety.

Barrister Barbara Hewson blamed this on former Director of Public Prosecutiond Keir Starmer’s “believe the victim” ideology; a “narrative of victimology and vulnerability” had “encouraged a toxic band of opportunists, attention-seekers and fantasists, for whom the compensations of being a victim are impossible to resist”.  She called for “much more exacting standards” from the criminal justice system.[3]  To be fair to Starmer, he cannot take credit for “believe the victim” which has its origin in the “believe the child” movement of the 1980s.

In May, Oxford University published a report into the impact of false allegations.[4]  It noted that a combination of the “prevailing cultural discourse and consequent preconceptions about sexual predators and their alleged victims” and a belief that in the past allegations had not been taken sufficiently seriously had led to “the moral imperative not to ‘let down another victim’ or to leave a possible sex offender free to cause further harm” and an increased likelihood that innocent people would be “presumed or found guilty”.  The burden of proof had been reversed: “The risk now is that mistaken or dishonest allegations of child abuse or rape are more likely to be taken as true, unless there is objective evidence to invalidate the claim”.  In this culture, the risk of a miscarriage of justice is “unusually high”.

The report notes the exploitation by the police of a weakening of case law limiting the use of similar fact evidence to facts which were “strikingly similar”.  This followed the rulings by former Lord Chancellor, Lord Mackay, in DPP v P [1991] 2AC 447 and R v H [1995] 1 AC 596 which meant that henceforth the courts would presume similar allegations to be true, thus ensuring that unreliable and prejudicial evidence would regularly form the basis on which criminal proceedings were tried.[5]  In 1988 The Criminal Justice Act allowed conviction purely on the evidence of an alleged minor victim; corroboration was unnecessary.  The Criminal Justice and Public Order Act 1994 extended this to adult complainants.  Juries were obliged to accept a complainant’s testimony as fact, and the “beyond reasonable doubt” principle was jettisoned.  The onus was now on the defendant to prove his innocence.

These developments enabled the police to conduct “trawling” or “dip sampling” operations, contacting potential witnesses who had not yet been implicated; this was particularly applicable to allegations concerning residential schools and care homes.  Simultaneously, the police used personal injury solicitors to recruit witnesses using the lure of substantial compensation pay-outs, particularly targeting prisons where so many care home children end up.  It is almost impossible to gather dependable evidence by this means.  For genuine victims, financial compensation for sexual abuse is nothing short of prostitution.

The report revealed the enduring trauma, destroyed careers, damaged reputations, huge financial penalties, lost friendships, relationships and professional associations, damaged mental health, reasonable fears of further allegations.  Much anger is directed, not just at the accusers, but also at the employers, police and criminal justice system which enable false allegations and fail to protect the victims.  The researchers were shocked by the extent to which a false allegation can impact every aspect of a victim’s life; they observed that a quarter of school and college staff report being the victims of false allegations and that this drives good people out of the profession and deters others from joining: false allegations are a serious social problem and the dominant “believe the victim” discourse needs to be re-evaluated.

The Independent Inquiry was built on very shaky foundations.  To understand this story, we need to go back a few years to 3rd October 2012 and the broadcast of an ITV documentary, Exposure: The Other Side of Jimmy Savile, presented by moral crusading copper-turned-TV investigator Mark Williams-Thomas.  In the programme, a number of women claimed they had been assaulted by Jimmy Savile as teenagers; following the broadcast, more claimants came forward.

On the 9th October, the Metropolitan Police announced Operation Yewtree, to be run jointly by the Met and the NSPCC.  The alarming feature of the investigation was the pledge made by the police that they would unquestioningly believe whatever the “victims” told them.  With the media, MPs and charities like the NSPCC and NAPAC (National Association for People Abused in Childhood) jumping on the bandwagon, the only certainty was that allegations would increase.  Many, if not most, often more than fifty years old, were without evidence and could not be proven, despite the belief of the police that the sheer number, inflated by trawling exercises, was evidence enough.

Peter Spindler, the Metropolitan Police Commander who led the operation, clearly failed to comprehend the implication of the word “alleged” when he said,

We are dealing with alleged abuse on an unprecedented scale.  The profile of this operation has empowered a staggering number of victims to come forward to report the sexual exploitation which occurred during their childhood.[6]

Spindler had formerly been in charge of a Metropolitan child abuse team and had sent its members on an “satanic ritual abuse” awareness course run by self-proclaimed survivor, Lee Moore.[7]

The fact that Savile had died in 2011 meant the allegations against him would never be tested in court, allowing the investigators to give them greater credence than they would otherwise have merited.  Complainants were infantilised by introducing the principles of child welfare and “therapeutic jurisprudence” into criminal proceedings, under which the traditional legal safeguards were gravely eroded or eliminated, such as the separation of powers between the judiciary and the executive, judicial independence and objectivity, the right to be presumed innocent until proven guilty, the right to due process, the right to be tried in public, the right to confront one’s accusers, the right to equality of arms, the right to consult an expert of one’s choice, and even the right to communicate in confidence with one’s own lawyers.

The final joint report by the Met. and NSPCC in January 2013, Giving Victims a Voice, relied heavily on the sheer number of alleged victims – 589 – rather than on solid evidence, and treated every complainant as a victim, every allegation as evidence and every accusation as a crime,

Taken together their accounts paint a compelling picture of widespread sexual abuse by a predatory sex offender.  We are therefore referring to them as “victims’ rather than “complainants’ and are not presenting the evidence they have provided as unproven allegations.[8]

[My emphasis]  Unproven allegations, however, is what the evidence was.  Former editor of The Telegraph, Charles Moore, wrote, not in defence of Savile (“I believe that Jimmy Savile did horrible, criminal things to young people”), but in horror at the manner in which normal legal process had been subverted,

[The report] assumes that because allegations were made, the offences were committed.  It declares that 214 incidents have now been “formally recorded” as crimes.  It treats allegations as facts.  By doing so, it undermines justice.[9]

Operation Yewtree involved the arrests of a further eighteen men.  Freddie Starr, Jim Davidson, Jimmy Tarbuck, Paul Gambaccini, Cliff Richard, and others were released without charge (though Starr later lost a defamation case, held without a jury).  To date, the operation has uncovered only two genuine and relatively obscure paedophiles: Chris Denning, a former Radio One disc-jockey and Michael Salmon, a doctor at Stoke Mandeville.

The publicist, Max Clifford, was found guilty on eight of eleven charges and sentenced to eight years’ imprisonment.  The prosecution bragged that it gave “confidence to other victims” that a conviction could be secured after so long and with no corroborative evidence.[10]  Lacking corroboration, prosecutors relied again on the quantity of allegations to establish a pattern of behaviour.  The jury was never asked to find on the worst allegation, an assault on a twelve-year-old; they accepted only one allegation involving a fifteen-year-old, and his other “victims” were all adults, but that was enough to see him branded a predatory child sex offender by the tabloids.

Dave Lee Travis was found guilty of a single assault out of fourteen historic charges and received a suspended sentence but was left financially ruined.  His “victim”, a stand-up comedienne whose clothed breast he had allegedly touched, had joked about the incident in her act and admitted in a radio programme that she could not be sure whether the deed had been deliberate or accidental.  Her vivid victim impact statement was clearly written for her by lawyers.

Eighty-four-year-old Rolf Harris was found guilty on all twelve charges against him.  Again, no corroborative evidence was offered to support the allegations, and an examination of the counts makes disturbing reading.

Count one, for example, involved an allegation by a woman who claimed Harris had touched her inappropriately at a tiny community centre in Leigh Park, Hampshire, in 1969 when she was seven or eight.  An extensive trawl of local papers and council records several years either side of the date, and letter drops appealing for witnesses, provided no evidence whatsoever that Harris had ever been there.

It is improbable that any of the allegations against Harris, individually, would have persuaded a jury, but collectively they carried more weight, as each allegation supported its fellows and established a pattern of behaviour.  Further allegations were presented relating to incidents in Malta, Australia and New Zealand, but these had never come to court and had not been proven.  Had Harris been tried in Australia, where evidence of this kind is referred to as “evidence of tendency and coincidence”, it is likely there would have been four separate trials; the reason such practices are forbidden in some jurisdictions – and used to be in the UK – is that they gravely erode the presumption of innocence and the rule of law.

Yewtree was severely criticised, not least for allowing ideologically-driven pressure groups like the NSPCC (which wants the monopoly on what constitutes child abuse) and NAPAC (which wants to replace the NSPCC as the go-to organisation for child abuse) to influence the progress of a police investigation; it was a “runaway train” and the police operated an “arrest first, gather evidence later” policy.[11]  Yewtree undermined the rule of law and turned policing into entertainment; it was a “prurient charade”:[12] a crude cultural “carnival”[13] in which the icons of our childhoods became the scapegoats of today; it put the past on trial, judging the hedonism and sexual license of the 1960s and ‘70s by the priggish moral standards of 2013.  Sociologist Frank Furedi observed that Yewtree was never about investigating or fighting crime: it was “more like a propaganda campaign or a moral crusade”.[14]  An unnamed barrister said,

This country is now completely fucked-up over anything to do with accusations of abuse; it’s produced a licence for the individual to get compensation and for charitable organisations to bleed people dry, all in the name of protecting children.

Everyone is afraid to criticise today’s abuse gravy train for what it is and the built-in bias of the police and CPS has provided both the perfect blunt weapon for anyone looking to take revenge against someone they don’t like and a simple way for opportunistic individuals to make some money.[15]

More allegations were made in 2012 by an individual still identified only as “Nick” against former Home Secretary, Leon Brittan, former Chief of the Defence Staff, Lord Bramall and the late Edward Heath.  “Nick” said it was all “just a joke, to start with”, but his claims were taken up by the now defunct website Exaro News which also published allegations by another witness, referred to as “David”.

The case against Brittan, concerning a rape allegedly committed in 1967, had been so insubstantial that the Metropolitan Police Service did not even inform him of the initial complaint.  This had led one complainant – a Labour Party Activist with a history of false allegations – to complain further to the police, the media and Tom Watson MP – now deputy leader of the Labour Party; this time Brittan was interviewed, and a file sent to the CPS who told the police no fewer than three times to drop the case due to the complete lack of credible evidence.[16]  The police feared, however, that in the highly charged atmosphere of the time, taking no action would have been unacceptable to the public and the media, so they allowed a sick man they knew to be innocent to be hounded literally to his death in January rather than face the fury of the mob.  In October, Scotland Yard eventually apologised to Brittan’s widow[17] and released a statement which exposed their contempt for justice and the rule of law, and their utter subservience to public hysteria,

A decision to take no further action in respect of this allegation would undoubtedly have resulted in media criticism and public cynicism.  Lord Brittan could not therefore, at that point, have been informed that no action was to be taken…

“Nick” accused the D-Day veteran, Lord Bramall, of having abused him at an army base in the 1970s and ‘80s.  The case was so weak that the police did not refer it to the CPS; even Nick’s family submitted evidence which contradicted his claims.[18]

Theresa May had launched the Independent Inquiry on the day Leon Brittan was accused.  There was political pressure on her and the government to appear tough on child abuse and be entirely transparent about the past.  This pressure had been generated by the dredging up of old allegations by the late MP Geoffrey Dickens.

Claims were made that Dickens had compiled an “explosive” dossier of paedophile allegations which he had allegedly handed to Leon Brittan in 1984 when he was Home Secretary, and that this had since disappeared.  A copy had apparently been given to the Director of Public Prosecutions.  No one knew who was accused in this dossier or what the allegations were; this imprecision enabled an assortment of fantasists and political opponents to make a series of wild allegations.  The Metropolitan Police established Operation Fairbank as an umbrella operation to determine their scope.

Operation Fernbridge was launched in February 2013 to investigate claims made by Tom Watson that during the 1970s and ‘80s a paedophile ring had operated a brothel out of the Elm Guest House in South West London, supplying boys from Grafton Close Children’s Home in Richmond to politicians and other prominent men.  Regulars were rumoured to have included the Liberal MP Cyril Smith, Anthony Blunt and several Labour and Conservative politicians.

In 2015, Operation Fernbridge was shut down and replaced by Operation Athabasca, which also included investigations by the Greater Manchester Police under Operation Jaguar into allegations that Cyril Smith had raped boys at the Knowl View School and Cambridge House Hostel.  The owners of Elm Guest House, Haroon and Carole Kasir, were convicted of running a brothel, but no other allegations were proved.

It is almost certain that Dickens’ dossier, if it had existed at all, had been no more than anti-Semitic and homophobic raving.  Together with his colleague, David Wilshire MP, Dickens had been engaged in anti-occult activity, convinced that Satanists were sacrificing children, and had helped drive the satanic panic of the 1980s and ‘90s.  Dickens had wanted occult literature banned, and proposed to introduce a Private Member’s Bill making the practise of witchcraft illegal,

If we are to protect children from their sordid, sexual and diabolical grasp, we must bring in new laws to wipe witches off the face of the earth.[19]

Babies and young children, he said, were being sacrificed to the Devil in rituals all over Britain, “Six hundred children go missing every year.  At least 50 of these children are simply never found again…. With witchcraft sacrifice nothing is ever found”.[20]

The Independent Inquiry, despite receiving up to 100 fresh allegations each week and expected to run for 10 years,[21] had named only one suspect, Labour peer and prominent Jew, Lord Janner; this was, respected legal journalist, Joshua Rozenburg, pointed out, beyond its remit, even unlawful.[22]  At the time Janner was identified he was suffering from severe dementia and was deemed by Alison Saunders, the Director of Public Prosecutions, unfit to face prosecution, but the decision was overturned following a public outcry; in December 2015 Janner died, but the investigation, and the allegations, some dating back to the 1950s, continued.  In July 2016, the Mail on Sunday found that the principal witness against Janner, a registered sex offender himself, had made false allegations of abuse against the head of a care home he had attended at the same time as he made his allegations against Janner.[23]  It was also reported that another allegation had been dropped after passport records revealed Janner had been in Australia at the time, and not in Scotland;[24] the hearing into Janner was postponed until March 2017; Janner’s children insisted on his innocence and began moves to have him removed from the inquiry altogether.  Eleven police investigating the case were themselves  investigated for alleged criminality and gross misconduct.

In June 2014, Theresa May, the Home Secretary, announced Operation Hydrant, which became the overall coordinating operation, led by the National Police Chief’s Council; by December 2015 it was investigating 2,228 suspects, all of them men.  302 were prominent figures and the rest had worked at 761 religious, medical, educational, young offenders’ and other institutions.  286 were deceased, but this inconvenience didn’t seem to deter the investigators.  Former prime minister, Edward Heath, was investigated by more than a dozen police forces – principally Wiltshire, under Operation Conifer – despite having died in 2005 and despite a lack of credible evidence against him.  Former MP Harvey Proctor called a press-conference in which he revealed in graphic detail the allegations against him – including the torture and murder of two boys –  and claimed he was the victim of a “homosexual witch-hunt”.  Chris Fay, the social worker who had accused Procter and others had been exposed as a convicted fraudster.  Another, unnamed, “victim” had been convicted for making hoax bomb calls and had falsely confessed to murder.[25]

Operation Midland was set up by Scotland Yard in November 2014 to investigate Nick’s claims of a high profile paedophile ring centred around the Dolphin Square estate in Pimlico, and the alleged deaths of three boys.  Senior officer Detective Superintendent Kenny McDonald called the allegations “credible and true”, but Scotland Yard retracted this view in December, admitting they had given the impression they were “pre-empting the outcome”.[26]  By September 2015 the operation had uncovered no evidence at all.

Operation Cayacos investigated allegations of a paedophile ring centred on the founder of the Paedophile Information Exchange, Peter Righton, resulting in two convictions.

Operation Whistle ran under the auspices of Hydrant in the States of Jersey, following allegations against 45 individuals either dead or unidentified and 13 high profile suspects, including Heath and Jimmy Savile.  Again, nothing substantial was found and an item initially identified as a fragment of a child’s skull turned out to be a bit of coconut shell.

Operation Garford reviewed a 1992 investigation into historic allegations centred on Kesgrave Hall School and two other schools in Suffolk.

Further inquiries were run by the Independent Police Complaints Commission into allegations of corruption and cover-up by the Met.; by the NSPCC’s chief executive, Peter Wanless, into allegations the Home Office had covered up and mishandled historic allegations (which found no evidence); in Northern Ireland to establish whether there had been systemic failings by institutions or the state in their duties towards children in their care between 1922-95; in Scotland, following scandals involving alleged child abuse at institutions including those run by the Roman Catholic church; in North Wales to investigate allegations of abuse in children’s homes between 1963 and 1992; and on Jersey, Frances Oldham QC began an inquiry into historical allegations against the island’s care system.

The total cost to the taxpayer of this extraordinary moral panic can only be guessed at; Dame Lowell Goddard was being paid around £500,000 to head an inquiry employing 155 staff and dozens of lawyers and estimated to cost £100 million if run for 5 years.  The remit is huge, covering Parliament, the armed forces, the Roman Catholic and Anglican churches, schools, children’s homes, the internet, etc.  The question Goddard was tasked with answering was whether these institutions had adequately protected young people in their care, but if the question whether the abuse alleged ever took place cannot be asked, the primary question cannot be answered.  In some police forces it is claimed that a quarter of their staff are engaged on these operations.[27]  It’s powers are similarly unrestricted, able to label someone a paedophile without evidence, trial or due process.  One commentator suggested the inquiry “seems to have a remit to examine every instance of institutional sexual abuse of a British child anywhere in the world, dating back to 1945“.  Recent estimates that it could last 20 or 30 years are simply another way of admitting that it may never end: Operation Hydrant has become Operation Hydra.

It has become hijacked by child abuse charities and campaigners which promote a scare-mongering agenda that the bulk of child abuse isn’t reported, that it goes on behind closed doors, that we are living through an epidemic of child abuse, but who can offer no evidence at all for their claims.  They have dictated the selection of the inquiry chairmen and the character of the inquiry.

Far from being a forensic analysis of the extent of child abuse and the competence of institutions to tackle it, therefore, the Goddard Inquiry became a vast state-funded propaganda machine in which allegations are accepted without question or cross-examination and claimants are treated, prejudicially, as “survivors”.  This raises the purpose of the inquiry, which can have no practical application, can never deliver justice, and seems rather to be an exercise in offering the victims a therapeutic experience and emotional closure

All of the initial allegations upon which the huge edifice of the Independent Inquiry was built have crumbled: the accused were innocent, their accusers were liars, crooks and fantasists, there were no paedophile rings, no establishment cover-ups.  The only appropriate course of action now must be to end this travesty.

 

 

[1] Criddle, C. (2016, July 29). Mother of son who hanged himself after being falsely accused of rape commits suicide a year later. The Telegraph.

[2] Scott, M. (2016, July 21). The shocking case of David Bryant reveals the fallacy that we can always spot a sliar. Retrieved from http://www.barristerblogger.com.

[3] Hewson, B. (2016, August 04). False Allegations: a stain on justice. Retrieved from http://www.spiked-online.com.

[4] Hoyle, C., Speechley, N.-E., & Burnett, R. (2016). The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices. Oxford: University of Oxford, Centre if Criminology.

[5] R v H [1995] 1 AC 596.

[6] Rayner, G. (2012, October 19). Jimmy Savile: police launch criminal investigation after victims claim some abusers are still alive. The Telegraph.

[7] Black, T. (2013, July 01). Jimmy Savile: the Satanic panic resurrected. Retrieved from Spiked Online.

[8] Gray, D., & Watt, P. (2013). Giving Victims a Voice. London: Metropolitan Police Service & NSPCC.

[9] Moore, C. (2013, January 11). Treating every allegation against Jimmy Savile as a “fact” undermines justice. The Telegraph.

[10] Hume, M. (2014, May 01). Clifford is a creep, but what’s that got to do with Savile? Spiked Online.

[11] Martin, A. (2013, August 22). Jim Davidson WON’T face court over sex assaults claims by ten women. Daily Mail.

[12] Hewson, B. (2013, May 08). Yewtree is destroying the rule of law. Retrieved from Spiked Online.

[13] Betts, H. (2012, December 07). The search for paedophiles is more carnival than witch-hunt. The Guardian.

[14] Dathan, M. (2016, January 28). Even the FAMILY of the man who accused war hero Lord Bramall of sex abuse say his claims are ‘fantasy’. Mail on Sunday.

[15] Peytors, R. (2013, August 17). False abuse allegations may increase after new guidelines. Retrieved from The Opinion Site.

[16] McTague, T. & Cohen, T. (2015, October 16). Revealed: CPS told police to drop the rape case against Leon Brittan THREE times but they refused even though they knew there was “not a strong case” against him. Daily Mail.

[17] Joshi, A. (2015, October 16). Police Apology Over Lord Brittan Rape Case. Sky News.

[18] Dathan, M. (2016, January 28). Even the FAMILY of the man who accused war hero Lord Bramall of sex abuse say his claims are ‘fantasy’. Mail on Sunday.

[19] Op. Cit. Glasgow Herald. (1988).

[20] Canberra Times. (1988, September 20). Devil sacrifice of children “all over Britain”. Canberra Times.

[21] Mendick, R. (2016, July 26). Goddard child sex abuse inquiry could ‘last a decade’ as hearings into Lord Janner delayed after police object. The Telegraph.

[22] Rozenburg, J. (2016, June 20). Janner: a misguided inquiry. Law Society Gazette.

[23] Dathan, M. (2016, January 28). Even the FAMILY of the man who accused war hero Lord Bramall of sex abuse say his claims are ‘fantasy’. Mail on Sunday.

[24] Leask, D. (2016, August 01). Scottish abuse allegations against late Lord Janner have been dismissed, says peer’s son. Herald Scotland.

[25] Mendick, R. (2015, September 27). “VIP child abuse ring” accuser served time in prison for fraud. Sunday Telegraph.

[26] Barrett, D. (2015, September 21). Scotland Yard admits mistake over “credible and true” paedophile inquiry comment. The Telegraph.

[27] Hoyle, C., Speechley, N.-E., & Burnett, R. (2016). The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices. Oxford: University of Oxford, Centre if Criminology.

Angry Harry Passes Away

I was very sad to hear today of the sudden death of Angry Harry from a brain aneurysm.

Angry Harry has been a great inspiration to me over the years and was rare in the men’s rights community for being able to cut through the resentment, posturing and misogyny which characterises much of the movement.

He saw and explained things with great clarity and inexorable logic; his analysis of false allegations of rape, for example is a master-class.

Here he is on male psychology:

Stumbling at the Threshold

For many men that stumble at the threshold are well foretold that danger lurks within

The following is the revised entry on Threshold from our Family Law A to Z, but I thought it would make an interesting blog post in its own right.

 

The threshold is the point at which the neglect or ill-treatment of a child justifies the mandatory intervention of the state.

Ideally social services should provide parents with the support necessary to enable them to provide care for their children at home.  Section 22C of the Children act 1989 specifies that a local authority should first attempt to ensure that a child stays with his parents, then with a person who has parental responsibility for him, or with a person who has a child arrangements order naming him as a person with whom the child is to live.  If that is not possible they are obliged to find a home with a relative, a friend or finally another person who is also a local authority foster parent.  If none of these is possible they must find him accommodation in a children’s home.

Social services are also under a statutory obligation when making a decision to consider the wishes of the child and of his parents; Section 22(4) CA1989 stipulates that before making any decision with respect to a child a local authority (LA) shall, so far as is reasonably practicable, ascertain the wishes and feelings regarding the matter to be decided of the child, his parents, any person who is not his parent but who has parental responsibility for him, and any other person whose wishes and feelings the authority considers to be relevant.

Guidance on the principles and parameters of assessing the needs of individual children and organisational responsibilities for the safeguarding of children are to be found in Working Together to Safeguard Children, published by the Department for Education in 2013:

  1. Assessment must be carried out early in a case so that alternatives can be tried before engaging the child protection system. It must be undertaken by a lead professional who should provide support to the child and his family, act as their representative and co-ordinate the delivery of support services;
  2. Everything communicated to the family must be clear and consistent and confirmed in writing;
  3. Where the lead professional believes this early support cannot resolve concerns the case must be referred to the children’s department of the LA and a social worker will then take over. The LA must acknowledge receipt of the referral and confirm what action will be taken within one working day; the full assessment must then be completed within forty-five working days from the point of referral.

It is at this point that good intentions break down; the Children Act has been blamed for ending the system’s reliance on forensic evidence and replacing it with an erratic decision-making process enabled by broad, nebulous concepts such as ‘future harm’.  The quality of these decisions became even worse following the case of ‘Baby P’ in 2007.  Everyone in the system now goes along with these decisions because they fear being discredited if they resist, and there is thus little check on the process.  There is no evaluation of any harm social work might cause – by the forced night-time removal of children, for example – and no evidence it improves matters for children.  The impulse is to remove children from risk, with little thought of what will happen to them once in care.

The first test is to determine whether the child’s carers cannot be removed from the pool of potential perpetrators; the Court of Appeal had to decide on this issue in Re B and W [1999] 2 FLR 833 in which a baby had suffered serious shaking injury at the hands either of her parents or of her child-minder.  The LA made Section 31 applications to take both the parent’s baby and the child-minder’s ten-month-old child into care.

At the full care hearing the first instance judge could not find whether the injury had occurred while the baby was in the care of her parents or of the child-minder.  He dismissed the LA’s applications on the grounds that the threshold criteria had not been met.  Instead he made a Section 40 order placing both children in care pending the LA’s appeal.

The LA duly appealed and the Court allowed the appeal relating to the baby, but the appeal relating to the child-minder’s child was dismissed.  The Section 31(2) threshold criteria had been reached in respect of the baby and the harm suffered was attributable to the lack of proper care; the word ‘attributable’ did not require the Court to find that a specified individual was responsible for the harm caused, care was often shared by a number of adults.  Risk had been proved and the child should not be left at risk because it wasn’t clear which adult had failed in their duty of care.

In the case of the child-minder’s child there was no actual harm, so the criterion to be considered was the risk of future harm; because it could not be proved the child-minder had caused the baby’s injuries it could not be established that her child was certainly at risk of harm in the future.

The parents’ appeal against the care order (Lancashire County Council v B [2000] 1 FLR 583) was dismissed; the Court ruled that the phrase at Section 31(2)(b)(i), ‘the care given to the child’, could refer to the care given by any of the care givers where care was shared.  The parents could not be removed from the pool of potential perpetrators; this is now called a ‘Lancashire finding’ after this case.

For many years, parents have complained that LAs intervene before the threshold is crossed and that parents are therefore losing their children without justification.  One case was judged by James Orrell in a mere fifteen minutes; three children were taken into care on the flimsy grounds that a bruise on the ear of one of them could have been caused non-accidentally.  In the Appeal Court, Thorpe LJ exclaimed,

I am completely aghast at this case.  There is nothing more serious than a removal hearing, because the parents are so prejudiced in proceedings thereafter.  Once you have lost a child, it is very difficult to get a child back… There is a point where a judge’s brisk conduct of business in his search for protection of a child is just not acceptable.  This does not seem to me like acceptable process or natural justice.

In July 2013 the courts finally began to acknowledge and grapple with this issue in a series of Court of Appeal rulings.  A number of subsequent judgments have refined the approach which local authorities and judges must take.

An LA must prove, on a balance of probabilities, the facts on which it relies; must show that these facts amount to the child suffering, or being likely to suffer, significant harm; and must show that the proposed course of action is the only one possible, that ‘nothing else will do’.  The best interests of the child are paramount.

Failure to do this risks unacceptable social engineering: the Court has no mandate to improve on nature or secure that every child has a happy and fulfilled life; its single task is to be satisfied the threshold has been crossed.  The starting position must be Lord Templeman’s words in Re K D [1988] AC 806,

The best person to bring up a child is the natural parent.  It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.

Hedley J elaborated on this in Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282 in which he dismissed the LA’s application for a care order on the basis that the parents’ deficiencies had ‘subtle and ambiguous consequences’ for the children but could not amount to significant harm,

Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent.  Children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it.  It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability.  These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting… It would be unwise to a degree to attempt an all embracing definition of significant harm.  One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.

In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Lady Justice Hale defined the fundamental justification for interference in family life,

[34] Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end.  Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

If the parents dispute a matter of concern, then it is in issue and the onus is on the LA to adduce proper evidence and prove their allegation.  It is not enough merely for the LA to allege the parents do not accept the allegation made or give it sufficient standing.  If the Court is to find that the threshold has been crossed it must evaluate the evidence presented and make a finding-of-fact.  In Re P (A Child) [2013] EWCA Civ 963, Lady Justice Black emphasised,

[115] …Allegations which are denied are not facts.  If the local authority need to rely upon them as part of their case, they will have to produce the evidence to establish them.

The LA must demonstrate that the harm or likelihood of harm is the result of the care provided by the parents being less than it would be reasonable to expect from them.  The harm must be attributable to a lack, or likely lack, of reasonable parental care.  The Court should identify the respects in which parental care is falling short, or is likely to fall short, of what it would be reasonable to expect.

The LA’s evidence must include all the realistically possible options for the child with an analysis of the options for and against each option, and an assessment of the benefits and risk of harm involved in each option.  There must be evidence for the lack of any viable alternative option for the child other than adoption.  Too often this is missing; in a case which has received much attention, Re B-S (Children) [2013] EWCA Civ 1146, the President, Lord Justice Munby, declared,

[30] We have real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments.  This is nothing new.  But it is time to call a halt.

[40] This sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high.

The LA must next prove the link between the facts (if proved) and its claim that the threshold has been crossed.  It must explain why the facts justify a conclusion that the child is suffering, or is at risk of suffering, significant harm.  Both local authorities and the lower courts have based past decisions on flimsy evidence and a lack of proper analysis.  In Re V (Children) [2013] EWCA Civ 913, Lady Justice Black said,

[88] …Very careful consideration has to be given to whether these children’s welfare required that the parents’ consent to adoption be dispensed with and whether adoption is necessary.  I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering.

Before they make an application for care or adoption the LA must show they have fully considered all other possible options for the child.  In Re S, K v The London Borough of Brent [2013] EWCA Civ 926, Ryder LJ lamented the frequent absence of justification,

[24] …The reasoning was in the form of a conclusion that needed to be supported by evidence relating to the facts of the case and a social worker’s expert analysis of the benefits and detriments of the placement options available.  Fairness dictates that whatever the local authority’s final position, their evidence should address the negatives and the positives relating to each of the options available.

In Re G (A Child) [2013] EWCA Civ 965, McFarlane LJ expressed the crux of the issue,

[49] In most child care cases a choice will fall to be made between two or more options.  The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.

[50] The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare.

[54] …What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options.

The final requirement is that no other option than the one proposed by the LA will do; the European Court had warned in YC v United Kingdom [2012] 55 EHRR 967,

[134] Family ties may only be severed in very exceptional circumstances and… everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family.  It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

In the influential Re B (A child) [2013] UKSC 33 in June 2013, Lady Justice Hale introduced the now common phrase ‘where nothing else will do’,

[198] …the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.  In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions.

In Re P (A Child) [2013] EWCA Civ 963 Lady Justice Black cited Hale,

[102] …Re B is a forceful reminder that such orders are “very extreme”, only made when “necessary” for the protection of the child’s interests, which means “when nothing else will do”, “when all else fails”.  The court “must never lose sight of the fact that [the child’s] interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.

Finally, in September the President, Munby LJ, gave his thoughts in Re B-S (Children) [2013] EWCA Civ 1146,

[22] The language used in Re B is striking.  Different words and phrases are used, but the message is clear.  Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are “a very extreme thing, a last resort”, only to be made where “nothing else will do”, where “no other course [is] possible in [the child’s] interests”, they are “the most extreme option”, a “last resort – when all else fails”, to be made “only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do”.

Social workers reacted angrily and Munby was criticised for his remarks which seemed to be at odds with the Government’s pro-adoption agenda.  He responded in April 2014 that it is Parliament and not the Government which makes the law and judges who must interpret it.  In Re R (A Child) [2014] EWCA Civ 1625, he clarified that he had not changed the law and that adoption still sometimes remained the only sensible option.  The evangelical adoption ‘tzar’, Martin Narey, accused LAs of misinterpreting the judgments and issued an alarmist ‘myth-busting’ guide written by Janet Bazely QC which ignored the fact that some children who would formerly have been adopted by strangers were now benefiting from Kinship Care.  It is true that the law did not change, but the understanding of it did, and practice improved accordingly.

In Re A (A Child) [2015] EWFC 11, Munby had to repeat yet again the logical process a court must follow:

  1. Establish the facts upon evidence and not suspicion or speculation; if the parents refute an allegation it is not a question of them not admitting or acknowledging it: the matter is in issue and the LA must prove it;
  2. The LA must demonstrate a link between the facts and the conclusion that the child has suffered or is likely to suffer harm;
  3. Finally, the LA must resist natural temptation; Munby quoted Judge Jack in North East Lincolnshire Council v G & L [2014] EWCC B77,

[16] …the courts are not in the business of social engineering.  The courts are not in the business of providing children with perfect homes.

In Re J (A Child) [2015] EWCA Civ 222 in the Court of Appeal, McFarlane LJ reiterated the single criterion for removing a child,

[56(vi)] It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other.  The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established.  It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm.

In Praise of McKenzie Friends

There has been some recent criticism of McKenzie Friends, those unqualified, unregulated scoundrels who are taking all the work away from legitimate lawyers.  So I thought it would be appropriate to say something about the case of Re C (A Child) (Procedural Requirements of a Part 25 Application) [2015] EWCA Civ 539.  If you are not familiar with this case, it is quite an eye-opener, and demonstrates what a difference to justice a good McKenzie can achieve.  Seusspicious Minds has already covered this case much more expertly than I can, so I will try to be brief.

The father in the case was a Serb with limited English seeking unsupervised contact with his three-year-old son.  He was assisted by a McKenzie Friend in the Dover Magistrates Court.  The parents were also in disagreement over schooling, vaccinations and what name the child should be known by, though these issues were not the subjects of the particular hearing.

In the course of the proceedings the mother’s barrister, Lydia Slee from Stour Chambers, who had previously been a magistrates’ clerk, made an oral request that the father submit to a psychological assessment; the mother claimed that the father had a personality disorder, but no evidence was offered in that or subsequent proceedings.  The father had hugged his child in the contact centre, and taken a photograph of the child, against the centre’s rules.

As Lord Justice Ryder in the Court of Appeal later noted, there was no written application, ‘The expert was not identified.  There were no CVs for the court to consider, no timetable, no issue identification, no draft letter of instruction and no costings.  Father’s only notice of the application was in an informal discussion before the proceedings and he says that he did not understand that the application was going to be made in the face of the court’.  In fact, no written application was ever made.

Ryder further noted that it was ‘simply wrong’ that the magistrates had placed the onus of proof on the father to prove that the mother’s claim was false.  There was no attempt to consider a ‘proper and fair process’ in a case involving a litigant-in-person with a poor grasp of English, contrary to the training which Ryder noted the magistrates would have received.

Instead, the magistrates asked the CAFCASS FCA for his opinion, and he doubted that there was any reason to believe there was a mental health issue or that an expert witness could help.

The mother’s application was in breach of Practice Direction 12B and the Child Arrangements Programme.

Extraordinarily, the trio of magistrates acceded to the application, merely repeating the mother’s case without analysis and without explaining why they rejected the FCA’s advice, which was contrary both to statute – the Children and Families Act 2014 – and procedure – Part 25 of the Family Procedure Rules 2010; they made an order in these terms:

  1. The Father shall submit to a full psychological assessment and the following consequential directions apply:

a) The expert shall be Court accredited

b) The identity of the expert and letter of instruction shall be agreed within 7 days and in the absence of an agreement shall be nominated/approved by the court

c) The report shall be filed and served by 4pm on 23rd January 2015

d) The costs of the said report shall be borne equally between the parties, the court deeming that the costs are a necessary and reasonable disbursement

This order was unlawful: the court had no power to make such an order in such terms.  Even if it had, it could not have complied with the demands of Practice Direction 25B regarding the instruction of an expert, because the expert, his professional body and his expertise had not been identified.  Even that part of the order relating to costs was made without consideration of due procedure, and without determining whether the father could afford to pay (it was assumed that the mother’s share would be paid by the Legal Aid Agency).  The court didn’t even have any idea what the costs would be.  Unsurprisingly, the father, supported by his McKenzie, appealed, and his appeal was heard by Circuit Judge Richard Scarratt.  Astonishingly, Scarratt also ignored the entirety of Part 25 and the Child Arrangements Programme.

Unsurprisingly, the father, supported by his McKenzie Friend, appealed, and his appeal was heard by Circuit Judge Richard Scarratt.  Astonishingly, Scarratt also ignored the entirety of Part 25 and the Child Arrangements Programme.

The case was returned to the magistrates for directions and, as Lord Justice Ryder relates, ‘Unbelievably, and despite the time that had elapsed which would have permitted compliance with the statutory scheme and the Rules, the Family Court proceeded to make further directions as to expert evidence without any of the protections to which I have referred being observed’.

Ryder concluded that neither the decisions by the magistrates nor that by Judge Scarratt could stand and that they be set aside.  He ordered that proceedings should be remitted for allocation to a new judge, that the same FCA should be involved and that supervised contact should continue.  Agreeing with Ryder’s judgment, Lord Justice Aikens added,

It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously.  They were completely ignored in this case by both the magistrates and, I fear, by Judge Scarratt, and further ignored even when the case came back before the magistrates again on 30 January 2015.  Moreover, as Ryder LJ has pointed out, a mandatory order that the father should subject himself to a psychological assessment, a form of medical procedure, was unlawful.  That, too, was not apparently appreciated by either the magistrates or Judge Scarratt.

Payne Relief

One of the worst and most notorious of family cases this century was the decision by Lord Justice Thorpe and Lady Justice Butler-Sloss in Payne v Payne [2001] EWCA Civ 166 – hereafter Payne – in which the Court of Appeal allowed a mother permanently to relocate her four-year-old daughter to New Zealand.

The father resisted the application, but in vain.  He sought to use the recently introduced Human Rights Act, but Thorpe balanced his Article 8 right to family life against the mother’s right under Article 2 of Protocol 4, though not yet ratified by the UK, to ‘liberty of movement and freedom to choose [her] residence’.  Thorpe dismissed the importance of continuing contact because the father omitted any supportive authorities, notwithstanding the fact that Thorpe himself must have been well aware of them.  The case was further hampered by a CAFCASS officer who was ignorant of the law and based her limited understanding upon notes made by a colleague at a seminar she herself did not attend.

Thorpe introduced two principles to decide the case, firstly, the Court had no right to interfere with a mother’s right to move abroad if she wished to do so: it would risk the survival of the new family or blight its potential for ‘fulfilment and happiness’.  Secondly, if the mother’s application were refused it would have such a ‘detrimental impact’ upon her as to render her forever after incapable of effective parenting.  The effect was to establish a principle that a mother’s application to relocate her child would invariably be granted unless a father could argue why it should not; indeed, Thorpe had already suggested in MH v GP (Child: Emigration) [1995] 2 FLR 106 that the Court’s acquiescence to the resident parent’s wishes was a ‘presumption’ which could only be overturned by an overwhelming welfare argument.

The result, as the father’s counsel, Philip Cayford QC, would report ten years later, was that the unfortunate girl, S, would never see her father again.  Payne has dominated and blighted innumerable cases since, so that thousands of relationships between fathers and their children have been destroyed, despite the expenditure, no doubt, of many millions in the Court of Appeal.

For years, we were told that the precedent set by Payne would stand unless a suitable case were taken by the Supreme Court to overturn it, or the Government enacted new primary legislation.  In the years since, however, a number of judges have tried to wriggle out from under Payne.  In in Re Y [2004] 2 FLR 330, for example, Mr Justice Hedley argued that,

This case falls factually outside the ambit of well-settled authorities in this area of the law.  It demonstrates, in a way few cases can, quite how, when everything has been said, done and considered the ultimate test remains the welfare of the child, which in the last analysis overbears all other considerations, however powerful and reasonable they may be.

More recently, in K v K (Children) [2011] EWCA Civ 793, Thorpe admitted,

The only principle to be extracted from Payne v. Payne is the paramountcy principle.  All the rest… is guidance as to factors to be weighed in search of the welfare paramountcy.

Where each [parent] is providing a more or less equal proportion and one seeks to relocate externally then I am clear that the approach which I suggested in paragraph 40 in Payne v Payne should not be utilised.

The trend away from Payne continued with Re F (A Child) [2012] EWCA Civ 1364, Re TC and JC (Children: Relocation) [2013] EWHC 292 and Re Y (Children) [2014] EWCA Civ 1287.  The final nail in the coffin seems to have come with Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 in which Lord Justice Ryder issued this extraordinary warning for future cases,

Selective or partial legal citation from Payne without any wider legal analysis is likely to be regarded as an error of law.  In particular, a judgment that not only focuses solely on Payne, but also compounds that error by only referring to the four point ‘discipline’ set out by Thorpe LJ at paragraph [40] of his judgment in Payne is likely to be wholly wrong.

How has this remarkable volte-face come about?  The answer seems to be that the judges have performed a sleight-of-hand, a conjuring trick.  It began with K v K, in which Lord Justice Moore-Bick, whose expertise was in commercial and not family law, observed,

I cannot help thinking that the controversy which now surrounds [Payne] is the result of a failure to distinguish clearly between legal principle and guidance… As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance.

Herein lies the trick the judges have performed.  All Thorpe’s principle in Payne which judges had mercilessly applied since 2001 wasn’t principle at all: it was merely guidance.  What had been interpreted as ratio – that part of a judgment which contains the judge’s reasoning and which may set a precedent – wasn’t ratio at all, it was in reality just obiter – the asides, illustrations, analogies, opinions and references which go beyond the facts of the case and are not the meat of the argument or essential to the decision.

By relegating Thorpe’s principles from ratio to obiter they ceased to be binding precedent and became merely ‘valuable’ guidance; the sole principle for deciding these cases remained the welfare of the child, and – hey presto! – the tyranny of Payne was broken.

Children of the Revolution

In 2001 I was chasing a rainbow. I was in the family courts pursuing an application for contact with my son. As many fathers find, I needed more help and advice than my (fairly inexperienced) solicitor was able to give, and I joined the parenting organisation Families Need Fathers. The following year, disillusioned by FNF – membership of which was quite expensive – I joined the fledgling Fathers 4 Justice.
I stayed with F4J until 2012, and from 2005 was active in researching and writing for them; I also moderated the forum for many years. But I knew I was only getting a fraction of the whole picture. I began seeking out other organisations, in an effort to widen my perspective and understanding. I approached Mothers for Justice, run mainly by victims of domestic violence, and Babies 4 Justice, set up for mothers who weren’t receiving the child support they were entitled to.
It was all interesting and instructive, but all these groups – and many, many others I could mention – were only representing just one gender, and usually only a small section of that gender. I wasn’t getting to the truth.
On July 12th 2009 I discovered Wikivorce, which had been set up in March 2007, and immediately realised I had found something very different: its members were both men and women, parents from all sides of family proceedings, with very diverse experiences, but working together relatively harmoniously and very constructively. Incredibly, this feature – which is hardly rocket science – remains unique amongst parenting groups. Since then the membership has grown from 40,000 to 150,000. I began to correspond with another member; her experience was utterly different from mine – she was a single mother and survivor of domestic violence – but our views on parenting were remarkably congruous, and… well, reader, I married her.
The following article is, I believe, extraordinarily important, a game-changer, a paradigm shift: the pot of gold at the end of the rainbow. It shows what can be achieved when mothers and fathers work together, in a spirit of mutual respect and cooperation. Ultimately, single gender groups will never, ever, achieve anything, because they represent an adversarial approach to parenting. The only way to parent a child is, has always been, and will always be, cooperatively by two parents. No one has ever come up with a better alternative, and never will, despite the efforts of reformers like Plato who think they can come up with something better. Similarly, no one will ever come up with a better alternative to marriage, however many millennia elapse. I believe these truths passionately.
Lawyers, politicians, legislators come and go, as do the single issue, single gender groups, with their impossible, ill-considered, unrealistic demands. At a stroke they have become redundant, obsolete. What the parents in Wikivorce have achieved makes the other groups, and the legal reforms, irrelevant. These are parents, parenting. Quietly, without publicity or fanfare, they are creating a revolution.

Quantum Valeat

The language and vocabulary  we use say much more about us than the words alone.

In the field of family break-down, I am very aware of the language and words used by parents. Often, without realising what they are actually projecting, people use words, phrases, language which often tells me much more than they think are saying. The words used can either calm a situation or more often than not, increase and inflame hostility and conflict.

I have read many, many statements from parents in support of their proposals for parenting time. All too often, they focus on what the parent wants – starting sentences with “I want”, using self-focused language that moves the emphasis on to what the parent desires, rather than keeping the  child’s needs as the heart of the statement.

Language can often inflame an already delicate situation, and create fractures and hostility where adopting a different sort of language…

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