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The problem with family courts
In the latest 'cot death' controversy case, the Court of Appeal in London on 19 January 2004 quashed Angela Cannings' convictions for murdering two of her children. The Court expressed concern about expert evidence given at Cannings' trial by paediatrician Professor Roy Meadow, and indicated that 'where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death…the prosecution of a parent or parents for murder should not be started, or continued….' (1)

In an unprecedented move, the attorney general has announced that over 250 cases where parents were convicted of harming their children following evidence from Roy Meadow should be urgently reviewed. It is estimated that over 5000 civil cases, where family courts separated children from their parents on Meadow's advice, also have to be reviewed (2). 'We will make sure that we recognise that not only injustices done in the criminal justice system but any potential injustices in care proceedings are identified and acted on' (3), the solicitor-general Harriet Harman has told Parliament.

This is not going to be straightforward. According to the minister for children, Margaret Hodge, 'any parent who feels that a judgment was made on the back of evidence from Meadow would be entitled to go back to the courts and try to have the case reopened and would be eligible for legal aid' (4). But why should parents who have lost their children through possible miscarriages of justice have to go back to the same courts that let them down in the first place?

Unlike the Court of Criminal Appeal, the family courts have no experience of righting miscarriages of justice. What is needed is a public inquiry into this whole situation, which would need to be chaired by someone with no ties either to the family courts, or to child protection work.

There are a number of reasons why we are in the present mess. Historically, child abuse was assumed to be a marginal problem, and the draconian laws introduced to tackle it received little attention or debate. Now, child abuse is perceived as a widespread problem, with the consequence that more and more families are exposed to intervention.

Philip Jenkins, author of Intimate Enemies: Moral Panics in Contemporary Great Britain, has noted how ideas of child abuse changed from the 1960s onwards. From the 1980s, official concerns shifted from the idea of physical to sexual abuse. He explains this development in terms of 'the influence of feminist theorists and pressure groups; of charities and interest groups, above all, the National Society for the Prevention of Cruelty to Children (NSPCC); and of the bureaucratic needs of social services agencies.' (5) This led to the creation of agencies and units with full-time responsibility of detecting and combating child abuse. In the 1990s, attention was increasingly paid to more arcane, medicalised forms of abuse, such as the now notorious 'Munchausen syndrome by proxy'.

Jenkins notes that many reforms introduced in the name of child protection in recent decades have involved sweeping attacks on traditional Anglo-American legal rights and protections. These rights include: the right to due process, the right to be presumed innocent until proved guilty, the right to be tried in public, the right to confront one's accusers, and the right to 'equality of arms' (that is, not to be tried under significantly less advantageous conditions that those enjoyed by one's opponent). Other protections, such as restrictions on the use of hearsay evidence, the right to consult the expert of one's choice, and even the right to communicate in confidence with one's lawyers (legal professional privilege) also suffered.

Such traditional legal protections were challenged by what Jenkins calls 'therapeutic values, the sense that neutral professionals were working in the best interests of the child and should not be hampered by outdated technicalities' (6).

Our child welfare courts have therefore become accustomed to a model of therapeutic jurisprudence, in which the best interests of the child are paramount (7). This has certain analogies with a Soviet-style conception of justice, which emphasises outcomes over processes, and which requires the judge to carry out social policy, rather than act as an independent arbiter.

This has ominous consequences, as a US judge explains. 'Therapeutic jurisprudence marks a major and in many ways a truly radical shift in the historic function of courts of law and the basic purpose for which they have been established under our form of government. It also marks a fundamental shift in judges' loyalty away from principles of due process and toward particular social policies. These policies are less concerned with judicial impartiality and fair hearings and more concerned with achieving particular results', writes Arthur Christean. He adds: 'There is great danger to our freedoms and way of life when courts of law abandon justice and the rule of law in favour of doing things to people for their own good and because it is deemed to be in their best interest or the best interest of the state.' (7)...