Should journalists attend court?.. Part 2

22 May 2011 by

I asked in a recent post whether journalists need to attend court hearings to report accurately. The post arose from judgment in a family court case involving a mother’s abuse of her baby. The judge took the unusual step of criticising the Sunday Telegraph’s Christopher Booker’s reporting, which he called “unbalanced, inaccurate and just plain wrong“. That criticism was then supported by the most senior family judge in a different judgment.

Christopher Booker has now responded to my post, although somewhat obliquely. He writes:

I was again attacked last week by a prominent legal blogger, for reporting on cases where the system appears to be going tragically wrong, without having sat for days in court to hear “both sides of the story”.


This barrister compared me to a sports writer who cannot be bothered to watch a football match, but relies on a version given by one player after the game. But would a journalist attend a match when he is forbidden to name the teams or any of the players, may be imprisoned for disclosing much of what happens on the pitch, and is even prohibited from giving the final score? This is a better analogy for the secrecy which surrounds what goes on in our family courts. It is only remarkable how much of this corrupted system we can still manage, quite accurately, to bring to public view.

It is flattering to be referenced. It would have been even more so if Booker had referred to me by name or linked to the original post. Anyway, by way of response, I take common cause with Lucy Reed at Pink Tape, who points out that

having made the decision that it is not commercially justified to attend the “fixture” would a responsible journalist nonetheless go ahead and report the match anyway? One would hope not – at least not without verifying his information / sources. That Booker has overlooked dealing with this point is illuminating.

The point of the football match analogy was to demonstrate, in a way which anyone who hasn’t ever been to court (that is, the vast majority of people) could relate to, the enormous difference in perspective which one gains by actually attending a hearing in which witness evidence is heard.

In the sad family division case which Booker was writing about, evidence was heard from the parents of the child and the medical experts involved. The decision was by no means clear-cut, and relied on a subtle and careful analysis by the judge of the evidence he heard during the hearings.

Some think judge got it wrong; that much is clear from the impassioned comments to my last post. Perhaps his decision will be overturned on appeal. But as anyone who has been to court will know, in an emotional and finely balanced trial, judges make rulings on the basis of a mixture of raw facts and the general impression the receive after hearing evidence from witnesses being tested under cross examination from barristers.

In a complex case such as this, it is hard to see how anyone can come to a judgment, let alone one of the immovable certainty which Booker appears to have reached, without attending some of the hearing or at least reading a transcript of the evidence.

The fact remains that although Booker may be disappointed that he cannot name the players in the case, he did not spend one minute attending the match. He then went on to provide a strongly worded opinion piece in a national newspaper based wholly on the evidence of the mother.

Surely the fact that Booker cannot name the people involved in the case (for now) does not absolve him of the basic requirements of investigative reporting, namely to listen to both sides of the story and not to reach a conclusion before doing so.

Moreover, he is a professional journalist and, unlike the general public – many of whom are angry at the way in which family courts go about their business – has the opportunity to attend court and then provide an alternative judgment if necessary. Arguably in an anonymised case, which is harder to report from a distance, he has an even more urgent responsibility to do so.

This debate keys into the wider one on privacy in the courts. The opening up of the family courts to journalists, albeit with restrictions on who can be named, should have allowed the media to come to more informed judgments on cases. Perhaps some had become more comfortable with making olympian judgments from afar. This is a shame, as if there are problems in the courts and the family justice system in general, journalists are best placed to expose them.

The fact that Booker hasn’t linked to my piece and that comments have been disabled “for legal reasons” means that this isn’t much of a debate anyway. As many at the #lawblogs event last Thursday (more on this soon; for now see this report by James Wilson) emphasised, hyperlinks are absolutely crucial to legal blogging and reporting, as they allow readers to examine the primary sources a writer is commenting on for themselves, and then decide if they agree.

The fact that none of Booker’s articles link to the ruling he is complaining about or the blog he has disagreed with are perhaps indicative of his style of taking no prisoners but also to a large extend preaching to the converted.

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73 comments


  1. ian josephs says:

    Everyone avoids the awkward fact that the UK alone in Europe takes babies at birth from mothers and GAGS the parents with threats of prison if they protest publicly.”risk of emotional abuse”,what a disgusting pretext for stealing babies to feed the adoption racket !
    Those in latin countries in particular just cannot understand such barbarity or even believe it is actually happening !Physical abuse they understand,but emotional abuse is something that everybody suffers at sometime or other in like and cannot possibly justify breaking up a family that is so desparate to stay together that they will endure a year or so of gruelling court cases trying to do so.
    The UK CHILD PROTECTION SYDSTEM IS A PARIAH with its gagging of parents to stop them protesting ,and then a second gagging of parents at contact where parents are forbidden to discuss the case or to say they love their children and want them back under pain of contact being stopped immediately !
    This leaves the field clear for social workers,”experts” and the like to tell the unfortunate children “your parents do not love you ,they never say they want you to come back so now we have found you a lovely “forever” mummy and daddy !Don’t believe me? Talk to some of the kids who this is happening to right now but who still manage to find a call box to dial 100 reverse charge, or to send an email from a library computer or quickly borrowed mobile phone.

    Gags ,gags,gags,only UK lawyers and social workers want to gag parents,gag newpapers,and shut down anything on the internet they disagree with ! Why is the UK alone in Europe determined to suppress free speech by threats of prison in these cases?

  2. Mr BD says:

    …when judges consider the “facts” in relocation cases, they do so using the prism of Payne. Cases do not turn on the “facts” per se – as is constantly asserted by Wall – but rather upon the particular interpretation of the facts, as directed by the suppositions and ideology of Payne.
    For example, if Payne directed that great weight should be given to LTR applicants who had red hair, then a judge at first instance would grant an applicant permission to remove her children based on the “fact” that she had red hair.
    In reality, there are a number of “facts” which are given great weight by the Payne criteria. The visible upset of an applicant in the witness stand, for example.
    Other “facts” are given little weight, for example the benefit to a child of remaining in a meaningful relationship with both parents, in terms of his emotional, developmental and educational well-being.
    To suggest that relocation cases turn on their “facts” is plain wrong. They turn on the weight and interpretation given to particular facts. They turn on the suppositions and ideology of Payne.

    Mr BD

  3. Mr BD says:

    Dear Mr Nately et al

    My Dickensian caricatures were intended as a bit of light relief in an otherwise extremely serious debate! I apologise if my – perhaps pathetic – attempts at humour have again been misinterpreted, or caused any upset.

    Indeed, it would be very wise for us not to question or attack the character, experience or intelligence of anyone who advances an argument, and not to speculate on his “ideology” or on any particular “agenda” s/he may have (self promotion, financial gain, selling more newspapers, emotional involvement in a case, “bitter pills” stuck in the throat etc, etc).

    Instead, we really ought to analyse the merits of the arguments and any evidence advanced, without recourse to issues of personality.

    I have raised a large number of arguments against Payne (see my link above), but none of the supporters of Payne on this blog has cared to address them in any comprehensive and rational manner. Why not?

    Instead, they have chosen to focus on the detail of my particular case, on my emotional state, on my lack of legal representation, and so on.

    It really would be marvellous if you would actually address the merits of the arguments which I have advanced, rather than simply to dismiss them out of hand, declaring that they are not worthy of the court arena! This approach impedes progress.

    Wall dismissed my case because he judged that the mother had made a powerful case for relocation (of course, this judgment was made using the existing Poel/Payne criteria). What do you think of my suggestion that, if the mother’s case had been judged using fresh criteria – as formulated by the Supreme Court – that it may not have been judged as being ‘powerful’? I have already posited this question, but it has been ignored.

    In any case, please do bear in mind that, in dismissing my case, Wall did NOT simultaneously dismiss my arguments and scientific evidence!
    On the contrary, he had “no doubt” that the arguments and scientific evidence I had presented to him were “compelling” grounds for a review of Payne (in the “right” case).

    HAD my case been the “right”, “suitable”, it WOULD have progressed to the Supreme Court, on the basis of the arguments and scientific evidence I had presented.

    So, please, do not be too quick to dismiss the arguments and the scientific evidence!

    To suggest that my case “fell flat on its face” because of the arguments and scientific evidence I had presented is plainly erroneous (and, if I may say, a little mischievous!).

    It may well be rather embarrassing to some in the legal community that a ‘non-lawyer’ succeeded in persuading Wall of the need for a reassessment, but let no one be deflected by any such petty feelings. Let us concentrate on the important task in hand, to serve the best interests of the hundreds of children facing, or soon to face, overseas removal.

    I have indeed questioned the efficacy of our existing legal procedure, particularly when the serious issue of child welfare is at stake. Whilst some may see this as utter heresy, others may wish to evaluate whether or not the legal system could and should be improved in order to better serve child welfare.

    For example, in situations in which a number of high-ranking High Court judges (Wall, Mostyn and Thorpe) publicly express concern over a particular law, indicate that there are “compelling” arguments and scientific evidence case for a review, and suggest that such a review should take place urgently, there ought, in my mind, to be a mechanism for facilitating such a reassessment in a very timely manner. We should be able to debate the merits of this suggestion, should we not?

    With regards to Wall’s stance on Payne, it has indeed been suggested to me “over and over” in this thread that he has not retracted his criticism of Payne. However, if one reads Re W, one will see that Wall does indeed retract the word “ignores” but not the word “relegates”.

    To suggest that Payne “ignores” the harm done to children was indeed a rather silly thing for Wall to have said. Plainly, it does not.

    However, Wall did NOT retract the word “relegate”. Why did he not do so, in your view?
    In my view, that is the critical criticism of Payne made by Wall.

    That too much weight is given to the wishes of the relocating parent and too little weight is given to the harm suffered by the child. When judges consider the “facts” in relocation cases, the weight

    Furthermore, as I have said “over and over”, Wall criticised Payne in a second judgement in April 2010. Why does no one wish to address this? It would be marvellous of someone would!

    Mr BD

  4. Ah well, so much for an attempt at debate when people turn personal and make sweeping assumptions.

    I do understand the principles of binding precedent, and why a trial judge is forced to follow the guidance is Payne. I’m somewhat surprised that wasn’t picked up by you.

    As a result, the lower courts have no choice but to rank certain matters higher within the balancing exercise according to guidance set which pre-dates the scientific evidence as to the impact on children of the significant diminishing of relationships with one parent. To argue that a new test would not better serve child welfare is disingenuous.

    I don’t recall having criticised a trial judge for following Payne. In this area, their wide ambit of discretion is removed under the rules of stare decisis.

    I do however believe it of open to the CoA to declare Payne v Payne as having been made ‘per incuriam’ in that Parliament set out the matrix for matters to be considered within the balancing exercise in Children Act cases, and to intent, Thorpe ‘trumped that’. Indeed, it is a duty of the judiciary to ensure the proper development of law in consideration of societal changes (as Thorpe once said himself).

    Mr Cayford, counsel to Mr Payne failed to present authorities which confirmed the relative importance of fathers had changed. Mr BD did not fail in this regard (hence Wall accepting the argument as compelling in the right case’). Thorpes favouring of the distress argument turned on two factors:

    1) His believe in its validity (despite no expert evidence to support that view having come forward in 40 years. While a matter may be considered to be ‘subject to judicial notice’, this in reality does not make it fact (although arrogance can make it appear so);
    2)Mr Cayford failed as counsel to provide authorities to confirm that the role or importance of fathers to child welfare had changed in 40 years.

    On that first point, Thorpe has faced criticism from ‘real’ experts such as Professor Mark Berelowitz.

    On that second point, the evidence does now exist.

    Therefore, the tests applied in relocation cases are based on unproven nostrums, and fail to take account of expert evidence. Wriggle all you like gentlemen, but that point is widely accepted now.

    I hope that clears up your confusion, and would note that you have been somewhat circumspect in your selection of what I’d said, which is no doubt a valuable skill as counsel, when representing your client’s best interests in favour of impartiality.

    Michael Robinson

  5. Alastair Patterson says:

    This discretion is highly questionable. Firstly, it is the role of the common law to develop authority to interpret the will of Parliament when dealing the minutiae of real life and provide a predictable law. For example, if Parliament prescribes an offence of dangerous driving it for the common to develop authority as the evidential test for dangerous driving.

    A predictable law has three roles in a democratic society, it ensures the citizen’s just and fair treatment by the state, it enables the citizen to regulate their conduct and avoid the state’s sanction but, more importantly, it can be challenged in the democratic processes. It is the absence of anything tangible to challenge that has obstructed progress for twenty years.

    The family courts have given themselves the ambit of discretion by not making sufficient authority to determine the s1(1) question in relation to a child and refusing to define child welfare as an matter of evidential fact. I can find no authority from Parliament that said they may. It is disingenuous for the judiciary to claim that Parliament allowed it.

    Secondly, child welfare is in fact defined as a matter of evidential fact in s17 of the act, but the judiciary and social care agencies refuse to work to it. The judiciary are in fact ignoring Parliament’s will.

    The claim that Parliament provided the generous ambit is a blatant falsehood that supports what is, in effect, the suspension of the Rule of Law in the family justice system.

    Alastair

  6. Jim Nately says:

    Mr BD,

    After an interesting discussion, it is a great pity that you have adopted a caricature of other people’s positions.

    As has been said over and over, it is wrong to claim that Sir Nicholas Wall retracted his comments regarding Payne. He simply made it quite clear that they should not be treated as law. And when the Payne is reevaluated, the guidelines issued will be more than simply a couple of sentences in the bottom of a short judgment. As it must be.

    While you can deride the appeals process in this country all you like, it does not change the fact that the courts will not entertain an appeal to modify a point of law to a position where the appellant’s case would still fail on its facts.

    The suggestion that failing to modify the test for leave to relocate somehow does injustice to children whose parent would still obtain leave to remove under the new test is deeply illogical. It makes no difference—no matter how many appealing but inapt metaphors you dig up.

    I should also add that I think you misunderstand Christopher Booker’s interest in family law. Much like the celebrated Daily Mail classic “You’re too slow to have children, so we’re taking them away” travesty of reporting, Booker’s position is based on conservative ideology. Care Services are attacked because they represent ‘the big state’ and ‘damage the family’—a curious belief that no matter how brutal ‘the family’ (and his concept of a family is no doubt rather outdated and conservative) it should not be broken up.

    His position is pretty clear: when a parent walks into A&E with a screaming baby with a fractured arm, something is wrong if children’s services decide to attempt to take the child into care, the judge is wrong to try to establish if the injuries are accidental or not, the parent’s determined insistence that she has done nothing wrong is clearly the truth and this is some kind of evil conspiracy by Stalinist social workers.

    Beware hitching your wagon to these kind of people and this kind of thinking! It does considerable disservice to what is—although I don’t think it is as important as you make out—a very valid argument.

  7. Byron Crowley says:

    Mr. Robinson,

    On one hand, you appear to castigate the judiciary for following precedent, then appear to lament the wide ambit of discretion afforded. (“Judicial discretion is so wide, that it appears at times to encompass every permutation of thought.”)
    It is appropriate that judges are afforded a wide ambit of discretion as they are uniquely in a position to assess all the evidence in the case, including the parties themselves.
    I would suggest that your understanding of Payne is a little lacking; it does not offer carte blanche to the relocating parent and such applications have failed; P v P notwithstanding. The decisions of trial judges (exercising their ambit of discretion) in refusing applications to relocate have been upheld by the COA; by LJ Thorpe himself. This is how the ambit of discretion, under the instruction of jurisprudence in the form of precedent, is intended to function.

    ” The question here should not be ‘is a judge right to apply the law in this way’, but ‘does the law best serve the needs of children’. I can present evidence (and have at Westminster) to show that it doesn’t.”

    This is where you stray into the same area of folly as Mr BD, with a little self publicity thrown in. The judge is right to apply the law, as it stands; he/she can do no other. That is what they are for.
    Both of you seem completely blind to this simple and basic principle. In the emotionally charged arena of family law, explaining this basic principle that one must deal with the law as it stands, rather than how the Applicant or Respondent believes it ought to stand, can test client communication skills to the limit.
    Aside from the (in my view) risible suggestion that the Payne ruling was made per incuriam, you appear to have simply regurgitated, at even greater length, the out of context and largely irrelevant propaganda of Mr.BD.
    As I pointed out to him, the points you both appear to be advancing have their place but it is not in a permission hearing in the COA.

  8. Stimulus says:

    Mr Robinson

    My quote “little is known about the effects of relocation on children from the UK” came from the website for which I assume you are responsible. That is an admission that you are unaware of the effects of re-location on children other than general principles of the effects of a child not having a relationship with a parent. Re-location does not prevent contact, although it may prevent it on a regular basis depending on location, and you have not provided research to show the balancing factor of the potential damage done by not allowing the child to re-locate. A some other poster has said, in these cases there is no right decision only two wrong ones.

    I do not know if you have read all the posts contained in this thread, but if you have, then you most certainly have missed the points that are pertinent to an appeal. What people say in informal gatherings or what you have presented to all and sundry is of little relevance. The fact that you have to take three attempts in successive posts to answer points raised is a clear indication of an inability to marshall facts and present a cogent argument in a succinct manner.

    Whilst your website may have some emotional impact for desperate parents, from what I have seen on this topic, it contains little of relevance to presenting a legal case and as such, I do not understand your need to keep advertising it on a human rights blog. It may well have a place on a lobbying blog. This failure to distinguish between legal argument and lobbying may be the cause of your failure to achieve what you aspire to, but I am sure that you mean well. You do run the risk of falsely rasing people’s hopes until you fully understand what is required in the courts rather than the tea rooms of Westminster.

  9. Alastair Patterson says:

    Butler Sloss P in Re L, admiringly observed the “timeless wisdom” of man born in the century before last in enunciating principles of child welfare. Thorpe LJ trawls back 50 years in Payne and is unconvinced that there has been any societal change in the role of fathers in children’s lives.

    Fathers are, and have always been, just “an important ingredient of any welfare appraisal”. The intention of the Children’s Act was to end custody-access and support both parents playing a full role in their children’s upbringing. That is still the government’s policy.

    Alastair

    1. Mr BD says:

      I have written to Butler-Sloss six times in the past year and a half, asking her to give her opinion on the current debate concerning Payne v Payne.

      She did trouble herself, last year, to speak out in defence of the welfare of the two killers of Jamie Bulger.

      But with regards to the welfare of the hundreds of children who endure overseas removal each year, she has not been prepared to speak.

      Sitting as a public servant in the House of Lords, one would imagine that she has a duty to speak up!

      Mr BD

  10. Stimulus,

    Plenty is known about the effects on children of removal from one parent, or that parent being significantly removed from their life (or vice versa). Relocation is at the extreme end of the spectrum.

    Fair enough you don’t agree with the arguments presented. A head of a specialist international law firm cited the report I’d written three times in her speech at Westminster.

    Perhaps it is worth reproducing her words here…

    ‘How can we, in the English legal profession, have gone so wrong, have failed so many children, have inadvertently engaged in gender discrimination almost 2 generations, have fallen so out of step with many other countries and, most of all, failed to acknowledge trends in parenting patterns, especially in international families, over the past 40 years? The time has passed for tinkering around the edges of our law, of political deferences to legal precedents, awaiting for the Supreme Court to find a suitable test case and hoping international conventions will come to our aid. As Prof Marilyn Freeman has shown in her studies, as confirmed by those of Professors Patrick Parkinson and Judy Cashmore from the University of Sydney, the size of the problem is large and will only grow. The costs of the relocation litigation, costs of travel for contact in the cost to the lives of children demand a cost-effective solution.”

    Not written by a lobbyist, but one of the most widely respected practitioners of law in the country.

    No doubt you are well intentioned in seeking to defend the court’s reputation. Let’s also remember that Sir Nicholas Wall found the arguments to be ‘compelling in the right case’. To suggest they have no focus in law or legal argument is a little disingenuous, or was Sir Nicholas similarly naive?

    I agree that the principles and research are generally understood, and further, apply beyond the arena of international family law. That said, the expert findings post-date the guidance of Payne, and as no doubt you will be aware, Thorpe, within the judgment of Payne, gave his guidance on the basis that counsel for the father failed to provide authorities to support his argument that a child’s wellbeing is best supported by two parent’s being involved in their childcare. I provided those authorities in December 2009, and again at Westminster in November 2010. As you say, these principles of child welfare are now widely understood, but not applied in relocation cases, where the guidance is out-of-date and based on a largely historic view of family life.

    Michael Robinson
    http://www.relocationcampaign.co.uk

  11. Alastair Patterson says:

    I wonder if anybody can answer this question?

    What is the difference between the paramount consideration of the child’s welfare in the wardship jurisidiction and the paramount consideration under the Children’s Act 1989 which was explicitly intended to end the wardship jurisdiction.

    If you look at Wall P’s address to FNF you will see that he compares the jurisdictions. I for one, can see absolutely no difference between them in the exercise of judicial power.

    If the child’s welfare is undefined as a matter of evidential fact, as Ward LJ confirms, and Lord McDermot’s interpretation of the paramount consideration made under the wardship jurisdiction still applies, then nothing has changed.

    As Mostyn J observed, Payne relies on authority, Poel, made under the wardship jurisdiction. In effect the courts have never implemented the Children’s Act.

    Alastair

  12. Mr BD says:

    Thank you, Michael, for your balanced and child-focused contribution.

    I would urge others to read and consider Michael’s contribution, as well as his body of work at wwwthecustodyminefield.com

    To conclude the discussions on this thread, it seems very plain that a re-assessment of the 1970’s suppositions and ideology of Poel/Payne is long overdue. A review of relocation law by the Supreme Court is urgently required, as Mostyn J said in June 2010, and as Thorpe LJ conceded, shortly afterwards.

    When, after giving himself a full three weeks to “carefully” consider the arguments and scientific evidence presented in Re D, Wall concluded that there was a “compelling” case that Payne “relegated” the harm done to children, it is a scandal that nothing has yet been done.

    It is an even greater scandal that Wall has now retracted his own “carefully” considered criticism of Payne.

    But perhaps the greatest scandal of all is that those who are gainfully employed in the ‘legal industry’ simply cannot accept that Wall may have got it wrong in Re D, that Payne may not be serving the paramountcy principle, and that the legal system for reappraising judge-made laws is unacceptably slow.

    As our lawyers friends have kindly described above, the British legal system does not allow for quick and sensible remedies. There is a precise procedure to be followed; a finely balanced case must first be found; the litigant must then have the necessary wherewithal to purchase the services of a barrister; the delay inherent in progressing to the Supreme Court must not be to the detriment of the children in the case; the case for removal must be weak; the barrister must present the ‘right’ arguments (whatever they may be – according to the commentators above, anything resembling the arguments presented in Re D would simply not do!); the barrister must present the ‘right’ scientific evidence (ditto!); and so on…and so on…

    To the outsider, this veritable obstacle course of legal hoops seems quite Kafkaesque!
    To the barrister, completely engrossed in legal procedure, rules and regulations, the hoops seem absolutely necessary.

    These barristers remind me somewhat of Dickens’ Barnacles at the Circumlocution Office; Sir Nicholas Wall perhaps being Lord Decimus!

    If the President of the British Medical Association stated that there existed ‘compelling’ evidence that food additive X ‘may’ be causing ‘harm’ to children, he would not wait two years before acting! The Precautionary Principle would compel him to act without haste. An urgent and comprehensive investigation would follow. And rightly so (I hope the lawyers would not disagree with this sentiment)!

    When it comes to the LAW, however, no such obligation exists upon the President of the Family Division. He has his procedures to follow. His rules to keep. His regulations to maintain. It will not do to rush things, says Lord Decimus!

    “I know these is a risk that Payne may relegate the harm done to children”, says Wall, “I know that there is a perfectly reasonable, powerful and compelling argument, but we must abide by procedure!”
    “Respect for the institution of the law must be our paramount consideration!” he says.

    The judiciary’s handling of relocation law epitomises the need for media scrutiny.

    The common sense of the great British public would force Wall to see sense. The public would not stand for his delay. Of that, I am quite sure.

    So, three cheers for Mr Booker and all other journalists who expose the dealings of the family courts to public scrutiny.

    And three cheers to Michael, and all others, who focus on child welfare rather than having blind faith in the ‘legal system’ and in its custodians.

    Mr BD

  13. Stimulus says:

    Mr BD

    I have had a look at the “scientific evidence” and I am surprised to find that this is nothing more than general prinicples that are widely understood. As such, I doubt that you were presenting Wall LJ with any information that he was not already aware of.

    Such research is applicable to all cases and not only relocation cases. However, in the report on the website, it is specifically stated the “little is known about the effects of relocation on children from the UK”. In other words, neither you nor the website could produce compelling evidence that is directly relevant to your case.

    If you based your appeal on the general material on that website I am not surprised you appeal did not succeed. It is lobbying material that has little focus in law or legal argument. If LIPs are to use such material then I think they are bound to fail. Whilst I am sure that the authors of the site are well intentioned, their approach is of little help in the legal arena.

  14. Jim Nately says:

    Mr BD,

    There does appear to be a curious and confusing swirl of metaphors circulating here. Allow me to briefly stick with yours:

    “Do you at least acknowledge that, whilst you seek out this hitherto elusive “suitable” case, large numbers of children are open to significant harm due to the continued implementation of Payne? If a child is drowning, one doesn’t spend 10 hours selecting the most “suitable” rope to throw out to him!”

    It is a nice metaphor, but in my opinion not particularly apt. To make it more apt, let us imagine that the rope is not particularly strong and may break (this is the argument relating to your studies concerning child welfare in and access to parents). Furthermore, the river (representing the arguments that the interests of the child are better served by being removed) is of variable strength or current.

    Although I should like to assure you that in practice I would do whatever I could, in our metaphor, consider the following. If one has the unlikely option of choosing of many ropes of different strengths, thrown to children in many rivers of different force, one selects to throw a rope to the child who may actually be saved by the rope. There is little point throwing twine—or even the strongest rope—to the child about to be carried over Niagara Falls. Indeed, perhaps doing so may only cause greater distress to all parties.

    The metaphor has become a little silly, but you may get my point. Simply put, when there is a case where re-evaluating Payne has a reasonable likelihood of resulting in a child remaining in the country because that—under the new test—is what is better for him/her, Payne will be re-evaluated. (Indeed, thanks in no small part to your efforts.) But given that the re-evaluation will take up around a year, and will necessitate a re-trial, it is not sensible to do this in a case where what might be called Payne+ will have no impact on the outcome. To do so only causes more suffering in a situation that already has caused too much.

    On the (original!) question of press reportage of family cases, perhaps I can say the following. First, be under no illusions about the ability of the press to monitor what happens in courtrooms. There isn’t enough money for that. When (only a couple of years ago) I was a law student, I would fairly regularly go to court to observe hearings in a major court centre. I almost never saw a reporter—there simply wasn’t the money. Quite commonly I would be the only person watching even in a murder trial.

    Second, there is a public interest reason in keeping restrictions on what can be reported. People will not use the family courts if they think their intimate lives will become fodder for the papers. From my brief experiences of the family courts (obtained from shadowing barristers in those courts), there are many cases that are almost comically sad and would no doubt make titillating stories. But these elements of people’s lives should not be on show to all and sundry.

    Lastly, I’m not in any way convinced their is any benefit to the child. If reporting was to be unlimited, I suspect we would find that a) almost every case is conducted appropriately and b) a lot of children would grow up with the fact that, for example, they were abused or the problems of their parents in public knowledge. This cannot be healthy for a child.

    The reality is that Christopher Booker could, if he had so chosen, written an interesting article about the science at the heart of many “fractured appendages” care proceedings with only the most tangental reference to L. But he wanted to write a story that would re-litigate L in his newspaper. In my opinion, the former is a useful addition to the debate. The latter is a form of titillation.

    If journalists focused on addressing the broader issues, as opposed to the instant cases, we might well find that public debate on matters of family law improved remarkably.

  15. Byron Crowley says:

    Mr. BD,

    It is becoming increasingly clear that you will not listen and, while the degree of emotional involvement invested in your own case prevented you from advancing arguments likely to have prevailed with the trial judge (let alone identifying valid grounds for appeal), it is disappointing that you cannot, with hindsight, see the wood for the trees.
    Barristers are trained to identify, formulate and present arguments that will prevail in court so it is unlikely that your plea that they adopt your arguments will find much currency at the Bar, given that those very arguments fell flat on their face at the first hurdle in your own case.
    I note that you have dropped that ghastly adjective “irrefragable” as a prefix to “scientific research;” the truth being that it is not exactly scientific at all, in the strict sense of the word. It is simply research, nothing more, which you have adopted as supportive of your position.
    It has already been put to you that a revision of Payne would affect but a tiny percentage of finely balanced cases so you and others who run well intentioned but often misguided quasi-legal websites for the benefit of the “disgruntled dads” brigade are, in effect, “tilting at windmills” in this respect. The arguments, suppositions and propaganda presented therein may provide succour to some but that is probably the extent of their value; a painful lesson you have already learned or, more correctly, failed to learn. I would suggest that you exercise caution in directing others towards them, lest they similarly be misled.
    Clearly, you have suffered loss in your case but I would suggest that you at least try to reflect on the possibility that both the trial judge and Wall LJ, faced with a stark choice, had the best interests of your children at heart in their respective rulings; furthermore, that your children may be better off as a result than would have been the case had their mother been refused permission to relocate to her native land, considering the undoubted distress this would have inflicted upon her as their primary carer.
    Lastly, I would suggest that your view of the role that might be played by the press in the reporting of such a case strikes me as naïve in the extreme. The history of accurate and impartial reporting by the British press is far from unblemished and any suggestion that judicial decisions might benefit from public scrutiny is a nonsense.
    At any rate, I suspect that you and a few others will contine to proclaim the validity of your position with evangelical zeal, regardless of what anyone tells you.

  16. Mr BD also had Wall say that the arguments were ‘compelling in the right case’. The first time those words were uttered in the Royal Courts of Justice in a leave to remove case in 40 years… he may have regretted them after, but as pointed out by Mr BD, did have three weeks to consider them before the judgment was handed down.

    As to whether or not it was the right case for those arguments to go through to appeal… well… I think Wall was wrong, and is wrong on the issue of relocation law in general. I also think he’s mishandled the matter, and has now backed himself into a corner.

    That said, I have no personal axe to grind, and find him to be quite an amiable fellow, but Wall brought the judiciary across into the arena of politics… once in that arena, they have to be able to cope with the criticism, and ideally, consider its validity rather than hiding behind ‘Parliament must fix it’.

    Michael Robinson

  17. I think it’s also worth noting that… to my knowledge… no appeal of a grant of leave to remove has ever been successful in the Court of Appeal. Not once in 40 years. Bit harsh to criticise Mr BD for failing in his appeal as a litigant in person, when not one highly paid and very experienced QC has ever succeeded either.

    Some of those appeals have had the involvement of some very eminent and widely respected QCs. I am sure, with the hindsight of the judgment and the presiding LJJ’s comments, we could all wisely look on and say that the QC was naive (although I’m not sure I hold the view that the Court of Appeal is always right).

    Would the commentator who suggested MrBD was naive similarly say the Honourable Sir Nicholas Mostyn was naive when, as a lowly QC, and only back in 2008, LJJ Thorpe refused his arguments.

    Alternatively, we could look on and say that the QC and Lord Justice of Appeal had a very different view. One modern… and one somewhat antiquated.

    I do however entirely accept the point raised that the court of appeal is more concerned with points of law than consideration of the merits of arguments concerning the judgment in a case. Isn’t it somewhat perverse that our family law verdicts are made on a ‘balance of probability’, while our criteria for a successful appeal are commonly that the verdict must be ‘plainly wrong’. More so that the inference that the Supreme Court would not hear a matter on child welfare because it is not sufficiently in the public interest. How high those lofty towers, to be so removed from the common man.

    Michael Robinson

  18. I think it worth reminding ourselves of a number of points:

    1] The criticism of the application of Payne v Payne is as strong from leading members of the legal profession. I can reproduce their comments if required (which are stronger than our own!);
    2] some of the strongest criticism comes from senior and much respected female members of the legal profession, somewhat defeating the view that it is only disappointed dads who are spinning the words of judges;
    3] 85% of solicitors in a debate held by the law society found that leave to remove was too readily granted;
    4] Mostyn’s view appears to be that there should be an urgent review of Payne by the Supreme Court. There is disagreement within the judiciary. He may only be a lowly high court judge, but he was the editor of Jordan’s International Law (so should be somewhat informed on the subject);
    5] As long ago as 2005, the courts of New Zealand discarded Payne v Payne as precedent as guidance in relocation cases, on the grounds that it contaminated the purity of the paramountcy principle (elevated the distress argument to too high a level within the balancing exercise);
    6] It is therefore arguable that Payne v Payne was made per incuriam, as the guidance post-dated the children act. On that basis, the Court of Appeal COULD dispense with Payne as precedent without the matter moving to the Supreme Court. Perhaps under a different President it might take a somewhat braver and more child welfare focused approach;
    7] No evidence exists to support that there is a greater risk to a child from a disappointed parent compared to risks which are associated with removal from one parent AND a dramatic change to the status quo for the child.
    8] Experts from 50 countries met in March 2010, and produced (quite excellent) guidance on what matters should be considered in when determining relocation applications. It is markedly different from the guidance that the UK courts are forced to follow.

    I say forced, because it is binding precedent. A trial judge must apply the criteria as set out in Payne when considering relocation cases. If that does preclude the court of appeal from granting permission to appeal, then a case will never reach the Supreme Court. Such would imply that the judiciary have neutered themselves when it comes to reappraising commonlaw (I believe otherwise, that they choose not to, as to change the law is to recognise that it is wrong, and in doing so, child welfare has been put at risk by the institution set up to protect it). Judicial discretion is so wide, that it appears at times to encompass every permutation of thought.

    The question here should not be ‘is a judge right to apply the law in this way’, but ‘does the law best serve the needs of children’. I can present evidence (and have at Westminster) to show that it doesn’t. The audience were not naive MPs, but to a large extent members of the legal profession. Heads were nodding. If I am being naive here, then I’d answer that the tail is wagging the dog.

    Parliament set out that the judiciary must consider a child’s welfare as the paramount consideration when determining the outcome of any CA case. If the judiciary are following guidance which does not take into account contemporary research, then it is also arguable that the Court of Appeal has a statutory duty to consider and issue new guidance. I appreciate that this may conflict with the rules of stare decisis (actually, I don’t, although this is what the judiciary are seemingly saying), but what is the law there for? To protect the status quo and welfare of children, or the status quo of a much criticised precedent, and the reputations of the judiciary who seemingly have no choice but to blindly follow it, or who wish to follow it due to a somewhat antiquated view of family life).

    Michael Robinson

  19. Stimulus says:

    Mr BD

    I note your response to my posting but unfortunately you have fallen into the trap that you seem to do so often and that is to twist the words of others to suit some meaning you wish to ascribe to them. I did not say I believed you were a member of Families Need Fathers, I said IF you were a member….. and hence I have made no assertions, unlike yourself when you said “It is perhaps little wonder why those students without the acumen to study the sciences at A-level opt for English and Law instead”.

    I am totally in favour of all people, regardless of allegiances, having recourse to the courts. I would not make generalised comment about members of any organisation being able to form rational arguments, but you have failed to make any cogent argument as to why your appeal should have succeeded. Your arguments are based on emotion and alleged scientific “evidence” which is not the basis for an appeal which must be brought within strict legal constraints. It may be that you were not properly advised as to the nature of an appeal and, if that was the case, then I can understand your sorrow and anger, but should those emotions not be directed at the giver of the advice rather than the President?

    You go on to state “IF, the role of the Court of Appeal is simply to determine whether or not a trail judge correctly applied current law”. Well yes, that is what I am saying and furthermore, I am saying that those who advised you should have told you as well, and prior to the appeal. If they did not, then they erred or, they may well have been trying to use your case as a test case, with or without your knowledge.

    If you accept that the trail judge correctly applied the leading case law, what was the legal, not emotional, basis of your appeal?

    Your quoting of Wall LJ is misleading, what he did say was:

    a. “there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent”

    b. “I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard.”

    c “the respondent makes a powerful case for relocation”

    d. “I am entirely satisfied that whilst the argument is a respectable one; (a) it was fully considered by the judge; and (b) this is not the case for a reconsideration of the principles in Payne v Payne”

    Those quotes are not the same as saying “Wall had “no doubt” that there was a “powerful” (Wall’s words) case for a review of Payne.” He placed strict parameters on where any appeal would be likely to lie. As a humble lawyer, I would not normally expect to have to point out such differences to a scientist.

    The way in which Payne can be tested has been dealt with by a previous poster, but Wall LJ is not obliged to act without haste as you suggest.

    I have not made a generalised attack on Families Need Fathers, and respect the work that many of the volunteers do. I do not resile from any comments made and I gather it has its fair share of internal problems.

    Do you have a more specific link to the “scientific evidence” as I do not wish to search the whole site?

    1. Mr BD says:

      Hello Stimulus

      I am glad that you have made your situation clearer, and that you have declared your respect for FNF.

      My comment about A-level students was plainly intended as a joke! I apologise if you were offended.

      With regards to Wall’s critique of Payne, do not overlook the comments he made in the ‘other’ Re D judgment of April 2010 (see above).

      I accept that Wall is not ‘obliged’ to act without haste. You are quite right – he is under no legal obligation whatsoever. However, I am suggesting that he has a moral duty to do so – for the sake of hundreds of children’s welfare – and that it is a disgrace that he chooses not to do so. In no other sphere of child welfare would such a significant risk of harm be acknowledged by the head of an organisation and yet not be urgently addressed. That is why I am sorrowful and angry with Wall. I would hope that others are too!

      I have addressed your other points in my reply to Mr Crowley.

      The scientific evidence appears in a report entitled “Family Law: Relocation: The Case for Reform” and can be downloaded here http://www.relocationcampaign.co.uk/

      Happy reading.

      Mr BD

  20. Byron Crowley says:

    Mr. BD,

    First of all, the erroneous premise to which I referred was not that the welfare of the child should be paramount in relocation cases (it is); rather that LJ Wall should have considered your “irrefragable scientific research” in reaching his decision. Again, you are completely misguided and misinformed as to the role of the COA. As an unrepresented litigant, that was understandable although it is disappointing that you were unable to avail of seasoned advice from any quarter in this regard before deciding how to argue your case.
    Unrepresented litigants have enjoyed success, even in the High Court and COA but they have done so by advancing the right arguments in the right place, at the right time. Passionate and sincere as you undoubtedly were, you singularly failed to do so.
    Furthermore, the Trial Judge, who was uniquely in a position to assess the facts and background of the case, would have heard the evidence presented (including this “irrefragable scientific research”) and decided that your case had less merit than that of the relocating mother.
    LJ Wall only could adjudicate on the issue of whether the trial judge, in reaching that decision, had erred or been plainly wrong in any respect.
    The conclusion was clear. In layman terms, your approach was that of an unskilled mechanic applying his efforts to a stubborn starhead screw with a 10mm spanner; doomed to failure, no matter how well intentioned.
    Unfettered press reporting of your case would have made not one jot of difference to the outcome.
    Please try and accept that,

    1. Mr BD says:

      Thank you, Mr Crowley.

      I accept that unfettered press reporting would not have changed the outcome of my own particular case. I never imagined that it would! Wall’s decision was final. My only recourse was to the ECHR.

      The objective of the general call for less secrecy in the family courts is to make the judiciary more open to public scrutiny and therefore more accountable, with the effect that judges are kept on their toes, and are positively encouraged to make better and more child-focused decisions, and that the legal system is thus improved.

      It’s a medium to long-term objective. Are you suggesting that unfettered press reporting is a bad idea in general? If so, why?

      With regards to Relocation law, you say that Payne serves the paramount interests of the child. I disagree with you. I say that it places too great a weight upon the wishes of the relocating parent and relegates the harm done to the child. So perhaps we can agree to disagree?

      You say that I am misguided as to the role of the COA. I have been told on this thread that the sole task of the COA is to assess whether or not the trial judge was plainly wrong.

      However, my understanding was that the COA ALSO has the role of assessing whether or not current laws require reappraisal, for example if they are presented with “compelling” arguments and evidence which indicate that there is a “powerful” case for such a review. Am I mistaken?

      The “compelling” arguments and scientific evidence in my case DID indeed have that effect on Wall. That was the thrust of the judgment in Re D.
      He accepted my arguments and evidence; and accepted that they warranted a review of Payne. Do you disagree?

      That he judged that my particular case was not a “suitable” case to allow through to the Supreme Court was unfortunate. But my work was done! I won the argument. I persuaded him of the need for a reappraisal.

      So, I respecfully disagree with you. I believe that I did indeed present the right arguments and the right scientific evidence to demonstrate that Payne no longer serves the paramountcy principle.

      In a sense, the particular details of my own case are irrelevant; from whom I may have got advice; whether I should have bought the services of a barrister; whether I presented my case at the right time and in the right manner etc etc. All of that is of little interest to anyone! Forget about my individual case.

      The important point is that the arguments and scientific evidence which I presented got through to Wall.

      Therefore, for the sake of child welfare, I would urge barristers to use those arguments and that scientific evidence in future LTR appeals.

      That is precisely why I say that Wall should have made the arguments and scientific evidence public.

      To use your analogy, Wall was persuaded that the broken-down car of Relocation law could be fixed with a 20mm spanner. But, remarkably, he kept his discovery secret! He decided NOT to tell any othe mechanic about the spanner.

      Had the press been able to report on the case, they would have been able to publicise the 20mm spanner, so that at least other mechanics would be able to use it to fix the car.

      Mr BD

  21. ian josephs says:

    Alistair Paterson
    NO the trouble is that the fact finding sometimes decides not just that a child has suffered significant harm but that a child is “ar risk of suffering significant harm” and more babies are removed for “risk” than any other reason.Predictions by highly paid charlatans (sorry experts?)break up families with monotonous regularity.
    Thank goodness they don’t extend the same principle to windowshoppers and arrest them in case they go inside and steal something.
    I would just love one of the QCs,Judges,and other distinguished lawyers who contribute to this blog using pseudonyms to answer just one question,yes just one !
    Why is the UK the ONLY country in the world to GAG parents whose children have been taken from them by public authorities???

    1. Alastair Patterson says:

      Ian,

      I know but it shouldn’t, that is the point I am trying to make. Baroness Hale was unequivocal in Re B, Parliament would not have put “suffering significant harm” in the act if likely to suffer significant harm was the only test.

      She also said that a real risk of harm must be founded on real facts and not on unproven speculations. The role of the court is to find those real facts, that is what courts do. They consider the evidence that should be presented in terms of the Framework for Assessment of Children in Need and their Families.

      Alastair

    2. Alastair Patterson says:

      PS CAFCASS intervened successfully against the Guardian’s position there a possible risk harm.

      The technical reason for all these problems is that social workers use the wrong child protection risk factors. Social workers use the risk factors for the presence of abuse, that are intended to trigger an investigation, for what the probation service describe as offender management risk assessment.

      Again as Baroness Hale observes in Re B, they use the risk factors for “cause to suspect” in s47, not those for for “likely to suffer”.

      When an offence is proven as a matter of fact the s31(2) question is:
      what is the risk of re-offending. That is why there must always be a finding of fact of suffering significant harm, and the likelihood of suffering significant harm is the risk assessment of that harm re-occurring. s16A explicitly says “cause to suspect” followed by an assessment of the risk of THAT harm.

      Alastair

  22. Jim Nately says:

    Mr BD,

    I forget who said it, but it was said that in relocation cases there is no right answer, only two wrong ones. All that can be done is determine which of the two wrong answers does the least harm in the long term.

    You asked how Payne would be overturned. I can, to an extent, answer that. First, you need a case where the factors in favour of allowing the relocation and the factors in favour of preventing the relocation are so finely balanced that the question of the benefits of having regular contact with both parents would tip the balance. In all likelihood, this would either be a case where the responsibility for caring for the child was split about 50:50(ish), or where the decision of the primary carer to leave was capricious or did not have an impact on his/her general mental well-being and ability to care for the children. And, obviously, the evidence would need to have been adduced.

    From there, the case could go one of two ways. If it comes from the Family Division of the High Court, an appeal can be granted straight from the High Court to the Supreme Court (the leapfrog appeal). If it comes via the County Court, either the District Judge can grant permission (which, in light of the comments in your case, isn’t as unlikely as it might seem) or via the permission proceedings in the Court of Appeal (and again, if such a case were presented, Wall’s comments should give rise to belief that this would happen). The Court of Appeal hearing would largely be a formality (although potentially an interesting opportunity for the CoA to offer their opinion), after which permission to appeal would be sought from the Court of Appeal (who, in the circumstances, would almost certainly grant it), or the Supreme Court.

    At which point, you’re in the Supreme Court. I would imagine that an estimate of about eighteen months or (hopefully) less is probably about right, depending on the route taken, as all the courts would want to resolve the instant case as quickly as possible and would probably make space on the list for that case.

    I must add that I think that you may overestimate the importance of a re-evaluation of Payne. There can be very few cases where the benefits of a few hours or a day of contact time each week with the children can outweigh the damage caused by being cared for by a parent increasingly depressed and unhappy about being forced to remain in the country. That is the unhappy balancing act at the bottom of each case. And, so far as I can tell, the research into the question of contact does not—indeed cannot—address this question, because each situation turns on its own facts. I am skeptical that adjustment to Payne would be more than just an adjustment, and that it would determine the outcome in more than a small handful of cases.

    For what my opinion is worth (which is essentially nothing!), I would strongly approve of the Supreme Court reconsidering Payne. And, you are quite correct to say that, if your case (or any other case with an LIP) went to the Supreme Court, you would be able to obtain counsel willing to work on a pro bono (i.e. free to you) basis. In all fairness, would expect you would have been able to obtain free representation through the Bar Pro Bono Unit for a Court of Appeal hearing, and quite possibly for the permission hearing.

    I should add that I appear to have made a mistake on the question of LIPs. I read the judgment in your case as saying that you had actively refused representation, which in light of your comments appears to be wrong and for which I apologise. Unfortunately, some people do refuse representation (even if it is free), because they believe their lawyers will ‘deliberately’ lose their case. For example, the rather sad case of RP involving John Hemming, when the mother declined free representation provided by the Bar Pro Bono Unit in favour of Mr Hemming’s advice (which turned out to be useless when he subsequently made a complete hash of her appeal), or indeed the position Ian Josephs takes on his website. Not least because those cases invariably wind up lost too.

    JN

    1. Mr BD says:

      Dear Mr Nately

      You are quite right to say that relocation cases are a matter of assessing the least disruptive outcome for the child. However, it does not necessarily follow that the ideology and suppositions in Payne actually serve to attain that outcome!

      Do you at least acknowledge that, whilst you – or rather Wall – seeks out this hitherto elusive “suitable” case, large numbers of children are open to significant harm due to the continued implementation of Payne? If a child is drowning, one doesn’t spend 10 hours selecting the most “suitable” rope to throw out to him!

      It is a matter of great regret and embarrassment that the judiciary continues to sit on this matter when there has been considerable criticism of Payne from many erudite quarters, including Mostyn J, Prof Freeman, Thorpe LJ and even Wall!

      With regards to your “suitable” case, it is very rare for two parents to have an approximate 50/50 division of time with their child. Usually, one parent assumes a greater role at work. The scientific evidence (the veracity of which very few contributors on this thread seem willing to accept) demonstrates, beyond all reasonable doubt, that children benefit significantly from having a meaningful relationship with both parents EVEN if one parent is predominantly at work. The difference between a child of having alternate weekends and weekly mid-week contact with one parent, versus the child being removed to Australia is immense.

      With regards to the motivation of the relocating parent: if the court finds that the motivation is not genuine, s/he will not be given permission to remove the children. Case closed.
      I would argue that EVEN if the motivation is genuine, it does not necesarily follow that removal is in the best interests of the child. Mercy killers have genuine motives. Jehovah’s Witnesses, refusing their child a blood transfusion, have genuine motives. Should people with genuine motives always succeed in getting what they want?

      The impact of refusal upon an applicant is the single most effective “tool” used by barristers in order to get an LTR decision for their clients.
      This is determined NOT by scientific evidence (in 40 years, no scientific has ever been advanced to support this so-called “distress argument”).
      Nor need it be supported by any medical evidence pertaining directly to the applicant – the judges have rule that NO medical evidence is necessary!
      It simply comes down to the physical appearance of the applicant in the witness stand, in terms of tears, body language, verbal expression etc.
      A barrister working for an applicant for LTR will do well to advise his client to turn on the water works. I have put it very crudely, but, remarkably, that is exactly what matters! The fact that any parent would reasonably be expected to exhibit much upset in the extremely stressful environment of a courtroom, with all that is at stake, seems lost on the judiciary!

      Furthermore, what of the emotional upset of the child, after having been removed from his father, his extended family, his friends, his school and teachers, and his entire way of life? Their upset remains very much hidden from view.

      Mr BD

  23. Byron Crowley says:

    BD,

    The premise you started from was, as I stated, erroneous and you continue in that vein. As others have pointed out to you, the research you presented was not an appropriate ground for appeal and LJ Wall was quite right to dismiss your appeal; it was void of legal merit. Neither is such research “irrefragable;” that adjective being as misplaced as the grounds you would have had LJ Wall accept for appeal.
    I have read the ruling and it is clear that you failed to advance any arguments that would have been upheld by an Appellate Court.
    Your arguments are more appropriate for debate in the media, seminars, lectures- parliament even but not the C.O.A.
    P v P notwithstanding, I would consider it unlikely that your particular case would have succeeded in any event.
    That must, understandably, be a difficult and bitter pill to swallow but you should at least consider the possibility that the Trial Judge, faced with a dilemma reached the only conclusion open to him on balance.

    1. Mr BD says:

      Thank you, Mr Crowley

      Whether or not being separated from my children is a difficult ‘pill to swallow’ is quite beside the point (although I do thank you for your empathy).
      What we are debating here – thanks to the editors of this blog – are the merits of Payne, and whether this law is genuinely serving the paramount welfare of hundreds of children.

      Perhaps we shall have to agree to disagree regarding my premise, that relocation law should serve the genuine paramount interests of the child.

      With regards to your evaluation of my arguments in Re D, your conclusion that Wall was right to dismiss them, and your judgment that they would not have succeeded at the Supreme Court: do you actually know the full extent and detail of all my arguments??? Did YOU attend my hearing (the same criticism being levied at Booker)?

      I can advise you that there were a number potent arguments which, because they were very specific to my case, neither I nor the media present at my hearing were permitted to disclose, due to court secrecy rules. The FNF press release stated exactly that point.

      You have read Wall’s judgment, but you have not had the benefit of hearing the ‘full story’.

      Quite naturally, perhaps, Wall “omitted” from his judgment details of any arguments which would have undermined his reasoning. You have heard only one side of the case – Wall’s. Does that leave you in a good position to judge the merits of my case?

      I rather suspect that you are far too willing to place 100% faith in Wall’s judgment. You are acting, in effect, as his disciple.

      I would urge you to exhibit more independence of thought: question your superiors. Question, question, question!

      This ties in neatly with the original topic of this thread – whether or not the press should have the right, not only to attend hearings, but also, far more importantly, to report on any arguments and/or evidence which goes un-mentioned in the judgment.

      Only with such unfettered press freedom can the public properly evaluate whether or not judges are making the right decisions on behalf of the children of this country.

      At the moment, court reporting is tantamount to the public being spoon-fed the views of the judge.

      Transparency and accountability or no transparency and accountability, that is the question.

      Mr BD

  24. Stimulus says:

    Mr BD I think you are being disingenuous. If you are indeed a member of Families Need Fathers, did you not attend its AGM when Wall LJ gave a widely publicised speech which included the following comments:

    “51. In the particular case with which I had to deal, I came to the clear conclusion that the judge had given a conscientious and careful judgment, which made no error of law, and which reached a result which was plainly open to the judge. However, I went on to deal with whether or not there was a “compelling reason” for the Court of Appeal to hear the case
    …….. There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done to children by a permanent breach of the relationship which children have with the left behind parent.
    As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard. The question, to my mind, is twofold: (1) has the time come to reconsider Payne v Payne; and (2) is this the right case? I propose to concentrate on the latter question, since in my judgment both have to answer “yes” if permission to appeal on this ground is to be granted.
    In my judgment, this case is not the right case for a challenge to Payne v Payne. In the first place, on the facts, the respondent makes a powerful case for relocation. Secondly, there is currently no legislation requiring a different approach in place, with the consequence that were this case to go the Supreme Court it is probable that – were the Supreme Court to take the view that insufficient consideration had been given to the harm likely to be suffered by the children by relocation and alteration of their current way of life – the Supreme Court would order a re-trial, rather than saying that the judge, in the exercise of her discretion, was plainly wrong. In my judgment, it is contrary to the interests of the children to impose a fourth hearing on this family.

    52. All in all, therefore, I was entirely satisfied that whilst the argument is a respectable one; (a) it was fully considered by the judge; and (b) this was not the case for a reconsideration of the principles in Payne v Payne.”

    A perfectly respectable argument does NOT equate to a successful argument. It means no more than it is worthy of consideration. Wall LJ gave you time and considered your arguments and felt they fell short of what was required. he also thought mother advanced a “powerful” case for relocation Clearly the trial judge and Wall LJ considered those more powerful than your own even though that was not Wall’s primary consideration which was did the trial judge make some fundamental error which rendered his decision invalid.

    There are clearly a number of self-publicists in Families Need Fathers who make money from repeating tired arguments in order to obtain a salary or earn money from sundry websites that are loosely associated with that organisation. You probably used the generic arguments peddled by one of the primary lobbyists on this issue. He fails to understand that each case is specific and generic arguments are bound to fail.

    if you think the “scientific” “evidence” you presented is so important then it is not only relevant in your case it is relevant to all cases and therefore does not need to be published with the judgement. It such “evidence” is so compelling, then publish it without the judgement and we can all learn how we should conduct cases in future.

    1. Mr BD says:

      Hello Stimulus

      Thank you for your considered reply.

      What makes you believe that I am a member of Families Need Fathers? Do you think it is sensible to make assertions about people? What difference would it make to the rational debate concerning Payne and to Wall’s use of court secrecy rules, if I WAS a member of that particular Government-funded charity? It rather sounds like you are making the assumption that anyone who happens to be a member of FNF is not permitted to advance a rational argument? I hope I am mistaken! I don’t wish to do you a dis-service.

      I am aware of the speech Wall gave to FNF last year. I wasn’t present – if that piece of information happens to be important to you. Wall refered to me as the father who “launched a root and branch attack on Payne”.

      You have simply repeated much of what has already been said in this thread about Re D. However, questions still remain…

      IF, the role of the Court of Appeal is simply to determine whether or not a trial judge correctly applied current law (regardless of whether or not it is failing child welfare) then Wall was right to refise permission. I concede that the trial judge correctly applied Payne, and, as a consequence, gave great weight to the “distressed mother” argument advanced by her team of lawyers and barristers. She also gave relatively little weight to the harm suffered by children in losing meaningful contact with the left-behind parent. The trial judge correctly applied the ideology and suppositions of Payne.

      My argument goes deeper. IF, as I have already said, Wall had “no doubt” that there was a “powerful” (Wall’s words) case for a review of Payne, how is that to be tested? Are we to wait perhaps ten more years before Wall finds a “suitable” case? What of the precautionary principle? Is Wall not obliged to act without haste?

      Your attack on the charity FNF, and those who work within it, is frankly not worthy of you. Try to stay forcused on child welfare issues.

      I have indeed posted the arguments against Payne (see the Marilyn Stowe legal blog at http://www.marilynstowe.co.uk/2011/04/15/external-relocation-when-a-parent-wishes-to-move-overseas-with-a-child-what-rules-apply-by-guest-blogger-laura-guillon/)

      The scientific evidence can be found at http://www.thecustodyminefield.com

      I hope you, and other barristers, DO indeed make use of my arguments and the scientific evidence available to help make relocation law better for child welfare. Good luck.

      Mr BD

  25. Mr BD says:

    Dear Mr Nately

    Thank you for your reply above. I can assure you that I read your comments very carefully indeed. I apologise if you gained a different impression.

    I hope I have managed to address a few of your concerns in my reply to Mr Crowley.

    I am not a lawyer, and must therefore necessarily bow to your evident expertese of legal proceedure.

    Let me ask you this very simple lay-person’s question…

    Let us assume, for one moment, that the principles, suppositions and ideology of Poel/Payne no longer serve the paramount welfare of children; place too much weight on the wishes of the relocating parent; relegate the harm done to the child by the curtailing of the relationship between the child and its left-behind parent; and do not take into proper account contemporary scientific research regarding child welfare.

    How would the judiciary go about rectifying such an abominable situation? How fast could this happen?

    Put simply, Wall was aware of the “problem” in February 2010, but the “legal system” has not yet managed to come up with a “solution”.

    In the meanwhile, hundreds of children have continued to be removed overseas.

    Are you proud of the “legal system”?

    With regards to Re D, you say that Wall doubted the success of any re-trial of my case by the Supreme Court. That was indeed his judgment.
    Wall stated his view that the mother had made a “powerful” case for relocation, but his view was, of course, based upon the exisitng principles and ideology of Payne (to which Wall was bound).

    My question to you is…how could he have been so certain?

    He had assessed the probability of success upon the existing Payne criteria. But, of course, following a reformulation of Relocation law by the Supreme Court – incorporating contemporary scientific evidence and fully recognising the importance of 21st century fathers in the lives of their children – the new criteria may well have rendered Wall’s view obsolete. Have you considered this?

    With regards to the cases taken on by the Supreme Court. Are you suggesting that the welfare of the children at the centre of 1200 or so relocation cases each year is not important enough? Wall does, and that is why he has suggested that the Supreme Court could rule on it. I would disagree with you. I would argue that a reassessment of relocation law is of significant public interest. I have seen some very obscure cases heard by the Supreme Court, having far less importance than child welfare! You have too, I am quite sure!

    You are, if I may say, rather disparaging of LIPs. After all, I did rather well, wouldn’t you agree? What other barrister has achieved as much in relocation law? Can you name him/her?
    IF the matter went to the Supreme Court, and IF it was considered that the welfare of hundreds of children in relocation cases WAS of significant public interest, do you not think that any LIP ought automatically to be appointed a barrister, free of charge? Or perhaps that one would step forward to offer his services FOC in the interests of child welfare?

    What would you say IF another relocation case went before Wall and it was considered by him to be a “suitable” case to progress to the Supreme Court for a reassessment of Payne. BUT the litigant was in person and was unable to afford a barrister. Would you suggest that Wall refuse him permission??? The issue of finance is not a strawman, as you suggest. Money is, and always has been, necessary to gain justice. Justice is bought. As my judge stated, the law, like the Ritz, is open and available to everyone!

    Mr BD

  26. Alastair Patterson says:

    For a human rights blog, I find this depressing beyond belief. It is axiomatic to the Convention that rights can only be interfered with on findings of evidential fact.

    Baroness Hale has made this quite clear in Re B. The only finding of fact in children’s proceedings is that the child has suffered significant harm.

    It is the lawyers who need to shape up. Yes, they need to do the best for their clients in the reality of the county court but statute is unequivocal, until a child has suffered significant harm as a matter of evidential fact the parent is untouchable.

    Confidentiality is no more than medical confidentiality, unless the child is Gillick competent the parent is entitled to disclose their medical records.

    Alastair

  27. Byron Crowley says:

    Mr. BD.

    You appear to have started from an erroneous premise and postulated much.
    LJ Wall has not executed a “u-turn.” He has qualified remarks made during the case. That he has done so is understandable, given the crass exploitation of his musings from some quarters.
    You are similarly mistaken as to the weight you feel he should have been given to “scientific evidence.”
    Put simply, such considerations are not for the Appellate Court and an appeal predicated on such considerations might justifiably have been rejected at the first instance.
    Considerable forebearance was shown by LJ Wall in allowing this appeal in the first instance and it is difficult to see how any grounds for an appeal to the Supreme Court could have been identified, never mind allowed.

    1. Mr BD says:

      Dear Mr Crowley

      The premise I start from is that family law should genuinely serve the paramount interests of the child, obeying the clear instruction given to the judiciary by Parliament in the Children Act 1989.

      Suppositions regarding the paramount interests of the child in relocation cases were originally pontificated upon in 1970, in the case of Poel v Poel.

      Those suppositions were made by judges who, themselves, were born in the time of Queen Victoria.

      Suppositions regarding the role of a father as a financial provider, rather than as any kind of nurturer; assumptions regarding the emotional fragility of the weaker sex, and of their God-ordained role as nurturer.

      Sadly, those arcane suppositions STILL form the bedrock of British Relocation law. To paraphrase Thorpe LJ – a primary architect of Payne v Payne (2001) – “we were simply relying on what had gone before [in Poel]” (see his interview on BBC Radio 4 last year, in response to the powerful judgment given by Mostyn in Re AR).

      My basic argument to the trial judge was that times have moved on since 1970. “Common sense” notions have dramatically changed since then. There now exists a plethora of irrefragable scientific child-welfare research (not available at the time of Payne) which demonstrates, beyond all reasonable doubt, that children fare significantly better emotionally, developmentally and educationally when they are permitted to maintain a frequent, regular and meaningful relationship with both natural parents. I presented those arguments and that evidence to the trial judge.

      The trial judge declared that it was simply not open to her, sitting as a circuit judge, to go against the principles, ideology and suppositions of Payne.

      That is precisely why I took the matter before Wall. You suggest that Wall was right not to give weight to the “scientific evidence”. I disagree with you. I suggest that in order to assess the paramount interests of a child, the judiciary MUST give greater weight to verifiable and irrefragable scientific evidence concerning child welfare, rather than relying predominantly upon the pontifications of a judge in 1970.

      As a scientist, I automatically give greater weight to verifiable scientific evidence rather than to personal opinion (albeit that of a 1970’s High Court judge). It is perhaps little wonder why those students without the acumen to study the sciences at A-level opt for English and Law instead! (… I apologise for this rather nasty comment!).

      The serious and important point for you to absorb is that, upon reading my arguments and reading the scientific data, Wall became convinced – and had “no doubt” – that there was a “compelling” case for a reappraisal of Payne.

      Furthermore, his public critique of Payne was not merely “some words of mine spoken in a judgment”, as he now disingenuously puts it. His comments were not simply “musing” as you put it! And are you seriously suggesting that his comments were the subject of “crass exploitation” by Professor Freeman, Mostyn J, Family Law Week and Family Lore, as well as a dozen legal firms (google Re D to see them)??? Come on now!

      Wall had reserved judgment in Re D, gaving himself three weeks in order to “carefully” consider the arguments and the scientific evidence. One cannot say that his judgment was rushed!

      In making Re D public, it is plain in the extreme that Wall was pro-actively notifying the legal community of his “carefully considered” judgment that Payne was up for a review.

      That he has now backed down from his 2010 position is simply ludicrous. I am awaiting the view of Lord McNally and David Norgrove on this matter, and will happily let you know the outcome, once received.

      Finally, it would appear that you may not have read the judgment. If you had, you will have discovered that Wall did NOT actually give permission to appeal (contrary to your statement).

      Mr BD

  28. JMR says:

    I’ll give you bit more about why this judge is worried: he knows he made a bad decision and can’t defend it on the evidence!!! Let’s go over the reliability of it.
    testimony 41% expert is actually lower than this.
    calcium test 95%
    Variegated bruising 98% indicates metabolic problem
    So what we have here is a judge who refuses the reliable evidence and
    gives heavy weight to lesser evidence. Guess what I just saw a recently published study that indicated that’s how humans make bad decisions.

  29. Public Outcry says:

    As a lifelong Millwall supporterI do resent the slur against Millwall, please do not liken us to social workers, we haven’t sunk that low

  30. Public Outcry says:

    Furthermore, the Judges are changing in their attitudes, I have been in the court room when a Judge censured savagely a senior practioner and wrote such a withering letter to that workers director that the worker was given the choice of resignation or the sack.

    When I moved to this current area, I was set upon by another worker who it turned out was a protege of the first, that worker in the end too was given the choice of the sack or leave.

    Of the 13 or so workers I have had assigned to me, I can say that I have endured much, from a worker violating my child by giving a genital examination in a public area after my ex wife claimed evidence of cigarette burns, to the deliberate destruction of my marriage, not once, not once in 16 years has there EVER been any evidence or even the slightest indication that I am a bad person, an abusive person or one that has ever caused harm to a child, even in my current fight, I wasn’t even named in the statement of findings but they got in one of their “Freddy Patels” and now I am the maddest, most evil of people despite quite a few in the process saying the opposite.

    As for Booker, I would not condemn him out of hand too swiftly, he is one of the few, very few journalists that actually shows support for the people being abused by the system, it does look like the facts were not quite right and of course that is a cardinal sin for a journalist but people do have to understand the whole situation, not just one facet of it, the media remain very silent on the abuse going on and if it were not for the Bookers and the Jardines, the Denise Robinsons out there, then this whole scandal would be buried which is what SSD’s would like very much.

    And we do have to remember the good workers caught in a bad system, sometimes having to obey orders and directions from managers that are either clueless or have their own hidden agenda, this is why only the bad seem to stay in the business because the good workers are driven out of child protection, if they query they are marked down, if they go against council policy, they are pilloried, SSD offices are hugely political and if it is under the control of a bad leadership, the front line workers can get away with everything, no manager will seriously investigate complaints and will help, collude with the accused worker to clean their tracks, this is criminal and it goes on every day.

    But I will be telling my story to Christopher, I can back up everything I will tell him, I want my child’s story to be heard, 15 years of incompetence, lies, perjury, abuse and worse at their hands, the disinfectant of sunlight is the only cure to expose what really goes on.

  31. Public Outcry says:

    Having much experience of the “system”, I can verify much of what Ian says does indeed happen, in my own particular case, I put a negative remark about the local SSD on a website and it contained no threat, name, place or direct reference to that SSD and they still cancelled my contact yet it was not subjudicious by any manner shape or form.

    The “system” is very corrupt, in that social workers do not have to evidence one item in their statements yet parents have to prove to a criminal court level their own statements, a dirty trick too is that parents are only allowed to present their final statement a month before the final hearing and usually the SSD’s solicitors and barristers move to make their evidence and statements historical whilst social workers and guardians can and will report and make statements at every hearing, whether a directions or other, this is terribly imbalanced.

    A social worker can lie, perjure, mislead, bury facts and get away with it as they all hide under the banner of “the childs needs are paramount”, it is a crazy situation where a childs needs demand a public servant lie and build a case around erroneous and false information, that it smacks of intent to rob the parents of their child and the child of their parents, yes there are bad people out there who do wicked things but these people seem always to be low priority for social workers, they in fact home in on weaker targets, for every child they adopt they get extra cash, brownie points in the forms of ratings stars which in turns means even more money.

    Whilst I don’t agree with Ian’s modus operandi and we used to sit at the same tables once upon a time, he is ABSOLUTELY right about what they do, they know which “experts” to call in, every social services department have a list of “Freddy Patels” to call upon, since schools have come under the command of social services directors, they too have become peons subservient to the social workers wishes, what is alarming is the collusion between all members of the process, it was shown by someone who infiltrated an Essex judiciary committee that social workers, children panel lawyers, Judges sat there and worked out how to silence and end troublesome case and parents deemed as “annoyances”.

    The government needs to bring in the equivalent of PACE into the family courts, it is not good enough that mere supposition can be meted out as guilt or proof of guilt, isn’t it time the same burden of proof that criminals work under be applied to the family courts? Why are social workers allowed to break the law and evade justice?

    And remember adoption is big, big business now and many people in SSD’s have undeclared interests as do foster carers and other independents, when the directors of the BAAF divvy up a pot of 2 million pounds between them as a bonus one year, this shows the real reasons why so many children are stolen every year, the BAAF shows profits and I mean PROFITS of millions, that is money taken from every taxpayer, social workers also run up the most horrendous legal bills that is also footed by the state as is the legal aid for the parents, I once discussed with Jack Frost who exposed the BAAF’s huge profits that we believe that the true cost caused by frivolous and unwarranted interventions by social services is costing HUNDREDS of millions of pounds to the state, that is something that really needs a brake put on and if the same burden of proof employed by the criminal courts were applied, this would do much to stop vexatious and frivolous court cases.

    Finally, it is important that a criminal responsibility and a liability be placed on social services across the land, that if a social worker perjures themselves, they face the same penalty as any one else, that if a social worker is found to have deliberately acted unprofessionally, that they and their department be liable for damages to the child AND the parents, if the burden of proof doesn’t tame them, then the prospect of being sued into oblivion for failing or acting maliciously will ensure that they do a proper job.

    1. Alastair Patterson says:

      There is a PACE, it is the statutory guidance Framework for the Assessment of Children in Need and their Families (Department of Health 2000) and reported to the court in accordance with Children Act 1989, Guidance and Regulations, Volume 1, Court Orders, 2008.

      The Supreme Court has said that it must be followed.

      It is not quite statute, but the SS must declare a good reason in their local circumstances not to follow it.

      Alastair

    2. Bagpuss says:

      Any social worker who perjures themself **does** face the same penalty as anyone else who does so, and woud also lose their job. However, having a different opiion to that held by a parent, or even making a mistake, are not the same as committing perjury.

  32. ian josephs says:

    All this talk of protecting celebrities…. Should we not turn instead to the gagging of oppressed UK parents ?
    There is only ONE country in the whole world where government agents regularly take away mothers’ new born babies and toddlers for” risk of emotional abuse”,and threaten them with jail if they protest publicly .
    That country is THE UK !!!!! What shame,what disgrace,the cradle of democracy the only country in the world to kidnap children and legally gag their mothers ! Who should be punished ? Well,I say the social services and the judges who misinterpret the much derided Human Rights Act and use it as an instrument of repression by the State instead of the protection of family life that it was clearly intended to be !

  33. Mr BD says:

    Dear Mr Jenkins

    Sir Nicholas Wall happens to be the President of the Family Division of England and Wales. Surely, his actions and/or omissions are of infinitely more importance than those of a newspaper reporter? The buck stops at the top, doesn’t it?

    Wall did indeed make his judgment in Re D public. Why would he have done so, if it wasn’t to make the legal fraternity aware of his criticism of Payne? Can you think of any other reason?

    Professor Freeman – a highly-respected professor of family law – stated, in a speech in March 2010, that Wall had added his “qualified support for a review of Payne”. Do you think that she was mistaken?

    Many other legal commentators reached the same conclusion about Wall’s carefully considered comments. Were they all wrong too, in your opinion?

    Do you think that Wall has properly explained his U-Turn on Payne?
    Do you think that he should provide a comprehensive answer?
    He reserved his judgment in Re D and took three weeks to “carefully consider” the arguments and scientific evidence against Payne. If he made a mistake, as you say, what does that say about his judgment?

    The point I seek to make is that unless and until the public gets access to the ‘full story’ – through less restrictive media reporting – it cannot properly evaluate Wall’s – or any other – judgment.

    Can you evaluate Wall’s judgment without having access to the general arguments against Payne and to the 15 contemporary child-welfare research papers exhibited?
    In short, the research demonstrates, beyond all reasonable doubt, that children’s optimal development is best secured when they are permitted to have a close, meaningful, frequent and regular relationship with both their parents.
    This is impossible when children live many thousands of miles from one or other parent.
    This research was not available to Butler-Sloss and Thorpe in Payne v Payne. Wall’s judgment in Re D ignored this research, and instead relied upon the so-called “distress argument” of the primary carer. There is no scientific evidence to support this “distress argument”: it is mere judicial opinion, originally pontificated upon in 1970, at a time when women were considered “emotionally fragile” and when it was considered that father’s were unimportant for the successful development of their children.

    If Wall’s judgment in Re D was wrong, how would the public ever know??? How would it ever be able to evaluate???

    It is a matter of fact that Wall refused to permit the general arguments and scientific evidence to be made public. I know because I was the LIP who asked him for permission. Why do you think he refused? In your opinion, would it have helped the debate if he had permitted the reporters present to publish the general arguments against Payne and the scientific evidence which showed that Payne was out-of-date?

    That, in my opinion, is at the crux of the current debate regarding the right of the media to report on court proceedings. There is an “injunction” against reporting on family cases which serves to protect the judiciary against public scrutiny. That is Mr Booker’s basic argument. Do you disagree?

    Furthermore, Wall states that it is for the Supreme Court to reappraise Payne, but he conveniently fails to tell you that no case can ever go to that higher court without the express permission of the Court of Appeal! Permission which he and his colleagues refuse to give. Furthermore, the Court of Appeal is unlikely ever to give permission, as it is, itself, completely bound by the principles and ideology of Payne. If a first instance judge correctly applies Payne – even if it is to the detriment of the child, according to contemporary science – the Court of Appeal cannot interfere with that judgment!
    It’s not a conspiracy, as you suggest.
    It’s a legal “blockage” which the judiciary are unable to un-block, because the principle of ‘precedent’ compels them to blindly follow Payne.
    For the full argument see http://www.relocationcampaign.co.uk

    Mr BD

    1. Jim Nately says:

      The problem with your arguments is that you elide a myriad of issues. It won’t get anyone anywhere.

      For one, and I cannot state this more clearly, the reason Wall P refused permission to report the ‘scientific evidence’ is that it had no relevance to the permission hearing. Permission hearings are not the place to raise ‘new’ evidence, that is (with certain qualified exceptions that do not apply here) a matter for the trial court. The purpose of the permission hearing is, basically, to decide whether there is an arguable point of law and, to a lesser extent, check that the transcript of the evidence heard at trial supports the disposition. That is all. It is not a rehearing. It would have been grossly inappropriate for Wall to go further.

      Let us be frank here. The only reason to report on that evidence in the context of the permission hearing is to write negative stories about how ‘judge(s) refuse(s) to hear the evidence’. If it were a trial, that would be (thereabouts) legitimate. But, as that is not what really happened, that doesn’t help further a public debate on Payne. And it is eminently sensibly to head that kind of nonsense off at the pass.

      The simple fact is that reporters, and the people who write PR copy for Families Need Fathers, can write about research that indicates that Payne is no longer appropriate. The fact that Wall P felt that it should not be reported in the context of your permission hearing does not change that. In fact, insofar as that evidence is only tangentially related to that permission hearing, it doesn’t really matter. Write away.

      On the question of the how Payne would be reassessed, there are three points. For one, Parliament has the option of legislating. Second, one part of the reason Wall P felt yours was not an appropriate case to send to the Supreme Court was that you had declined representation. The Supreme Court is not really an appropriate place for an LIP as the arguments are necessarily technical. Finally, reading the judgment in your case, it does look as if the Court of Appeal would countenance a re-evaluation of Payne in a different case.

      Again, the point about what you call the ‘U-turn’ of Wall P is very simple. He criticised Payne. Some lawyers and judges interpreted this as having substantial legal weight. Wall P did not intend this to be the case. He clarified his position. In the context of how the Court of Appeal binds itself, this could have been anticipated.

      1. Mr BD says:

        “I cannot state this more clearly, the reason Wall P refused permission to report the ‘scientific evidence’ is that it had no relevance to the permission hearing. Permission hearings are not the place to raise ‘new’ evidence”

        a) the child-welfare scientific evidence WAS presented to the trial judge. It was therefore not ‘new’ evidence.

        b) the scientific evidence was wholly relevant because the judiciary is ORDERED by Parliament to consider the paramount interests of the child. If there is irrefragable scientific psychological and sociological evidence which shows that child welfare is best served by maintaining a frequent, regular, close and ‘meaningful’ relationship with both parents, how can you possibly argue that it had no relevance in Wall’s determination of the paramount interests of the child???

        “The only reason to report on that evidence… is to write negative stories about how ‘judge(s) refuse(s) to hear the evidence’.”

        Yes. I agree with you. If a judge disregards evidence, which should have been given greater credence and weight, then it is the role of a free and unfettered media to report on the mistakes of judges. What you seem to want is that judicial mistakes and omissions continue to remain hidden.

        “The simple fact is that reporters, and the people who write PR copy for Families Need Fathers, can write about research that indicates that Payne is no longer appropriate. The fact that Wall P felt that it should not be reported in the context of your permission hearing does not change that. In fact, insofar as that evidence is only tangentially related to that permission hearing, it doesn’t really matter. Write away.”

        I disagree. It matters very much. The scientific evidence has already been known to the judiciary for quite some time. Mostyn J refered to it in Re AR. Furthermore, even if the scientific evidence appeared on the front page of every broadsheet, every day of the week, it would matter not one jot. The (very sad) fact of the matter is that UNLESS AND UNTIL that scientific evidence is presented to the Court of Appeal in the context of an appeal case, the law CANNOT be reappraised. Wall himself made this point – he stated that he had “no doubt” that there was a “compelling” case for a reappraisal of Payne. He described the argument for a review as “powerful”. BUT he stated that until he found what he described as a “suitable” case, nothing could be done! So, while the judiciary’s hands are tied (by precedent), hundreds of children continue to be removeed overseas by an out-of-date law. Do you think this is sensible? I think it is a matter of great shame for this country.

        “On the question of the how Payne would be reassessed, there are three points. For one, Parliament has the option of legislating. Second, one part of the reason Wall P felt yours was not an appropriate case to send to the Supreme Court was that you had declined representation. The Supreme Court is not really an appropriate place for an LIP as the arguments are necessarily technical. Finally, reading the judgment in your case, it does look as if the Court of Appeal would countenance a re-evaluation of Payne in a different case.”

        Parliament has stated – in a letter to me from Lord McNally in December 2010 – that it has “no plans” to review Payne. Why? Because, according to McNally, the judiciary has ALREADY been instructed by Parliament to consider the paramount interests of the child!
        You are plain wrong about the reason why Wall refused to give permission in my case. The reasons he gave are a) the mother made a powerful case for relocation and b) delay was not in the best interests of the child. Wall did NOT use the fact that I was a LIP to decline permission to appeal (I have no doubt that this was a private reason of his for refusing permission, but he would have been a fool to state this in public). With regards to a) of course, when Wall viewed the case through the out-of-date lens of Payne, the mother’s case was indeed perceived as being powerful. However, had the case been viewed through the lens of a new child-centric law based on contemporary scientific evidence, it would not have been described as being ‘powerful’.
        With regards to the issue of delay, Wall had no evidence to suggest that the delay inherent in progressing to the Supreme Court would have inflicted more harm on the children than actual overseas removal. His rationale will continue to impede all relocation cases from progressing to the Supreme Court, because the ‘delay’, according to Wall, will always be to the detriment of the child.
        Why would the Supreme Court not be a suitable place for a LIP? Do you not believe that justice should be available to all, regardless of financial means? Is justice to be had only by those who can afford a team of barristers? I don’t wish to blow my trumpet, but I would say that, as a LIP, I did more to over-turn Payne than many a qualified barrister! Barristers, intent on career progression, are perhaps less willing to challenge the authority of the judiciary than LIPs.

        “[Wall] criticised Payne. Some lawyers and judges interpreted this as having substantial legal weight. Wall P did not intend this to be the case. He clarified his position.”

        Wall made Re D public in order to tell the legal community that there was a “compelling” case for a review of Payne, and that he wished to be presented with a “suitable” case which he could send to the Supreme Court.
        What is your explanation for why Wall made Re D public? Can you conceive of any other explanation?
        What is your explanation for why Wall re-iterated his criticism of Payne in a second judgement in April 2010?
        What is your explanation for Wall to state, in August 2010, that he was “delighted” with the attention received by Re D?
        YOU say that Wall did not intend to give the impression that he had criticised Payne. How are you so sure? Because he said so? You are not the first to have such blind faith in authority – it has happened in the past with disasterous consequences…

        Best regards
        Mr BD

      2. Jim Nately says:

        Again, I can’t help but fear you aren’t really listening. I said quite clearly that permission hearings are neither a retrial of the facts nor the place to adduce new evidence.

        That is a basic principle of Family Court procedure: the factual conclusions of the trial judge (who has the greatest opportunity to assess witnesses) should not be changed unless ‘plainly wrong’, or procedurally deficient. Indeed, it is a basic, if slightly less paramount, principle of all court procedure.

        It is quite simple. Wall P did not determine the paramount interests of the child. That is not what he must do. He must, and did, determine if the assessment of the trial judge was plainly wrong or procedurally inadequate.

        What you are describing is a essentially a re-trial. The Court of Appeal doesn’t do that. And no court will conduct one without the other parties present. This explains why your point about “mistakes and omissions of the judiciary” is wrong—these are not mistakes or omissions but the way our appellate courts work. (Although I would not necessarily trust many journalists—faced with PR copy—to realise this.)

        Furthermore, as you correctly identify, Wall P did not think your case was an appropriate test case. I’m paraphrasing, but the tail end of the judgment [33ff] suggests that Wall P doubts you would succeed even if Payne were substantially altered. Which rather sinks your point about children being removed according to an ‘out-of-date law’. When a case comes along when a re-assessment of Payne has a reasonable likelihood of tipping the balance, the judgment of Wall P is clear: it will go to appeal.

        Also, your understanding of the function of the Supreme Court is somewhat flawed—although the confusion is very common. Much like its US counterpart, the UKSC only takes appeals that deal with wide-ranging points of public importance. There are less than 100 each year. It hears appeals solely for the purpose of clarifying or changing the law for the Court of Appeal. The guidelines of the Supreme Court guide the Court of Appeal, and the High Court in many hundreds (or thousands of cases).

        So I stand by my point that Litigants in Person are very seldom able to a sustain a technical legal argument for about a day on a very broad principle of law while being quizzed on the proposition by five, seven, or nine of the nation’s sharpest legal minds. You are well entitled to doubt me, an I would suggest you spend an hour or two watching the new Supreme Court web-TV feed to get a sense of what I mean. But, quite frankly, suggestions that my point is about the financial means is a rather weak strawman that should be blown down.

        Finally, I did not say that Wall had not criticised Payne or suggested that a suitable case might be sent for appeal, I said he wanted to clarify that his remarks on Payne were not to be taken as some kind of semi-binding or extremely-persuasive legal precedent. Which, to an extent, it had begun to become. Again, I don’t fault you for not knowing this, but the law is clear. Permission hearings do not create precedents (which, incidentally, is why they are seldom reported), and the Court of Appeal binds itself under Young v Bristol Aeroplane.

        I hope that clarifies my point.

  34. JMR says:

    I’ve read this judge’s own report and conclude that based on the true evidence rather than on the opinions paid for by the same agency that funds the social workers. The court and the medical experts both ignore what their own test that shows low calcium and the changing pattern of small bruises. These are frequent indicators of an undiagnosed metabolic disease. In the Us parents who can afford them hire the lawyers who write this page

  35. […] response by the court itself. Booker himself then dispatched some thunderbolts back, and Wagner has responded in turn albeit in a somewhat more measured […]

  36. Bagpuss says:

    I have to disagree that what Mr Booker has done is helpful, either to children or to families who are invovled in care proceedings.

    Because he is demonstrably *not* providing accurate or unbiased reporting, and the critisisms which have been made of him by Adam and others cklearly raise serious concerns about his reliability.

    I don’t know of anyone within the legal or social work systems who would claim that current arrangements are perfect.

    Mr Booker’s would carry a lot moer weight, and be taken far more seriously, if he were to act in a more professional manner and to base his articles on proper research, rather than on the inevitably one-sided and partisan views of one party.

    Ian Josephs, you said:

    “To return to the football analogy,Christopher never did report on the court he simply asked members of one team (parents)their opinion of how the last match was played and what they thought of future matches. He then asked the other team (local authorities ) the same question and was threatened with incarceration .(Millwall perhaps?)”

    Continuing that analogy. You’re partially right, he never did report on the match.
    But he slanted his coverage as though he had done so.
    Further more, he was in a situation where he knew perfectly well in advance that one team (the local authority) would not be able to comment after the game, where he had the opportunity to attend the match to see for himself, or to watch a recording of it afterwards (attending court or reading the transcripts) but chose not to to so.
    He instead chose to assume that the report of a single, disgruntled player was an accurate and unbiased view of the game, and to write accordingly, and then to attack others who point out the flaws in his reporting.

  37. Jim Nately says:

    I do agree with Mr BD that it isn’t terribly helpful to focus on Christopher Booker’s three op-ed/comment pieces.

    On the broader question, I’m of the opinion that there can be sensible, accurate and unbiased factual account of a court hearing without attending it. In order for this to be possible, however, the parties to the case must be willing to cooperate with the reporter.

    Obviously, in cases like these, there are two main problems. For one, the children’s services department is limited in its ability to engage with the newspapers, insofar as it has a duty to the children. Offering an opinion of the case that places it in the best possible light may well conflict with this duty. Second, I have my doubts Booker would have changed his mind on this case. I can understand the council being reluctant to provide comment for an op-ed that was—almost certainly—going to beat-up on them.

    However, as I remarked above, these articles are comment/editorial and should not be conflated with news reportage. To my mind, if you wish to form your own opinion about events, it is imperative to gain as wide an exposure to those events as possible. Attending court certainly helps here. Without watching how witnesses falter or prevail under cross-examination, noting why the judge refuses or allows certain evidence and how submissions are considered, it is very difficult to critique the factual findings of the judgment.

    It is still possible for Mr Booker to offer his opinion, of course. And he has, based wholly or primarily on the remarks of one of the parents. But it is perfectly reasonable—as has happened here—for others to dismiss that opinion as ill-informed. As the Guardian says, ‘Comment is Free’!

    Which brings us neatly onto the subject of Mr Booker. I can entirely understand why he doesn’t wish to spend a few days sitting quietly in a courtroom. Particularly when he may not be able to run the juiciest bits of evidence. And when he may be able to write another few articles in the time he would be sat in court. I can appreciate it is not commercially viable. But a meaningful discussion of the workings of the family justice system should not be limited by the commercial exigencies of the modern (read, grossly underfunded and profit-driven) press.

    On a slight aside, Mr BD—I think you slightly misconstrue Wall P and his comments on Payne v Payne. His criticism had gained considerable force in family law circles—indeed that force may be partly due to the common sense nature of his comments. However, the law is clear. Only Parliament or the Supreme Court may override or materially alter Payne v Payne (or any other decision of the Court of Appeal). The remarks of Wall P had, to some extent, this effect. Ultimately, if he thought judges below him were reading too much into his comments then it was appropriate for him to clarify his point.

    Finally, and upon much the same lines, it’s also worth stressing that your complaints about the refusal of Wall P to allow reporting on the ‘general scientific evidence’ you mention are unfair. Quite simply, that isn’t what the Court of Appeal does. Allowing reporting of evidence that had no bearing on the appeal is unhelpful and distracts from the issues at stake. Not least because that evidence can be discussed fully outside the forum of the Court of Appeal. And, given the generally poor level of understanding of our legal system found in too many journalists, a point that may have escaped their notice.

    1. Corrupted Mind says:

      @JimNately – I agree with much of what you wrote except:

      “Which brings us neatly onto the subject of Mr Booker. I can entirely understand why he doesn’t wish to spend a few days sitting quietly in a courtroom. Particularly when he may not be able to run the juiciest bits of evidence. And when he may be able to write another few articles in the time he would be sat in court. I can appreciate it is not commercially viable. But a meaningful discussion of the workings of the family justice system should not be limited by the commercial exigencies of the modern (read, grossly underfunded and profit-driven) press.”

      I disagree with the assertion that Mr Booker was time poor or in any way limited by “the commercial exigencies of the modern (read grossly underfunded and profit-driven) press”. There are newsworthy stories within the Family Courts. The problem is that media (and their customers, i.e. us) are, by and large, only interested in the salacious. We are turned on by the stories of human conflict and professional failure. Booker in picking up and running at this case is keen to illustrate how the Local Authorities are clueless, judges are self righteous and detached from reality and the parents undeserving or wronged. Those within the transparency movement fail to recognise that the media aren’t clamouring at the doors of the Family Courts for altruistic reasons. A detail wrong here and there is all part of the pudding for some journalists.

      It is easy to cling to the “comment is free” shield but of course the now infamous saying “publish and be damned” is supposed to engender responsibility – surely?

  38. ian josephs says:

    The fact is that a mother can have her baby taken away at birth for “risk of emotional abuse” and be threatened with jail if she protests publicly.
    To make matters worse if her child is a toddler or older she will not be allowed contact unless she signs a document in which she promises not to discuss the case or to say “I love you and I want them to let you come home”?or anything eqivalent with the result that the child will think it is no longer wanted at home. If the mother breaks the gag she will have her contact stopped for good !
    A double gag in a supposedly “free country” dedicated to “free speech”.These gags happen nowhere else in the EU so why should we tolerate them here?

    1. Public Outcry says:

      I am sorry but I do not trust those figures simply as the previous Labour government were oh so adept at dressing the numbers to suit the public view.

      I have 16 years of continual litigation in one of two cases at any time, I speak from personal experience, I also speak from professional experience for the many hundreds of families that I and others used to support through these times, I have also spoken with various people who have painstakingly exposed the “estate farming” scandals, the secret adoption quotas, the collusion between all parties against the parents in such places as Essex.

      And governments are extremely good at hiding things, two cases spring to mind, that of Mark Trotter, a now deceased senior Labour councillor for Hackney who infected as a care worker some 500 children with HIV, because of his links to Tony Blair who he knew and because of the embarressment to the government, the whole scandal was buried.

      The other scandal involves Victoria Climbie, it was my organisation that was approached by a whistleblower who gave me the staggering news that the Team Leader in that case was under a supervision order herself, was one step away from losing her own children and was acting in a frequently bizarre manner before Victoria’s tragic death when the police had to be called when she was dancing naked in her front garden in a state of confusion, we of course passed this onto the press but it was rather strange that Lord Laming didn’t have access to this information.

      On Ian Joseph’s website is the very tragic case of Christina Purcell, who was convicted for deception and other things by a criminal court but it didn’t save the children from adoption even though EVERYTHING that worker had stated had to be treated as unsafe and as a lie, she was shopped by a foster carer who was being threatened by Purcell if the foster carer didn’t back up the worker who wanted to claim the parents were treating the children badly on visits, the foster carer bravely contacted the police and the worker was convicted, I helped considerably in that case and in fact it is ironic that the independent social worker, who supported the return of the children is now the independent social worker in my own case.

      When numbers drop, it looks good but are they dropping? I remember Jack Frost forever lamenting the Offfice for National Statistics who refused to provide numbers for anything to do with looked after children or any aspect of child protection, when numbers did finally appear, there were no explanation or vectors as to what numbers were in which field and the numbers fluctuated so considerably that it was suggested that they were a guesstimate more than anything coherent and accounted.

      Why should we trust figures when we know both Labour and the Tories fiddle the books for the unemployed totals, MoD costs to name two areas which we know are very suspect, if the numbers are suspect in that area, then numbers elsewhere provided must be treated with as much suspicion I would have thought too.

      I have been viewing a lot of FoIA requests that are online and have noticed that many councils outward claims are greatly different to that of the FoIA answers, if the government is receiving skewed data then we are being misled.

      1. Corrupted Mind says:

        Last post on this.

        What numbers are you disputing? The total number of children (avg spans three govts). The number of cases in the courts (if you’re saying the courts can’t count I have no reply) or the number of children in need (equally if you’re saying that the LA’s can’t count what can I say). One thing I will say, is that even if we were to triple the number of children in need we would still only be scratching the surface of the millions of children out there so my point about numbers remains.

  39. Corrupted Mind says:

    Excellent post Adam, Booker deserved to be pulled up on his (lack of) research. I disagree with your point on having to be actually “physically” present in court, mainly because for those who aren’t legally trained sometimes it is easy to get caught up in the theatre of it. However at the very least you would expect a (so called) journalist to be familiar with the evidence and – importantly – to know what legal questions the judge needed to answer and what findings of fact he had to make in order to begin to tackle those questions and ultimately arrive at the conclusions he or she eventually makes (how can you possibly pass comment if you don’t?

    The possibly ‘bigger’ point you make is the one in respect of links to sources. It is perhaps the most infuriating thing about “old media” commentators. A link is such an easy way to signpost to your readers the evidence that underpins your reasoning that I have little trust for those that don’t do it. I liken it to pre-reformation priests that wouldn’t let their congregations look in their Bibles – “Trust me. I’m the expert in these things because I say I am.” Booker should have linked to the judgment (at least) so his readers could form a view.

    More generally, I think many people forget that the family court is not generally a place of happiness but a place, usually of last resort, where broken families seek an independent arbiter into horrifically difficult problems. In most cases (especially those that involve children) the court is not choosing between a “good” or “bad” choice but usually the choice it believes is least harmful.

    1. Public Outcry says:

      You obviously have no experience of how the family courts operate?

      A place of last resort? Ye gods how naive can someone be? Social services seek to move babies into adoption before anything else, other nations work with the families but not in Britain where a child is worth anything up to 20,000 pounds in the divvied up pot between adoption agency, SSD and thats not including the legal costs incurred either.

      Despite the feeble nature of the Welfare Checklist which was given teeth in subsequent PLO issues, far too many social workers disregard it and sidestep it completely with well practiced strategies that cover most criteria, the parents can’t look after the child, then the immediate family must be given all support and help to identify and facilitate the placement of the child with the identified family members, this just does not happen, social workers always have a reason why what we see as sensible and desireable for the child is just not good enough.

      In a case mentioned above, I won’t identify which one, the worker in question is a part time, highly prejudiced, extremely manipulative one who has perjured, lied, colluded with others to bring about an adoption, there is no recourse, no police officer will arrest that worker, the SSD will fail to uphold any complaint and so an innocent child is sold off and that worker gets away with it to do it to someone else, just when does it end?

      1. Corrupted Mind says:

        You obviously have no experience of how the family courts operate?

        If only that were true. Alas, I know the Family Courts too well.

        A place of last resort? Ye gods how naive can someone be? Social services seek to move babies into adoption before anything else, other nations work with the families but not in Britain where a child is worth anything up to 20,000 pounds in the divvied up pot between adoption agency, SSD and thats not including the legal costs incurred either.

        Family matters affecting children number approximately 140,000 a year (see Table 2.1 http://www.justice.gov.uk/downloads/publications/statistics-and-data/mojstats/family-matters-jcs-2009-chp2.xls) There are some 13.3 million children total (see: http://www.statistics.gov.uk/cci/nugget.asp?id=5) of which just under 400,000 are in need (see: http://www.education.gov.uk/rsgateway/DB/STR/d000970/index.shtml) – under any measure you like. Read the statistics for yourself the children both in need and of those the number that actually interact with the Family Courts looked at broadly is quite small (341.3 per 10,000 children). It’s hardly the burgeoning trade you allege.

        Despite the feeble nature of the Welfare Checklist which was given teeth in subsequent PLO issues, far too many social workers disregard it and sidestep it completely with well practiced strategies that cover most criteria, the parents can’t look after the child, then the immediate family must be given all support and help to identify and facilitate the placement of the child with the identified family members, this just does not happen, social workers always have a reason why what we see as sensible and desireable for the child is just not good enough.

        The observation you make above is one without context. Those who work within social care will be more than aware that the last decade has been one of enormous change, the impact of the Victoria Climbie report: http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhealth/570/570.pdf and more recently the review examining the case of Baby Peter: http://www.haringeylscb.org/executive_summary_peter_final.pdf has had far reaching and unintended impacts. For those families involved it might appear as if the Local Authorities are acting over zealously but considering the public outrage whenever a child is harmed it is completely understandable and expected.

  40. Mr BD says:

    Even if journalists are permitted and encouraged to attend court, unless the court gives them the right to report on the issues, arguments and evidence (whilst, of course, maintaining anonymity in family cases) they will be serving as nothing more than a mouth-piece for the judiciary.

    If a judge wishes his judgment to receive wide attention, he invites in the media. They report his judgment. The judge gets what he wants.

    Instead, what the public wants – I would humbly suggest – is a thorough analysis of the judgment, in order to be able to consider whether or not it comprehensively and correctly addressed all the relevant arguments and evidence in the trial.

    For example, in February 2010, Sir Nicholas Wall made his judgment in Re D (Children) [2010] EWCA Civ 50 public.

    In August, he expressed his “delight” with the attention it had received.

    However, Wall refused to give permission for the general arguments and general scientific evidence in the case to be made public.

    The hearing was attended by reporters from the Independent and Families Need Families. Neither were given permission by Wall to report on the general arguments of the case, despite the request having been formally made.

    The identity and welfare of the children and parents in that particular case would NOT have been compromised in any way IF those general arguments and general scientific data were released into the public domain. The only thing which may have been compromised was the wisdom and judgment of Wall.

    This is a prime example of how the current “secrecy” laws are used to serve the vested interests of the judiciary, and actively fail to serve the interests of the public.

    There was a significant public interest argument in releasing the general arguments and scientific research in cases of Relocation.

    Early Day Motion 373 had seen over 50 MPs expressing their concern over relocation law.
    Payne v Payne (2001) had received tremendous criticism both from without and within the legal fraternity, most notably from Mostyn J in Re AR.

    The fact that Wall effectively curtailed the debate on relocation law was, in my opinion, a gross abuse of “secrecy” law, and showed a distain to the concerns of Parliament.

    Mr BD

  41. For the next ex amount of years debating of the family courts will continue, because that is what courts and goverments are all about, meetings and more meetings and they go on for years, every meeting is money and all expences paid, and the only persons who will not get paid are the kids, but then their little minds will be paid in other ways, mental torture and growing up not knowing love and security.

  42. FatherDougal says:

    The circumstances surrounding this particular case offers us an indication, inter alia, of why the mass public have lost confidence in our legal system. The loss of confidence is not as a result of the judiciary making bad decisions or judges letting criminals off or lawyers playing the system, it is a result of the media’s misreporting. It is one thing to misreport the law (although still inexcusable) and something else to misreport facts.

    The mass public have no need or perhaps even no desire to attend court hearings thus rely heavily on the media to adequately and correctly report issues of ‘public interest’ to them. Adam W highlighted such deficiencies in his previous article about Max Mosley and provided examples of this damaging misreporting (Daily Mail one example).

    Only the very few of us in society who work within the law can offer criticisms of the legal system without relying on secondary, alternative sources. For the rest who do not work within the law, they can only arrive at opinions about the law and the legal system having relied on alternative sources of information such as the media. It is, therefore, imperative that media reporting is accurate and even if journalists offer opinion, then that opinion is objective which fairly represents the circumstances as a whole.

  43. Mr BD says:

    Rather than picking apart the actions or “omissions” of one single journalist in one particular case, why doesn’t this blog address the elephant in the room? Namely, the secrecy of the family courts, and whose real interests they serve?

    Until those who work within the legal ‘industry’ muster up the courage to question the authority and dictates of the judiciary, rather than blindly venerating Sir Nicholas Wall’s every proclamation, much-needed reform will be Payne-fully slow in coming. Perhaps they are too concerned with ascending career ladders smoothly.

    I reiterate the contents of my earlier posts.

    In February 2010 – Re D (Children) [2010] EWCA Civ 50 – Wall stated that he had “no doubt” that there was a “compelling reason” for a review of Payne v Payne.

    In April 2010 – Re D (A Child) [2010] EWCA Civ 593 – Wall stated that “…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.

    In August 2010, he gave an interview in which he stated that he was “delighted” with the attention that Re D had received, and he re-stated his criticism of Payne.

    In April 2011 , he performed an inexplicable U-Turn, asserting that too much attention had been given to Re D, that we had all misunderstood his words in Re D, and proclaiming that Payne v Payne must be strictly adhered to.

    It seems that NO ONE in the legal fraternity has the courage to question his U-Turn. No one.

    Mr Booker is not responsible or accountable for family law. Sir Nicholas Wall is. Let Wall explain his U-Turn.

    Mr BD

    1. Lloyd Jenkins says:

      Mr BD-Rather than picking apart the actions or “omissions” of a single judge in one particular case, why doesn’t your reply address what you call “the elephant in the room”? Namely, “the secrecy of the family courts, and whose real interests they serve”?

      I struggle to see what Wall’s attitude to Payne v Payne has to do with the secrecy of the family courts, given that his decisions on it have been publicly available.

      As an aside, Wall explains his position of Payne at 128-9 in W (children). He accepts the criticism of Re: D that Wilson LJ made in RE:H (a child) and points out that it is the role of Parliament to change the test. There’s no conspiracy there- just a judge accepting that he made a mistake.

  44. You may be interested in reading the comments to our Stop the Secrecy petition, to get a different view.

    Those experiences are based on more than one grandchild and more than one judge!

    I’ve also been rather impressed by a comprehensive document that analyses three decades of child protection and family justice in the UK: Dramatis Personae, if you require academic research for your arguments.

  45. In the 70s I worked with prisoners and families, and although I saw and heard such suffering, my god the family courts and the system have a lot of answering to do, should the time ever come when the family courts open their doors, then we will read and learn the truth. I am also involved with my grandson, who reported an abuse by the ex daughter in-law, and I have never met such irresponsible people who suppose to care for children via a system of social services, it is a job full stop, my grandson reported an abuse and from day one which was 7 months ago he has had an army, and that is exactly what the system is, an army, interviewing him at school, calling him on the telephone at school interviewed at the foster carers house, seen by many medical people sat assments and I have lost count of the different organisations involved with a little boy whose wrong doing was to report an abuse, and now he is abused mentaly by the system to go home and live with the mother who abused him, it is any wonder we have more baby Ps to read about. As for grandparents who want to apply to the family courts to be party to the proceedings and apply for a guardianship or care order to protect the grandchild, they must start with £10.000 plus. But then grandparents can pay for the judges and courts time, and social services will tell the judge it is better for the child to be fostered or adopted, yes the courts take our money, and the children are sold via the taxpayers money.
    Wonderful system. Mr Booker you keep writing and dont mind people who think they know it all, and if you do make one mistake, that is nothing compaired to the thousands of mistakes the courts and the system make daily.

    1. Public Outcry says:

      I would say to any grandparent to keep in there, keep fighting, read up on PLO 2008 and the Welfare Checklist and this coming year new legislation is coming that will stop them discriminating against people in regards to age.

  46. ian josephs says:

    Dear me ,Adam Wagner ignores the facts again ! The medical evidence was discussed months after the two articles to which Bellamy took such exception! At that time as Bellamy admits even the police whom he now claims wrongly charged the father,were not informed of the medical evidence so how could Booker write about tiny metaphyseal fractures that at that time had not been located or at least had not been mentioned in any court cases last year,and never needed treatment of any kind.?
    To return to the football analogy,Christopher never did report on the court he simply asked members of one team (parents)their opinion of how the last match was played and what they thought of future matches. He then asked the other team (local authorities ) the same question and was threatened with incarceration .(Millwall perhaps?)
    What Adam also fails to mention is that if a journalist is unable to report what happens in court the remedy is to speak to the participants and if only one side talks he can only report from the perspective of that side but largely factually as Christopher did with actions and dates that were undisputed even in court.He made only one mitake about the identity of an unamed doctor .Bellamy however accused me of sexing up an article that had never even been published at the time I put the rough draft on my site. Bellamy obviously preferring to read my site rather than the Sunday Telegraph copied what I wrote and criticised Booker! Pretty dumb because even when he printed the difference in dates in his judgement he still did not realise his very obvious mistake !Sherlock Bellamy became Inspector Clouseau once again ! As for Bellamy’s “fly on the wall” conclusion that the devoted mother (his own description) did it,depite the police interview in which the father admitted using force on the baby’s arm and was consequently charged whilst the mother was let free,well even Clouseau would have been hard put to have come to Bellamy’s conclusion !
    The whole srious question however, as usual turns on gagging individuals in trouble.May I repeat that GAGGING these people in a democracy is wrong,wrong ,wrong !

  47. John Dowdle says:

    I disagree with Maggie Tuttle and Norman Scarth above.
    The welfare of children is – and must be – absolutely paramount. This may require that the identity of the parents is anonymised to protect the identity and future prospects of children.
    I have a nephew who has been involved with a social services department over the welfare of his grand son.
    From the little I have observed of his difficulties with some of the social workers involved, I can understand people being critical of some of their actions.
    However, my – and his – experience of dealing with judges is that they are almost invariably scrupulous in examining and weighing all the available evidence presented to them, in order to arrive at a balanced judgment in the best interests of the child or children involved.
    Slack journalism contributes nothing of value to the process of trying to help vulnerable children.

  48. One does not need to spend all day in a room with a rotten egg to know it is rotten. The stench is unmistakeable. Equally so, the stench of corruption – even from outside the room. The idea that the secrecy of the Family Courts is ‘To protect the children’ is nonsense. On that basis ALL criminal trials involving parents should be in secret.

    1. Mike says:

      Problem is, sometimes that very same rotten egg in the room is brought in by the very person who may seek to argue upon its so called stench.

      Just to query a couple of matters in question, firstly there is a substantial difference between a criminal trial involving ‘parents’ and a civil case involving parents in the family courts. The criminal justice system is not the same as the civil justice system, the principle difference being that individuals are prosecuted by the state for criminal acts in the criminal courts, while in the civil courts private individuals bring claims against others with regards to generally the enforcement of private rights outwith criminal law. Criminal trials will virtually always be in the public interest meaning that they should be open to the public and the media so that Justice can be seen to be done. In Family courts however it is not so clear cut for the very reason that many of the issues dealt with are in essence private and not of the public interest.

      With regards to whether journalists should be compelled to attend court, no they should not though clearly it would be in their interest to do so whenever possible if they are going to put finger to wordprocessor.
      As for the court being some kind of secret hive of conspiracy as so many parties seem to wish to portray it, this is just utter utter rot. There are justifiable reasons why the family courts should be open, and there are justifiable reasons why they should not be under certain circumstances, principly hinging on whether or not the specific case in question is in the public interest.

      With regards to social work cases, these are only a part of the business dealt with in the family courts, they also deal with many other issues of child custody, divorce battles, and all kinds of other deeply private issues which to be perfectly honest, the public has absolutely no business knowing about.

      Journalists should be allowed to attend cases which carry a public interest element, and if they choose not to do so and later write questionable diatribes which in essence attack the court rather than arguing on the actual facts of the case to whip up their readership, then I am sure that they as usual will win, and justice will suffer.

      What seems important to me is that Parliament rather than spinning away as it has so often recently regarding privacy and the courts, needs to define properly and comprehensively in legislation what issues will be in the public interest and what issues are not, thereby setting an objective, certain and enforceable standard around which these questions can be settled, rather than allowing the media to argue that whatever is in the public interest is simply that which they want to write about and sell papers and cheap tatty checkout magazines for the masses with, and that goes for any area of law upon which these issues are capable of arising.

      God help anyone arguing here if you are compelled to spend time in a family court during your lifetime airing your own and your family dirty laundry in front of the cameras and the newspapers if you get your way; I am sure you all have your own unsavoury skeletons and personal secrets which we are all dying to have picked over in public and reported on in the next edition of ‘Chat’. I am sure however that you would all then have very compelling arguments as to why the family courts should not be public. Its all a matter of perspective at the end of the day, and depends purely on whether you are the one sitting in front of the judge having your personal life ripped apart, or you are the one sitting in the public gallery, or outside the door trying desperately to misunderstand the facts upon which you wish to debate.

      Mike

      1. Public Outcry says:

        When a public servant lies, it is in the public interest, when a miscarriage of justice is committed it is in the public interest.

        The whole point of keeping journalists out of courts is because if litigant A says social worker is lying and the judge accepts this, then the public will know about this.

        Children do not have to be named, nor do adults in that childs family, the claim of media attention harming a child is flawed, it is because social workers and directorates do not want the public knowing just how flawed their system is and how flawed the workers are in many cases.

        It is NOTHING to do with the child and everything to do with keeping the ability to pay lip service to the law, serve up reports of hearsay and supposition and very little evidence.

  49. John Dowdle says:

    It seems to me this self-styled journalist is just being lazy.
    He should go to court to listen to the facts of the case and then arrive at a conclusion.
    It seems like his account has been biased by taking just one side of the case – outside of the court.
    What he appears to have forgotten in all of this is that family courts are under an absolute requirement to act in the best interests of any children involved.
    Perhaps if he were to focus on the welfare of children, people might just start to take him seriously?
    Unless, of course, all he really cares about is generating a pseudo-story with which to sell newspapers? It seems he has been doing a good job in this regard, does it not?

  50. Is it any wonder, that there is so much suffering of children in the uk, when people who are, or can be in a postion to help them, instead they have to put down the one person, of just a few, who are at least trying to bring justice via his/her reportings. At least Mr Booker has bought to the attention on mass of the abuse of children taken into care by young people, who for many call them selfs social workers or Cafcass.
    People need to know as Mr Booker does of the truth. I hope he along with John Hemming, Ian Joseph ignores all and continue to help children and families.

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