John Hemming, sub judice and the public interest: “no abuse of parliamentary procedure”?

by Carl Gardner on April 27, 2011

Yesterday afternoon there was speculation that John Hemming MP was planning to “break a superinjunction” in the House under cover of Parliamentary privilege.

Then, not long after 5 o’clock, John Hemming made a point of order in the Commons [update: hyperlink removed – see comment 12 below], naming a woman, and a local authority, who he said had tried to imprison her for speaking at a meeting in Parliament. I’m not going to name either of them: as I explain below, I’m not sure it’s in the public interest to do so. I ask you not to name them in comments and to avoid writing anything that could identify them.

John Hemming (Birmingham, Yardley) (LD): On a point of order, Mr Speaker. [******] … , was the subject of an attempt by [******] council to imprison her for speaking at a meeting in Parliament. There was discussion earlier today as to whether that case was sub judice. An application was made to the court, a copy of which I have provided to your office. Additionally, I have provided to your office a copy of the court order in which it was deemed that she would not be jailed. I assume, therefore, that the case is not sub judice, in accordance with sub-paragraph (b)(ii) of the relevant resolution:

    “Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.”

Mr Speaker: I am grateful to the hon. Gentleman for his attempted point of order and for notice that he was to raise the matter this afternoon. I do not intend to have a discussion on the Floor of the House, notwithstanding what he said about documents that have been deposited, on whether a particular case is or is not sub judice. One of my duties is to uphold the resolution of the House with respect to sub judice issues. As far as this particular matter is concerned, I am perfectly prepared to discuss it privately with the hon. Gentleman. I will not take any further points of order on this matter today, and I feel sure that he will take his cue from the clear response that I have given.

Some interpreted this as the Speaker having “gagged” Hemming.

Later, John Hemming posted about his point of order on his blog, saying “Gag Removed – Job Done” [update: hyperlink removed – see comment 12 below] and making clear his objective was to identify the parties in the case.

So what was going on here? And is there any cause for concern?

It’s worth remembering that yesterday’s news agenda was dominated by Andrew Marr – bringing “superinjunctions” into the media spotlight yet again. This was the day John Hemming chose to make his point of order, and although the case he mentioned doesn’t involve a superinjunction at all (applying John Hemming’s own definition of that term [update: hyperlink removed – see comment 12 below]) reporting of what he did makes the connection. We can only speculate about how anyone came to make a link between what Hemming was planning and the issue of superinjunctions, and how they came to think he was planning to “break” one. Admittedly, Hemming went on in a second point of order to mention the case of AMM, but as the fact that I am able to link you to the ruling shows, that case didn’t involve a superinjunction either. To be fair, Hemming apparently indicated a few days ago that he intended to raise this case in the House, so his timing may not have been opportunistic. But the apparent connection undoubtedly increased the attention he was able to draw to a case that’s probably in truth (as I explain below) about the “family court secrecy” he campaigns against.

The first important question is whether the full letter and spirit of the House’s own rule on sub judice has been respected in this case. The House has resolved – this is not something imposed by law or the courts –  that subject to the Speaker’s discretion,

Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.

See the House’s Standing Orders (page 181) and this House of Commons Library note from 2007. The principle served by the rule, as the Joint Committee on Parliamentary Privilege said in 1999 (see the Library note, page 3) is that

the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions.

John Hemming said, in relation to the local authority case,

There was discussion earlier today as to whether that case was sub judice

which is enigmatic but may be a reference to a discussion between him and the Speaker or a clerk. Hemming seems to have taken steps to demonstrate to the Speaker that the case is not sub judice, and said he assumes it is not, relying on paragraph 1(b)(ii) of the House’s resolution:

Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding

but from what the Speaker said, it seems he thought the matter is not so clear, and that his duty to uphold the sub judice rule led him to require the matter to be dealt with privately.

By the time the Speaker had said this, though, the case had in fact been mentioned – with the risk that rights could be prejudiced, and the working of the courts interfered with.

I commented at LibCon yesterday, asking John Hemming questions including these:

Normally, shouldn’t an MP wanting to discuss a current court case ask the Speaker, privately, to exercise his discretion in favour of allowing the case to be debated – and wait for that ruling before raising the case in the House? Let me know if I’ve got that wrong, or if I’ve misunderstood where things are up to in your discussion of the case with the Speaker.

What I’m concerned about is whether, by raising the case today in the way you did, and by naming the council and the person involved, you effectively pre-empted the Speaker’s decision and circumvented Parliament’s own rules on sub judice, which are intended precisely to avoid court cases being affected by publicity, and people’s rights being prejudiced.

Can you reassure us that you’ve not circumvented proper Parliamentary procedures?

John Hemming has said to me today in response to those concerns that:

There is no abuse of parliamentary procedure.

Is that a satisfactory answer? I’m not sure. Also in response to my inquiries today, a spokesman for the council involved said that

This is a matter which is before the court and the council must keep this matter as confidential as it can to protect the individuals involved in the case. For that reason the council cannot comment further.

So they seem to think the matter is active. Yet it was raised in the House without, apparently, the Speaker or House authorities having ruled whether it was sub judice, and whether even so it could be debated.

Secondly, it’s worth asking what John Hemming is attempting to do more broadly in relation to this case, and whether what he’s doing is in the public interest.

The meeting at which the woman spoke, and which apparently led to her being threatened with prison, must I think have been this meeting of the All Party Parliamentary Group on Family Law on 29 March. The APPG’s website says

Audio from the Questions & Answer session and the full meeting audio will be available soon … Due to legal reasons some content has had to be edited from the original recording.

The meeting seems from the photos to have been chaired by John Hemming himself. Did he invite the woman to attend? When I put that question to him earlier, this was John Hemming’s reply:

I did not list a number of people and specifically invite them although formal invitations were sent out to people who expressed an interest.

What we know about the case is that a local authority is involved, and that the woman involved apparently discussed it at a meeting about family law. We also know that John Hemming campaigns against “family court secrecy” and has been known to complain about the conduct of local authorities in child care cases. Is it obvious, then, that keeping this case confidential implies some wrongdoing by the council or the court? Or might there just conceivably be a good reason why the council, or the court, or someone else, would want her not to discuss it at a public meeting?

The council spokesman I quoted above said it

must keep this matter as confidential as it can to protect the individuals involved in the case.

It seems, from what John Hemming has said, that the woman he named is subject to an order made by a judge which prevents her from discussing the case in public. And since this appears to be a family case involving a local authority, it’s reasonable to suspect it’s a child care case in which section 1(1) of the Children Act 1989 applies. The court probably therefore had the welfare of a child at the front of its mind when making that order. That’s why, in spite of John Hemming’s view, I’m not sure it’s actually in the public interest to name either her or the council involved.

I’m not sure either that it’s in the public interest for an MP, in his self-imposed role as a critic of the family justice system (as Lord Justice Wall put it), to use Parliamentary privilege in this way.

{ 75 comments… read them below or add one }

1 Jailhouselawyer April 27, 2011 at 20:56

“I’m not going to name either of them: as I explain below, I’m not sure it’s in the public interest to do so. I ask you not to name them in comments and to avoid writing anything that could identify them”.

Says he providing a link to Hansard which does precisely that!

I note from Baroness Deech on Lords of the Blog no such “I can’t repeat what is already out there in the public domain”.

2 Carl Gardner April 27, 2011 at 21:06

I realise that, John. It’s not easy to get these things absolutely right, and maybe I’ve got the balance wrong here. Thanks for your feedback.

I took this approach because what John Hemming said in the House and on his blog are part of the story too, and readers need to be able to check that I’m telling the truth about what he said. I thought linking to his words, while not naming either party in my own blogpost, was the best thing to do.

If other readers think I’ve got it wrong, please let me know – it’ll help me in future.

3 Jailhouselawyer April 27, 2011 at 21:48

My understanding is that in libel the link is sufficient to repeat it. That’s the first point I was making. The second being I think you are playing silly buggers trying to keep the lid on a can of worms once opened.

There will be genuine cases where the child needs the court protection. However, secrecy hides a lot of sins. I suspect that some of the grounds relied on in these super injunctions are more about the reputation, job and business interests than child welfare. By buying silence they are profitting from their grime.

I am aware that the media does have an issue with Article 8, and that a judge has a difficult job balancing it with Article 10. But, as the tabloids in my view have overstepped the mark on prisoners votes it is good to see them reminded that freedom of speech is not absolute.

What is clear is that the injunction was ok in relation to print and TV and radio, but it it has its limitations in relation to the internet and is only workable nationally and cannot bind internationally. This problem with social networking sites was raised at the Izmir conference.

I have difficulty with a worldwide gag. There’s no order in the first place, and secondly if there is one and it is secret it has no effect until published.

4 Carl Gardner April 27, 2011 at 22:09

But this isn’t a superinjunction, John – John Hemming hasn’t said it is. Nor as far as we know does it have anything to do with article 8.

If I’ve got this wrong here, then I think it’s in the opposite direction from what you want: the problem I wrestled with a bit was whether to link to Hansard and the MP’s blog at all. I concluded I should. As I say, I welcome people’s views, if you think I shouldn’t have.

5 Jailhouselawyer April 27, 2011 at 22:18

I am aware of that from your post.

I am not saying you should not have linked or referred to his blog. Only that to blog you wont and give reasons only to post signs where to look. Mixed messages springs to mind…

6 Jim Nately April 27, 2011 at 23:12

I’d confess to being roundly confounded by this. We know [the woman mentioned by John Hemmingedited by Carl] has some family proceedings running against her. We know that she wasn’t supposed to reveal that fact and was summoned to the RCJ for contempt. Unless I’m being dense, we don’t know much more—certainly Mr Hemming isn’t providing further information.

I genuinely don’t understand what debate John Hemming is trying to kick start here. One about the power of the courts to order parents involved in family proceedings not to seek publicity? One about whether or not parents at risk of losing their children should be able to start litigating in the court of public opinion? One about the power of the family courts to remove children for their interests? It just isn’t clear.

About the only concrete thing I can see is John Hemming’s name in the papers. Could it be just about cheap & easy publicity? (Perish the thought!)

7 Carl April 28, 2011 at 10:19

I want to ask a question to Carl and John if I may: would you support opening out family courts to the press if “public” or “national interest” was better defined?

8 ObiterJ April 28, 2011 at 10:34

Mr Hemming seemed to raise two points of order. Perhaps they are connected somehow: perhaps not. I don’t know.

The first point related to this lady and Hansard itself reported her name and occupation as well as the Council in question. Mr Speaker (rightly I think) said he would not consider the matter there and then but would deal with it privately. Mr Hemming was then asked to give his “vocal cords” a rest !!

The 2nd point of order seemed to relate to the situation in which an interim injunction is obtained and where there is no real intention of pursuing the case to trial and final order. Matters then seem to be in a sort of “limbo” and maybe Mr Hemming wished to clarify the sub judice rule on this point.

Having said this, the Speaker appeared to think the points of order were somehow connected since he referred to the ingenuity of Mr Hemming being “boundless” and then re-iterated that it would be dealt with privately.

Mr Hemming is certainly creating something of furore about these various injunctions and there is the latest story about him passing the text of an injunction (relating to Sir Fred Goodwin) to a parliamentary committee. As well know, Sir Fred, was a well-known “entrepreneur” in a certain financial sector!! What is it that the injunction protects? Of course we do not know but there must be some validity in a point made by (I think) Lord Oakeshott that the public ought to have some assurance that whatever is being protected did not relate to his business dealings and the financial crisis of which he was a part.

Interestingly, Mr Hemming has himself enjoyed an interesting personal life. There is no secret about it though I am not going to repeat it all. Ironically, he might have been able to get one of these injunctions himeslf ??

Meanwhile, I enjoyed this little item: Superhemming and the magic judge

http://www.totalpolitics.com/email/blog/157222/superhemming-and-the-magic-judge.thtml

9 Carl Gardner April 28, 2011 at 10:39

Carl,

I’m not against “opening up” family courts at all. I welcome what’s already been done to allow the press in (I think known, responsible family law bloggers should be allowed in too on a case by case basis, though if journalists were regulated like other professions I’d agree it should be just them). Of course what can be reported has to be limited, unless you think children’s welfare in particular is unimportant.

I don’t think this is about “opening up family courts” at all, though, or at least I think that’s only part of John Hemming’s broader campaign against social workers, the family courts and care system generally (I’ll happily withdraw that and describe what he’s doing differently, if he thinks that’s an unfair way of putting it) and opposition in a series of individual cases to what social workers and judges have done to protect children.

The real question here is whether John Hemming is pursuing his campaign in a way that’s responsible and in the public interest. That’s what I’m concerned about.

10 Carl Gardner April 28, 2011 at 10:45

Obiter,

One of the concerns I have about what John Hemming is doing is precisely the way he seems to link “these various injunctions”. I don’t think there is any real connection between superinjunctions and the confidentiality of child care proceedings, or anyway, they’re not all part of one big social problem.

My concern at the stage is simply about what he’s doing in relation to cases involving children and vulnerable adults. I relation to those cases, I’m not sure what he’s doing is in the public interest, and I think it requires scrutiny.

11 John April 28, 2011 at 11:58

“Perish the thought?”

I have no reason to doubt Mr Hemming’s motives. One need look no further than Lord Justice Wall’s scathing criticism of the council involved In the Matter of F ([2008] EWCA Civ 439) to see the breathtaking arrogance of some adoption agencies. It is not difficult to understand how a combination of ‘abuse’ by the agencies, a degree of acquiescence present in the lower courts and the [understandable] privacy requirement can lead to injustice. I understand like difficulties have presented in the Court of Protection.

Similarly, and unlike libel actions, there is no presumption against interim injunctions in commercial confidence cases. The tension between commercial interests and the public interest is clear in Trafigura and the potable water case. Incidentally, the latter did appear to contain a clause in the resulting order restraining communication with MPs.

However, Mr Hemming has become the standard bearer for the media. To say the media’s motives might not be as pure is probably something of an understatement. This, of course, presents Mr Hemming with the difficult exercise of balancing the value of the continued support of the media against their, perhaps, selfish motives.

In my opinion, Mr Hemming got the balance wrong in ZAM, and more wrong in Re M. I think I prefer to describe the injunction in M an appeto-injunction, the terms of which appear entirely appropriate.

12 Carl Gardner April 28, 2011 at 12:54

You’ll see that I’ve removed three hyperlinks I originally included in my post. You’ll also see in my earlier comments to John Hirst why I originally included them. But now I’ve decided to remove them, and want to explain why.

The first was to the Hansard report of what John Hemming said in Parliament; the second was to his own blogpost about what he did. Both Hansard and the blogpost contain the names of the woman involved in the case, and the local authority. The third was another link to John Hemming’s blog, to a post that doesn’t name the parties to this case.

First, although I initially decided I ought to include the links, so that readers could check the accuracy of my assertions about what John Hemming has put in the public domain, I admit I was a bit concerned about whether I’d done the right thing. Since I don’t think naming the parties is in the public interest, there’s an argument that linking to another site that does name them, even if they’re Parliament’s website and an MP’s website, is also against the public interest. John Hirst’s comment above about “mixed messages” (although he’d want me to give more, not less, information) revived my own worries. And this morning Paul Lewis (@paullewismoney) on Twitter also made me think about whether it was right to include the links. I won’t link to his tweets: he was taking a fairly similar line to John Hirst, and named the parties in what he tweeted to me.

I don’t want to risk harm to a child, or to frustrate what a court is trying to do, and on reflection I think I should have come down more clearly in favour of making sure I avoided that risk, and been less concerned in this case to balance that consideration against transparency and being seen to be accurate. It’s not easy always to get things right in blogging, and I now think I got the balance wrong first time.

Second, on Twitter Milly B drew attention to the fact (reminded, me, in a sense: at least I ought to have remembered this) that section 97 of the Children Act 1989 applies to the case (assuming they are indeed Children Act proceedings, which seems certain). That being so, regardless of the terms of any other order, it’s an offence to publish or cause to be published any material likely to identify any child as being involved in the proceedings. Obviously I want this blog to be lawful, but more than that, and whatever the legal position as regards to linking, I also want to ensure what I do does not frustrate the purpose of the legislation. In any event, thinking about this only reinforced my concern that I’d got things wrong originally.

Finally, and what in my mind would resolve things decisively in favour of removal even if the other reasons I’ve mentioned did not, I’ve realised that other bloggers and tweeters might be concerned about whether linking to this blogpost involves any risk either of doing anything unlawful, or of doing something that might be against a child’s interests. I want to reassure them.

It’s this final consideration that’s led me to remove the third hyperlink, which I realise arguably is overkill. It does allow me to reassure others, though, that my post does not link at all either to Hansard or to John Hemming’s blog.

By the way, the definition John Hemming gives on his blog of a superinjunction is: “a court order that itself cannot be talked about”.

By all means let me know whether you think I’ve got this right now, or what you think of what I’ve done.

13 ObiterJ April 28, 2011 at 13:21

I would think you are on terra firma now and I commend the way you have addressed your concerns.

Child care proceedings have their own legal rules including publication – CA89 s.97 etc.

I think that Mr Hemming perhaps needs to be more careful about naming individuals in Parliament. He might be better to make his points about injunctions etc. by more general observations. He is far from being the only person concerned about the growth of secrecy in the legal system but that’s a big subject area with many angles to it.

14 David Allen Green April 28, 2011 at 16:47

Carl, you have done the right thing.

I agree with Obiter J regarding Hemming.

15 Richard Edwards April 28, 2011 at 17:53

Mr Hemming’s attempt to get round judicial rulings by the use of parliamentary privilege raises very serious issues. Privacy injunctions are made because judges think that it is right to do so. Anyone affected can apply to vary or discharge – but the media almost never do this because they accept that, as a matter of law, the injunctions are rightly made. But they then try and undermine the law by giving “hints” to readers and information to Mr Hemming to publish behind the cloak of privilege. There is no indication that any “public interest” arguments were raised in the injunctions he complains about. Even if (which seems doubtful) he has read the evidence and considered the arguments his role as an MP does not include the ability to decide that judges are wrong in particular cases and to ignore their decisions accordingly.

16 Carl Gardner April 28, 2011 at 18:09

Thanks, David.

Richard – I agree. I think what John Hemming is doing does indeed raise serious issues.

17 John Hemming April 28, 2011 at 21:32

All of this is quite a complex area involving as it does the interplay between different aspects of constitutional law.

You only have to look at the Withers case to see how little understanding there is in otherwise experienced lawyers of constitutional law.

What I have concentrated in the public domain is one case involving [*****] and [*****] (edited to remove the names of the parties – Carl). That is the application to have her committed and associated proceedings in parliament.

Note that each application is to be treated as separate proceedings.

One, not unusual, tactic in electoral politics is to ask a question to which you already know the answer. Such a tactic should not be found surprising.

It has the effect of putting something into the record.

18 Carl Gardner April 28, 2011 at 22:49

John,

Thank you for commenting here. You’re welcome, as always.

I asked, though, in my original post, that commenters should not name the parties to the case you mentioned in Parliament yesterday. I’m sorry that in spite of that I had to edit your comment. As you know, I think it’s up to you what you allow on your blog. You have taken your own view of where the public interest lies in this matter and published accordingly. Equally, it’s up to me what’s on my blog, and I take a different view from you about the public interest. Please respect that.

In response to your comment, what we’re dealing with is not electoral politics. And thinking you know the answer to (I presume you mean the question whether this case is sub judice) is not the same as knowing the answer. It seemed from yesterday’s exchange that the Speaker was not necessarily of your view. If I’m wrong, you can say so.

It seems to me less clear than you present it. You remind us that each application is to be treated as separate proceedings, but it’s not obvious that means that, as soon as one application in a case is dealt with, the entire proceedings become automatically inactive so that it’s open season for MPs to name the parties to it in advance of any exercise of the Speaker’s discretion. You’ll have seen the statement the council in this case have put out, quoted in my post, form which it appears the case may still be active. Of course we don’t know exactly what’s happening currently in the court case, and I’m certainly not asking you to tell us. I don’t think you should.

You are welcome though to let us know if at your meeting today, which Paul Waugh reports you as saying was “good”, the Speaker agreed the matter is not sub judice. That would be quite a reassuring response to one of my concerns. If he didn’t agree with you then I think my concern must be well-founded.

You don’t have to worry about anyone’s grasp of constitutional law here, John. If you’d like to develop any constitutional law points further and engage in debate about them in detail, this is a good place to do it. Readers of this blog have I’d say a pretty good appreciation of the subject – and all the better for realising none of us knows it all.

19 John Hemming April 28, 2011 at 23:20

I am not commenting on the meeting with The Speaker beyond the comments reported.

“but it’s not obvious that means that, as soon as one application in a case is dealt with, the entire proceedings become automatically inactive so that it’s open season for MPs to name the parties to it in advance of any exercise of the Speaker’s discretion. ”

The idea of sub judice is not to discuss the issues in a case in parliament prior to a judicial decision. In essence it is to avoid doing anything that might affect that judicial decision.

The motion is quite clear in recognising that a case with a case number may have an number of distinct applications and associated proceedings. Each application is treated separately.

If we take a hypothetical care case, for example, then it would be entirely possible to discuss the fact finding hearing conclusions and their flaws in parliament whilst contact proceedings are continuning. I might, however, decide that it was not in the interests of the child to do so in parliamentary proceedings – notwithstanding any concerns I may or may not have about the rationality of the conclusions reached.

20 Martin George April 28, 2011 at 23:33

I might, however, decide that it was not in the interests of the child to do so in parliamentary proceedings – notwithstanding any concerns I may or may not have about the rationality of the conclusions reached.

One might point out, John, that it should not be your decision to make.

21 John Hemming April 28, 2011 at 23:36

You are not clear as to which “it” applies. The question as to what I say in parliament primarily is resolved by myself, but operates within the constraints set by parliament.

I am accountable to the electorate.

22 Jim Nately April 29, 2011 at 00:55

@ John Hemming,

If you will forgive me for saying so, I don’t think the issue is whether or not you have technically broken the sub judice rules or not. Two questions arise: one, how do you decide whether or not it is in the interests of the child to name them—is this based on the court judgments or what you constituent/client tells you? (Or to put it another way, why are you more able to make that call than a judge?)

But the most important question remains: why do it at all? Are you merely concerned that imprisonment seems an overly harsh punishment for breaking a court order? Would you like members of the public and press to be able to sit in on family proceedings? Do you think the legal standards for initiating care proceedings, and/or succeeding in care proceedings is too low (and what would you suggest)? Are you generally of the opinion there should be no/less limits on press reporting? Are your concerns about public or private family law? Do you want unsuccessful parties to family actions to press their case in the media—and if so, do you support the right of the prevailing party to press their case in response? What?

The reason I ask is simple. You are (god help you!) a politician—meaning your line of work requires you have half an eye out for some (good) press. Your name is getting a lot of fairly favourable coverage at the moment. But I have absolutely no idea why, and I’ve read the newspaper articles about your revelations.

So, no rhetoric, no PR, no politics. What’s it all about?

23 Carl Gardner April 29, 2011 at 01:03

Thanks again for commenting, John.

I understand your not wanting to disclose the content of your discussion with the Speaker – but it is a pity from the point of view of transparency, which you obviously campaign for in the courts. If we knew what had been said, we’d be better able to scrutinise what you’ve done and if appropriate put my concerns aside.

You say

The idea of sub judice is not to discuss the issues in a case in parliament prior to a judicial decision. In essence it is to avoid doing anything that might affect that judicial decision

but actually that’s only part of its purpose, isn’t it? As the quote from the Committee on Privilege in my original post says, sub judice also means that

the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions.

Hasn’t what you did prejudiced the rights of the child in this case? Hasn’t it prevented the court from exercising its functions under the Children Act? It certainly seems to have frustrated the court’s order.

24 John Hemming April 29, 2011 at 07:10

Unlike others I have simply looked at the question of the commital proceedings.

The role of parliament is defined in part as resolving grievances. That can include grievances about the way in which the judicial system operates. (eg Birmingham 6 etc).

The accountability of judicial processes occurs through the process of external supervision. With secret judicial processes this is harder to achieve and hence it is necessary to use parliamentary proceedings.

25 IAN JOSEPHS April 29, 2011 at 07:15

What a lot of jargon!Why not stick to the simple outrageous fact that a mother can [details of case redacted – Carl] and that she will be jailed if she tries to complain !
WHY ?? Because biased judges pretend “the right to privacy free from interference from government agencies” as stated in Article 8 of the Human rights Act was designed to gag parents when in fact the obvious intention was to PROTECT them !
Let’s talk in terms that the average man in the street would use and understand !
Social workers can take our babies and jail us if we kick up a public fuss ! We get punished even though we have committed no crimes against children or anyone else!Where is justice?Where is free speech? Where is so called democracy?

26 JuliaM April 29, 2011 at 07:38

“What a lot of jargon!”

This is a site run by a lawyer. Were it not full of jargon, I’d be suspicious as to his stated identity… 😉

“Why not stick to the simple outrageous fact that a mother can have her baby removed for”risk of emotional abuse” and that she will be jailed if she tries to complain !”

Very good question. It’s the sort of thing we decry in other countries, isn’t it?

27 John Hemming April 29, 2011 at 07:43

And the point about her name being known publicly is that those people who know here (which is a lot) can then check whether they think the state is at fault or not.

This relates to potential future care proceedings rather than historic care proceedings.

28 Carl Gardner April 29, 2011 at 14:43

How can they check, John?

29 John Hemming April 29, 2011 at 15:17

A test of reasonableness in respect of the points that Ian Josephs refers to.

30 Carl Gardner April 29, 2011 at 18:03

I’m sorry, John – I didn’t make myself sufficiently clear.

I meant, where do you think people should obtain information on the facts of the case, so that they can form a judgement about whether what the state has done is reasonable?

Also, you said earlier (comment 24) that you had

simply looked at the question of the commital proceedings.

But what you’ve written here since suggests you’re actually interested in the merits of the underlying care proceedings in this case, and that others should take an interest in them too.

That’s the truth, isn’t it? You’re not just interested in the committal proceedings, are you?

31 John Hemming April 29, 2011 at 19:48

Anyone who provides any details in public of the initial care proceedings is in contempt of court. Hence I cannot sensibly discuss them nor can anyone else come to a sufficiently evidenced conclusion to have any merit.

I am, however, interested in that issue and some associated issues.
I will not say any more.

32 IAN JOSEPHS April 29, 2011 at 21:12

Too right John, but of course [name and factual details redacted – Carl] and we can reveal all the gruesome details as they occur, !I feel sure that [name of council redacted – Carl] Council will waste public money pursuing her in [redacted – Carl] or any other country she visits. Social workers are a vindictive lot who cannot bear to be defeated or to miss out on an adoption: hence their reluctance to leave Irish,French,or Spanish authorities to deal with mothers who have fled to their shores ,as the UK concepts of “risk of emotional abuse ” and “forced adoption” are met with incredulity in those more enlightened countries !
Later ,of course thanks to Clayton v Clayton we shall once all court proceedings have finished, be free to discuss in detail the other proceedings that caused [name and factual details redacted – Carl].

33 Carl Gardner April 29, 2011 at 22:42

Ian,

I asked commenters not to name the parties to the case John discussed in Parliament. Why didn’t you respect that?

34 Carl Gardner April 29, 2011 at 23:05

John,

Thanks for admitting that it’s not simply the committal issue that interests you.

I think you must be right about contempt of court. It seems to me there’s no proper way for anyone to discover information about the care proceedings sufficient to enable them to form a view on whether or not public authorities have acted properly.

So I wonder what on earth you meant when you said

the point about her name being known publicly is that those people who know here (which is a lot) can then check whether they think the state is at fault or not.

What could you possibly have meant, except that they could now search for any “information” there is about the case on the internet?

35 IAN JOSEPHS April 30, 2011 at 00:09

Sorry Carl I did not read back enough in the comments section to note your request to avoid names.I will of course respect your wishes as it is after all, your site !
Speaking generally of course I return to my previous question.
“Why not stick to the simple outrageous fact that a mother can [details of case redacted – Carl] and that she will be jailed if she tries to complain? !”
Why not also ask how it can be right for [details of case redacted – Carl] when the only offence of which she is suspected is the breach of confidentialit in a case where she is personally involved?
Simple questions that desrve simple answers !

36 Jim Nately April 30, 2011 at 00:24

@ John Hemming,

I think your CiF piece today completely blows your credibility on this issue. Conflating super-injunctions and orders preventing parties to proceedings talking to an MP (which appears to be you, and only you) might go over well with the press and the general public who don’t know any better. But it’s absurd—dangerous indeed—to suggest anyone should legislate based on such a foolish confusion.

When the right of children not to be “named-and-shamed” (be that directly or indirectly) as being taken into care (or a council’s care services attempted to take the child into care) is lumped in with the question of whether celebrities should be able hide their affairs, only one conclusion can be drawn.

You’re playing to the gallery. Quelle surprise.

37 IAN JOSEPHS April 30, 2011 at 07:52

Free Speech is Free Speech whatever the situation and wherever you find it !The laws of libel and slander exist to prevent defamation.Nothing however protects parents from neighbours gossip when children confiscated by the State mysteriously disappear. Any attempt to explain what happened and to justify themselves ,and parents are threatened with jail !
I really do not understand how any intelligent person with an ounce of compassion can justify legal gagging of a mother [details of case redacted – Carl].Many in this situation have even been told(wrongly)that they cannot discuss the situation with their immediate family !Article 8 of the human rights act was clearly drafted to protect families from State interference,and it is utterly perverse of judges to interpret it instead as a license to gag parents who have been oppressed by the State !
As long as there is no infringment of the official secrets act everyone should be free to say what they like when they like without judges and social workers rushing to protect their own deplorable conduct by legally gagging everyone in sight !Yes,I know racial abuse is disgusting but making it a criminal offence is an absurdity when applied to petty squabbles between persons of different racial origins.We all have mouths so it makes more sense to answer back than to call for the police !
I now live and work in France,where happily, frantic attempts by the State to muzzle anyone it disagrees with (as in the UK) do not exist.The same goes for most of the rest of the EU and it is shameful that the UK ,the cradle of democracy is fast becoming a police State where the slightest word “out of place”(that could embarass the apparatus of the State ) can land you behind bars !

38 AndyJ April 30, 2011 at 09:15

It seems to me that raising a case in which it is alleged that a public authority is acting in a draconian manner is a proper use of Parliamnet and can be done perfectly well by anonymising the mother and child (it worked well enough during the Baby P case prior to the child’s actual name being released). But the council involved should not be anonymous, especially where they have a poor previous track record of child care, since this factor directly relates to whether or not the public bodies acted correctly in this instance. Given the, some would say all too, high number of cases all councils deal with, simply naming a particular council does not of itself jeopardise the right to privacy of the child, and the work of all council social services should be as transparent as possible if we are to have trust in them. I assume this is one of John Hemming’s underlying points, but I see no jutification for naming the mother to achieve that aim.

39 John Hemming April 30, 2011 at 09:33

Ian Josephs makes the key points very well.

The issues about gagging people are indeed about the limits on freedom of speech.

Unlike the Baby P case we are not actually discussing a case relating to a live child. That case remains confidential.

The cases being discussed relate
a) Primarily to the attempt to jail an individual for speaking at a meeting in parliament.
b) secondly to an attempt to [name and details of case redacted – Carl].

40 Carl Gardner April 30, 2011 at 10:39

John,

I’m disappointed that, after my last specific request to you (in comment 18) to respect my wish, already made clear in my original post, that comments here should not name the woman whose case you raised in Parliament, I have again had to redact a comment from you in which you chose to do just that.

I note from your last comment that what you’re concerned about is gagging “people”, not just the mother in the case. I infer from that that you think it’s wrong for a court to take any measures to stop people not involved in a child care case from posting factual claims and opinions about it on blogs and websites. Is that right? You can correct me if you’re opposed to public discussion of child care cases by people not directly involved in them.

If you have any concerns about the propriety (rather than simply the lawfulness) of internet discussion of the case you raised in Parliament – the kinds of discussion cited for instance by Unity at Ministry of Truth – please let us know. It may be on the other hand that you’re more concerned to make sure people (like those cited by Unity) have the right to discuss care proceedings freely on the internet, without interference by the courts. Please let us know your views on this.

And you’ve not answered my question in comment 34. When you said (comment 27)

the point about her name being known publicly is that those people who know here (which is a lot) can then check whether they think the state is at fault or not.

what could you possibly have meant, except that they could now search for any “information” there is about the case on the internet?

41 Charon QC April 30, 2011 at 10:57

Carl – But what… if the family justice system is failing (as some family practitioners and commentators admit)?

Is it not, then, right that a politician should seek to highlight this issue by *direct action* within the law of our country?

Is it right that our justice system should have secret trials – save in the most serious cases of national security?

Difficult one.

This whole issue needs to be addressed – and it is not about (duplicitous) married celebrities, betraying their spouses/partners, shagging people they should not be so shagging.

It is a matter of fundamental personal rights. *Legal* bullying is, of course, a very real problem here? I am, increasingly, becoming more uncomfortable with the judicial trend to secrecy which is not in the public interest for confidence in the rule of law.

Some argue for the abolition of secret trials and superinjunctions. They may well have a point.

42 John Hemming April 30, 2011 at 11:58

Web logs are discussions in public which do not operate in isolation to other information. Hence once a name is in the public domain it really does not have any significance not mentioning the name.

What is significant is that some of the information currently subject to a gagging order is reported on ministry of truth. That is a clear contempt of court.

I try to track the legal position of information rather than necessarily following different people’s differing rules as to what they would like people to write on their own fora. However, I had no intent to deliberately flout your own rules and I apologise if I have upset you over this. This arises from me responding in a range of different places on the net.

Interestingly many of the issues in this wider debate are those of the first amendment to the US constitution.

43 ObiterJ April 30, 2011 at 12:30

CharonQC said – “I am, increasingly, becoming more uncomfortable with the judicial trend to secrecy ..”

I agree – many of us are. This issue will run and run …!

Meanwhile, I would urge Mr Hemming to fight his fight on the issues and avoid naming people who might get extremely hurt in the crossfire.

44 Carl Gardner April 30, 2011 at 13:45

John,

You still haven’t answered my question (comments 34 and 40).

45 Carl Gardner April 30, 2011 at 13:51

CharonQC,

You’re right – this isn’t easy in principle, and you’re right I think that MPs should expose bad and oppressive behaviour by the state and by the courts – where it occurs. I think the right of MPs to name names, and expose genuine scandals, is precious, and I’ve the greatest respect for MPs who do this responsibly and seriously, with substance behind their claims.

In fact I’d defend an MP who went much further than John Hemming has done in naming names and criticising individual judges, lawyers, social workers and so on – in an appropriate case.

My concern here isn’t about that as a matter of principle, but about whether what John Hemming has done is a responsible use of Parliamentary privilege in this case.

ObiterJ:

I agree. Though I do wonder whether it’s really true that judicial “secrecy” is increasing, or whether it’s just an impression we’ve gained because it’s so often said.

46 John Hemming April 30, 2011 at 14:17

I meant “her”, not “here”.

The point about identities is that they add to an issue. For example some relatively influential people who know her now know the way in which she is being abused by the state (I refer here specifically to the attempt to jail her for speaking at my meeting). They can check the issue as to what is being done to her against their own personal knowledge of her.

It is also far easier to write stories about known people than when the people are anonymous. Readers find it easier to emphasise with a story.

The media coverage is important for the way in which it influences politics.

Hence having a name is important.

Incidentally criticising a named judge is only permissible under specific circumstances according to parliamentary rules.

47 David Allen Green April 30, 2011 at 16:39

There are three issues here.

First, are the family courts too secret and their orders too illiberal? I am not a family lawyer, but I know of good lawyers who say the family courts are indeed too secret and their orders too illiberal. If so, there is a problem which needs addressing.

Second, has Hemming conducted himself correctly in respect of his use of parliamentary privilege? Here, it is important to note that it is actually not clear what should happen when parliamentary privilege is used to undermine the jurisdication of the courts. We get by on this issue, as many others, by convention and by avoiding misuse. Like Carl, I would be supportive of the use of parliamentary privilege to undermine certain court orders but, again like Carl, I do not see this as such a case. Indeed, it is more consistent with the view that a single MP is out of control and will not take no for an answer, even though though wiseheads around him are asking him to calm down.

Third, there is the repeated misuse of Carl’s blog by Hemming to publish details which Carl has requested him not to do. There is no good reason for this, even if there is a good reason for doing it in parliament. It makes it difficult for an onlooker to believe Hemming is taking this sensitve matter with any appropriate seriousness.

I think Hemming needs to take a moment and reflect on the tactics he is currently using in trying to what is – in principle – a commendable strategy in opening up the secrecy of the family courts and in scrutinizing the seeming harshness of their orders.

48 IAN JOSEPHS April 30, 2011 at 17:04

A mother wanted to be named so John Hemming named her !
Where is that abuse of privilege?

49 David Allen Green April 30, 2011 at 17:11

Ian,

All because a constituent [x] asks MP [y] to make a statement in parliament (or [x] consents to be named by [y]), that does not mean that the MP avoids what otherwise would be an abuse of parliament.

50 ObiterJ April 30, 2011 at 17:36

“Though I do wonder whether it’s really true that judicial “secrecy” is increasing, or whether it’s just an impression we’ve gained because it’s so often said.”

There is something in this.

Family cases have generally been heard in private – not “secrecy” since, at least since changes made by Jack Straw, accredited media reps. can gain access and some anonymised judgments are produced by the senior courts. Of course, there are cogent reasons why the intimate details of a child’s family background ought to usually be kept away from prying eyes and Parliament has itself enacted legislation on this subject.

Court of Protection has come to light because it is now a “proper” court as opposed to the old arrangement of it being an “office” of the High Court.

There were always various “in chambers” applications.

However, at least before the senior courts and some inquests, we are seeing more arguments relating to public interest immunity. The Binyam Mohamed case saw a lengthy struggle in the High Court to get government to release certain information to the judges and ultimately the action was settled without prejudice and with confidentiality clause(s). The 9/11 Inquest has seen similar issues relating to release of evidence considered by the learned Acting Coroner to be material to the inquest.

I suspect the media are now more ready to pounce on what they claim to be secrecy.

Then, of course, there are injunctions. I am far from fully convinced that those who normally seek the public eye should be protected as soon as something emerges which is embarrassing. However, this is complicated and I await Lord Neuberger’s report with interest.

51 John Hemming April 30, 2011 at 17:57

Firstly, what is the problem with identifying the council who tried to lock someone up for speaking at a meeting in parliament.

Secondly, what is the problem with identifying the individual who they tried to imprison.

This could have been a meeting about potholes or anything else.

I believe that we live in a Democracy not a Kritarchy.

52 IAN JOSEPHS April 30, 2011 at 18:14

So many people talk about opening the family courts for free reporting by the press… But that is not the real issue.The real disgrace is the gagging of parents whose children have been taken by the very public authorities that Article 8 was designed to restrain !In my view parents should like rape victims be able to choose whether to go public or keep proceedings private;
Gagging,gagging,gagging ,I REPEAT AGAIN AND AGAIN GAGGING THOSE WHO CLAIM TO BE VICTIMS OF STATE OPPRESSION HAS NO PLACE IN ANY CIVILISED COUNTRY !

53 Jim Nately April 30, 2011 at 20:18

@ John Hemming

I wonder if we’re starting to get somewhere. I’ve just read an article where the Daily Mail is quoting you as suggesting imprisoning judges.

Er……I’m not quite sure what to say!

54 Sceptics 'R Us April 30, 2011 at 21:42

‘I believe that we live in a Democracy not a Kritarchy.’

Unfortunately, while almost totally impracticable in a developed society, the definition offered here of a Kritarchy

http://rothbard.be/bestanden/frvandun/Texts/Articles/Kritarch1.htm

has much to it that is attractive, particularly as our developed democracy has much of the ring of the following

‘Because of its commitment to equal justice for all, a kritarchy does not know the usual political distinction between subjects and rulers. It lacks a government in the modern sense of the word, i.e. an organisation with coercive powers that claims a right to the obedience or to the use of the labour or the property of those who inhabit or reside in the area over which its coercive powers are effective. Governing and taxing people by public or private force are no functions of the political system of kritarchy. People are to be left free to govern their own affairs, either individually or in voluntary association with others — and this means that in governing his own affairs each is required to leave others free to govern their own affairs. In this sense, freedom is the basic law of a kritarchy.’

Anyway, on topic, if respect for family life under Article 8 clearly involves a positive obligation to reunite parents with
their children….and………the
Court has established that a fair balance has to be
struck between the interests of the child in remaining
in public care and those of the parent in being
reunited with the child. In particular, it has held that
… [i]n carrying out this balancing exercise, the Court
will attach particular importance to the best interests of
the child, which, depending on their nature and seriousness,
may override those of the parent. In particular,
as suggested by the Government, the parent cannot
be entitled under Article 8 of the Convention to have
such measures taken as would harm the child’s.’

if the local court has indeed got it wrong, isn’t the process to follow the law and legal process through to the end before resorting to desperate measures such as having an MP trumpet the details from the rooftops? Not ideal for those concerned, I do agree, but otherwise, isn’t all that you are doing just advocating some sort of MP sponsored anarchy?

55 John Hemming April 30, 2011 at 21:52

The problem is that when the judicial process is so badly flawed that it is essentially broken then the only real option is to emigrate.

Which is what [she who must not be named] has now done.
[link removed to story naming woman – Carl]

The problem with any system of government is that human beings are not perfect. Hence you need checks and balances.

56 IAN JOSEPHS April 30, 2011 at 22:49

Sceptic,
A woman just wants to protest openly at what she considers an injustice;
You class naming her at her request as “anarchy” ! Freedom of speech is not anarchy it is democracy !
Usually the interests of a baby in being reunited with its mother,coincide with her desire for the same thing so no balancing exercise should be necessary.As I already showed babies and toddlers are advertised with colour photos and birthdates in the Daily Mirror and other periodicals for adopters to select them like pedigree puppies,and “damn the kids privacy” when it suits the “SS” to ignore it ! Privacy for them is preventing the public knowing about the cruelty of social workers and their so called “experts”
It is an act of wickedness for family judges to take Article 8 that was clearly designed to protect families from the State and pervert it into an instrument for silencing any parent victims oppressed by public authorities. Article 8 was clearly drawn up to defend families not to smash them up and jail any who protested !
Why can you and others not see that anyone who feels wronged by the State should have the right to protest openly without being jailed for breaking gagging orders !
Allowing mothers [possible details of case redacted – Carl] to reveal their own names is an elementary freedom necessary to ensure that justice is not only done but is seen to be done! GAGGING THE OPPRESSED IS USUAL IN COUNTRIES RULED BY DICTATORS AND HAS NO DECENT PLACE IN THE UK !

57 Sceptics 'R Us May 1, 2011 at 00:42

Ian J. I appreciate your passion. What I am unsure of is whether or not you deal with the practical side of issues like these. Do you work in child protection? Do you participate in related case conferences? Do you deal with parents of children with disabilities? And so on?

If you do, what sort of issues of the type which arise do you draw the line at making available freely in public? There has to be some limitation. I don’t think any of us wish to see a situation which would allow the breeding of some brand new form of family scandal gossip sheet, able to drag the most intimate details through the gutter, reporting the parents allegations about each other, children’s about their parents, etc in lurid detail, and then maybe invite us to vote in online polls in favour of the father, the mother or the children, like some sort of Social Care X factor competition.

Everyone draws a line somewhere. Where is yours, in terms of what should be classed as available to the public and what not?

58 Sceptics 'R Us May 1, 2011 at 00:57

John H. Thank you for the response.

I understand the point being made. Insofar as any process is not working well, I agree that we should all do what we can to improve it.

However, having looked into the actual details behind some of these issues given elsewhere, and when I also see something as fundamental as being as egotistical as to continuously include detail which you have very politely been asked on numerous occasions to omit, it really does little to convince me that the rest of your arguments and proposals are likely to be at all perfect either

59 Jim Nately May 1, 2011 at 00:57

@ John Hemming,
Well, it’s nice to see you’re working to fix what you see as the flaws in the system in the press, as opposed to collating data, bringing in experts, producing a report and proposing legislation in the House. Which I agree, is certainly not what the legislature is for. Politics!

For the record, did [redacted – Carl. I must be consistent, Jim*] council actually apply to a High Court judge to jail [the woman – Carl] —as opposed to saying they could do so? I’ve read reports saying that [redacted- Carl] council made no application to have [redacted – Carl] jailed—and you’ve dissembled enough to suggest that I should actually put the question in that form.

@ Ian Josephs,
I’m sorry to have to put it so bluntly, but people usually believe the child should be with the parent right up until the point there’s a dead child. Then they kick the hell out of the council for not intervening.

You (and, to an extent, John Hemming) want to argue that people dissatisfied with the outcome of their cases should be able to then present their side of the story to the press without, presumably, the inconvenient evidence which indicates they should not care for the child.

Which is fine, until one day a council—fearful of bad press—holds off initiating care proceedings and a child winds up dead.

[*I want to make clear that you didn’t name the woman or a council, but referred to them in an anonymised form. My redaction is in the interests of anonymising them in a consistent way on this blog.]

60 John Hemming May 1, 2011 at 07:36

Two points
a) I have done considerable research and published it in various places as well as spoken in The House. However, the system is not responding hence I am having to build a wider campaign.

b) I am unhappy with the censorship on this weblog and will cease commenting.

61 IAN JOSEPHS May 1, 2011 at 08:25

SCEPTICS
Thank you for your interest in my activities.I am a British businessman living in Monaco .www.regencyschool.com and http://www.hli.co .uk being my pricipal language teaching organisations,having founded both companies.I originally became involved helping parents whose children were taken back in the early sixties as a Kent County Councillor appearing in court for six years against my own council and never lost a case.I have an Oxford law degree but never practiced law professionally except (as was allowed before 1989) applying myself for discharge of care orders with the parents as my witnesses.I stepped down voluntarily from the Council in 1966 to attend to my language school (then in Ramsgate) as it was going down hill due to lack of attention and only became involved again in around 2004 when I wrote to the Mail following the cot death cases and professor Meadows etc saying things seemed worse now than when I was involved before. The Mail forwarded on about 50 letters mostly from mothers asking for help to stop theirbabies being adopted by strangers.As I am reasonably well off,and have 5 adult children working for me,I decided to start a website and advise parents by phone and on my website as to their their best course of action.I also have financed several pregnant ladies making their escape to Ireland or N.Cyprus to avoid having their babies snatched at birth for risk of emotional abuse .Like any lawyer would, I give advice based on the facts they give me (after a rigorous cross examination by myself!).I get an average of 2 or 3 new calls per day (around 1000 in a year).
As to my views on publicity .I do not say the family courts should be open to public gaze;what I do say is that their “victims “should never be gagged.Parents should like rape victime be free to tell their stories if they wish and the “SS” should reply frankly as they are bound by the same rules as the rest of us no more no less and could reply if they wished !
If you believe in democracy you do NOT gag those who claim to be victims of the State from speaking out or jail them if they do ! By constant repetition I hope that is now clear.There is NO line to be drawn when those claiming to suffer an injustice wish to speak out!
This is the case in France,Germany,Italy,Spain,Belgium ,etc and was also the case in the UK until 1989 without the dire effects you predict !Scandal sheets exist already and suppressing the press is even worse than suppressing parents !If you do not break the Official Secrets Act you should be free to say what you like to who you like knowing that the laws of libel ,slander,and business protection,are there to land you in financial trouble (but not jail!) if you lie or betray your employers by breaking a freely made contract of confidentiality.GAGGING has no place in a democracy.Leave that to Messrs Mugabe and Gadaffi !!

62 IAN JOSEPHS May 1, 2011 at 08:53

Jim Nately
I repeat again that gagging aggrieved parents has no place in a democracy and did not exist in the UK before 1989.No children die of “risk of emotional abuse” (a concept unknown on the continent !).That is why they make good adoption material for the “SS” to meet Ofsted targets.
Repeatedly physically abused children( not just one slap from the hand or a single typical children’s accident) are poor adoption material so they are callously left to die like baby P,Victoria Climbé,and countless others!
I do not believe as you say that such children should always be left with parents,but I do say that those parents who do fight for their children to be left with them should NOT be gagged ! Simple as that !
Parents who endure a year or more of gruelling court proceedings trying to keep their children must love them, and none who have gone through that experience have ever harmed their children at a later date. At least,I can find no record of any such incidents.Those who “cared” for baby p and the like would run a mile before going near a court to fight for their children but even they should not be gagged.
Lastly your idea that parents should be gagged in case they frighten off timid Councils from pursuing them is an unreal and unjustified theory.Are the police frightened to arrest a criminal for fear of bad publicity?Only if the offence is so trivial it would make them a laughing stock maybe……Same goes for local authorities.

63 Carl Gardner May 1, 2011 at 11:43

John,

I’m sorry you won’t comment here any more – thanks for commenting before now. Of course there would be no need for “censorship”, as you put it, if you’d respected my wishes when commenting.

And I don’t think you ever did answer my questions (comments 34, 40 and 44).

64 Sam Smith May 2, 2011 at 16:03

Just to comment about how sad this is really. The topic John Hemming has raised is really quite worthwhile – namely that secrecy in the Courts in relation to a number of matters is undermining justice and the functioning of democracy.

The UK Family Courts and the Court of Protection make important decisions. They can decide whether to take a citizen’s child away or even whether someone should be allowed to have children or be sterilised. Unfortunately the system is expensive and under resourced. In addition conflicts of interest have crept into the system and many people are dissatisfied with the Courts’ effectiveness at keeping local authorities in check.

John is raising serious issues in which Courts have made facially wrong or destructive decisions and no one is allowed to challenge or scrutinise those decisions because if they do they are afraid of being sent to prison for contempt of court.

Our democracy and society runs on checks and balances. Almost all arms of the state are subject to public scrutiny and regard. One important mechanism by which this functions is that MPs are entitled to discuss any matter free of legal penalty. Even if it would otherwise be secret. Even if the MP may be misguided from time to time. (I do not think John Hemming is misguided).

So I agree with John. I think he was right to raise the cases he did. I will not name them here as Carl will doubtless delete them.

The right to petition the government of one’s state for redress of grievances is enshrined in the laws of countries around the world. In the United States it is part of the Constitution.

Bear in mind that the family courts, right or wrong, are *state bodies*.

Only in England, and only then by the most morally bankrupt, is it argued that Courts should be allowed to restrain people from talking to members of parliament.

This is one of the great tragedies of our age.

65 IAN JOSEPHS May 3, 2011 at 10:26

One day one of these lofty lawyers will try to answer all or at least some the points I make, and until they do I shall keep on making them ! The” right to protest against injustice” has NOT been confirmed by the Human Rights Act ,it has been DESTROYED by the Act or rather the judges’ interpretation of it ! Any mother whose baby has been taken at birth for risk of emotional abuse or other trivial reason who dares to protest is threatened with jail for violating the “privacy” of her own baby !A mother recently named in parliament who dared to talk to an MP was actually jailed 3 times totaling 50 hours when 7 months pregnant as reported in the Sunday Telegraph. Article 8 was clearly designed to PROTECT the family from interference from any public authority not from one of its own members,!The judges have used the clause not just to protect the wealthy from publicity about sexual indiscretions,they have used it to protect social workers,experts,and the judges themselves from anyone exposing the injustices taking place in the family courts ! The hypocrisy is lamentable when judges who pretend such concern over privacy for babies allows local authorities to advertise groups of children for adoption like pedigree dogs, in the Daily Mirror and other periodicals with photographs,dates of birth,and character descriptions making them easily recognisable by parents, neighbours,and for older children schoolmates and friends ! Don’t blame the “Act”,blame the judges obssessed with covering up any blunders made by the State apparatus in the family courts,and believe me there are hundreds

66 Jim Nately May 3, 2011 at 13:45

It appears John Hemming ducked out of this discussion before having to admit nobody attempted to jail the woman in question. The Indy reported on a case with exactly the same facts, in which the woman states the council was not seeking to have her locked up. [I haven’t linked to it because I don’t want to break your rules on anonymity. However, there’s a link from the Pink Tape blog…]

Now either this is a most incredible coincidence, or Hemming is wrong to claim there was an attempt to imprison her. Now, I don’t want to call an MP a liar (not that I can prove he actually has willfully misled the public) but he’s certainly been reckless with material facts. Either he was being disingenuous or simply didn’t bother to find out the truth.

@ Ian Josephs
The reason I disagree with you can be neatly summed up in your concept of the Article 8 right to family life. That right doesn’t attach to a notional family (whatever the legal definition of a family would actually be) but to individual people, including children.

The parent that has just had his/her child removed has Art. 8 rights to their family, sure. But the child taken into care has Art. 8 rights to maintain their privacy, independent of their parent. Naturally the parent assumes it is in the best interests of the child to break confidentiality and further their attempts to protest. But no man may be a judge in his own cause.

“The family” cannot and does not hold rights. And the individual rights of the child and the parent must be weighed. The child is entitled to invoke its rights against the parent(s).

Finally, you assert emotional abuse is trivial. Sadly, qualified medical professionals appear to disagree with you.

67 Anonymous May 3, 2011 at 15:29

JIM NATELY.
You say “But the child taken into care has Art. 8 rights to maintain their privacy, independent of their parent” Do you really believe a baby’s “right to privacy” is sufficient reason to gag a mother who believes the baby should never have been removed at all?
May I remind you also of the following:-

The Human Rights Act also has a specific provision which seeks to bolster the freedom of expression side of that balance. Section 12 provides

The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to

(a)the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b)any relevant privacy code

A mother losing her baby to a “prediction by an expert” that there was a mere risk of future emotional abuse is surely journalistic material of public interest and hardly likely to damage a baby who can neither talk nor read .This child might however be badly damaged later when the judge allows photos of the now easily recognisable toddler to appear in magazines for adopters to select children along with their pet cat !
Judges are trained to look at the intention of legislators before interpreting the laws they have passed.In this case there seems little doubt their intention with regard to privacy was to prevent unwarranted intrusion by the State,not to gag any member of the family wishing to protest against such intrusion !
Lastly, nobody ever died of emotional abuse,much less the mere “risk” of it !No country in Western Europe would employ such a term (since it has no definition) and neither did the UK until 1989 ! REPEATED physical abuse is what kills (not one slap on the leg !) . Regular and thorough medical examination of those suspected of being beaten could save lives , at present lost when resources are wasted on endless court cases against parents willing to endure anything rather than lose their children . Parents like those of baby p would have run a mile from any court but thorough medical examinations could have saved that baby’s life !

68 IAN JOSEPHS May 3, 2011 at 18:39

Free Speech is Free Speech whatever the situation and wherever you find it !The laws of libel and slander exist to prevent defamation.Nothing however protects parents from neighbours gossip when children confiscated by the State mysteriously disappear. Any attempt to explain what happened and to justify themselves ,and parents are threatened with jail !
I really do not understand how any intelligent person with an ounce of compassion can justify legal gagging of a mother whose child has been taken for example for “not engaging with professionals” or for” risk of emotional abuse !.”Many in this situation have even been told (wrongly)that they cannot discuss the situation with their immediate family !
IMPORTANT !! Article 8 of the human rights act was clearly drafted to protect families from State interference,and it is utterly perverse of judges to interpret it instead as a license to gag parents who have been oppressed by the State !
It is not a question of “rights “for either families or children.The fact is that the judges are trained to study the intention of those who drafted a new law before interpreting it .The intention was to safeguard the family from interference from “public bodies” not to gag any parent that dared to complain about such interference !Certainly not to put the privacy of a newborn baby that could neither speak nor write ,above the right of a mother to speak out and object to her baby’s removal.
As long as there is no infringement of the official secrets act everyone should be free to say what they like when they like , without judges and social workers rushing to protect their own deplorable conduct by legally gagging everyone in sight ! Sticks and stones etc …..Yes,I know racial abuse is disgusting but making it a criminal offence is an absurdity when applied to petty squabbles between persons of different racial origins.We all have mouths so it makes more sense to answer back than to call for the police !
Nobody died of emotional abuse ,so as a matter of priority the “SS” should stop wasting money and time in countless court cases pursuing parents who have never harmed their children and obviously love them judging by their desperate attempts to fight the courts and recover them. .Instead they should give frequent and thorough medical examinations to children at risk of repeated physical harm .That would have saved the lives of Baby p and many others from parents and carers who never have fought in the family courts to recover their children ;They would have run a mile from any court !

69 Paul Randle-Jolliffe May 7, 2011 at 16:58

I think what the press focus has missed is that John has also highlighted the fact that courts have ordered that people do not talk to their MP’s and that Local Authorities have placed strictures on people many times under threat of court sanctions to not do the same and that this is contempt of parliament for which people could be locked up in St Stephen’s Tower.

The fact of John Hemming raising the names of people under parliamentary privilege such as this for several reasons of which the injunction issue is merely the tip of the iceberg regarding what is criminal acts being conducted in proceedings under the cover of secrecy and the fact that neither the family courts nor the police will address these, the courts say they are civil courts and its a matter for the police and the police wont do anything unless a court refers it, a classic catch 22 and MPs who all know about the issues are loath to interfere with Judicial Proceedings.

I have have been involved with several high profile cases including those written about by Christopher Booker as well as many others and there are clearly definite patterns of criminal behavior by those in authority including LA SWorkers, LA Legal Depts and even some Judges as well as many and common quite serious procedural breaches and many SWorkers who are not properly registered with the GSCC.

I have tried to report crimes, the police are not interested and if by some fluke they do take a report it will actually get refereed to the Local Authority.

Even when Tim Yeo MP reported in Parliament a Kidnapping by Suffolk County Council and I have tried to report this to the Police as it is a case I have dealt with nothing hapend in fact a DCI said they refuse to talk with me or any other witness even Tim Yeo.

I will list some of the crimes that are common
Fraud by Misrepresentation
Creation of False Evidence
Withholding Evidence
Suppression of evidence
Fraud
Coercing Children against their wishes
Criminal Harassment
Threatening Behavior
Perjury
Perverting the course of Justice
Kidnapping through force and fraud

There are more though but remember this is by people charged with protecting children who get away with this under the cover of secrecy.

Some have even tried to bring private prosecutions but the courts will not allow it, one court even said, there are clear crimes but family law is separate from other law and cannot be prosecuted!

One case I dealt with a few days ago, clear evidence of crimes was presented to police officers who were shocked, but said its a civil matter to be taken up with the family court judge.

I will not out of respect name the Lord Justice here who is involved in a clear case of Kidnapping and attempts to adopt a very young child through fraud with his express knowledge!

These issues are affecting tens of thousands of people in the UK. MPs and I quote the current Housing Minister are worried to address opening the “Can of Worms.”

So what JH MP is trying to do is crack this open! As am I an actually many thousands of others!

70 Paul Randle-Jolliffe May 7, 2011 at 17:08

Let me ask the legals here.

Is it acceptable for any public authority or for anyone acting for it to exercise their public functions through the use of criminal acts that can and are kept secret and for which there is no means of redress?

Because this is one of the means by which both public and private family law operates and this does not fit any system of law that any right minded person should be prepared to tolerate or even is it any proper system of law as it is a law unto itself!

71 IAN JOSEPHS May 7, 2011 at 19:10

EXAMPLES OF HOW RULES OF EVIDENCE HAVE BEEN DISCARDED IN THE FAMILY COURTs WHEN GRANTING INTERIM CARE ORDERS.

1:- Statements from the local authority are shown to the judge but rarely to parents.Family and friends of parents are routinely excluded from the court but groups of social workers are allowed to stay in the court to listen to their colleague’s testimony whether they are witnesses or not.

2:- Parents representing themselves are denied the opportunity to cross examine witnesses appearing against them.Judgements,reports from experts,and position statements are either witheld or given to parents at the last minute (too late to read and analyse them properly).

3:- .Parents are routinely refused permission to call for a second opinion when “experts” and Doctors have testified against them.If parents record contacts with their children, or interviews with experts or social workers judges routinely refuse permission for these recordings to be heard yet they always allow recordings and video evidence to be heard if produced by police or social workers

4:-Parents whose children have been taken are routinely and wrongly told that they may not talk to ANYONE about their case.

5:-Parents are jailed if they protest publlcly when their children are taken.They are also jailed for “breach of the peace” or “harassment” if they dare to trace and then contact their own children after adoption.Parents are therefore” twice gagged” contrary to the Human Rights Act ,Article 10 entitling all persons “freedom of expression”,ie freedom of speech.

6:-Local authority barristers in court often read out statements from absent persons as though they are themselves witnesses but they cannot be questioned.

7:- Most solicitors refuse to let their clients speak and then agree to all care orders demanded by social services.

8:-Judges routinely castigate parents who wish to speak or who represent themselves even though they have the right to do so;Their evidence and their arguments are usually ignored in the judgements.

9;-Parents representing themselves are often given an hour or two’s notice to appear in court but solicitors are given weeks !

10:-Parents are punished for “risk” ie not what they have done but for what they might do in the future! “Risk of emotional abuse” is favourite because there is no legal definition of this and it is usually impossible for parents to defend themselves against “predictions” by so called “experts”.

11:-Judges give social workers the power to withold parent’s contact with their children” in care” as a punishment for saying they love them and miss them or that they are fighting to get them back .They use this power to gag parents and force them into complete submission !

12:-Parents are in effect condemned for offences against their children on “probabilities” 51% instead of beyond reasonable doubt.

13:-Parents who were themselves in care or who were abused in childhood are often judged unfit to be parents as a result.

14:-Parents often forfeit their children for “failing to engage with professionals”

15:-Parents faced with forced adoption lose their children for life, without being allowed a hearing by jury.

16:-Under the UN Convention on children’s rights children have a RIGHT to be heard in court but are usually denied that right.

17:-Solicitors routinely tell client parents to agree to interim care orders or they risk never seeing their children again.A lie !

18:-Social workers are legally obliged to place children with relatives if possible but either ignore this or find pretexts to fail them on assessments

19:-Human rights to free speech and freedom of movement are breached by gagging orders and confiscating passports.

20:-Parents are routinely forbidden to call witnesses on their behalf contrary to human rights.Family and friends are wrongly prevented from entering the court.

72 Paul Randle-Jolliffe May 8, 2011 at 17:49

well said ian

73 txwikinger May 16, 2011 at 19:46

@John Hemming:

John Hemming said: The problem is that when the judicial process is so badly flawed that it is essentially broken then the only real option is to emigrate.

I agree with this supposition and have followed it. I used to live in your district (you have been my MP), but we have decided that there are better places than the UK to live. The badly flawed judicial process was not the only reason, however it certainly confirmed the decision to emigrate to be the right one.

74 ian josephs May 18, 2011 at 12:14

169. Notwithstanding the mother’s reassurances, the father raised the same issue during his police interviews. The police officers latched on to this, treating it almost as if it were a confession. The interviewing officers did not have the benefit of the medical evidence that is before the court. Had they been aware of the medical evidence they would no doubt have realised that this ‘explanation’ from the father does not stand up to close scrutiny.

The above extract from the Bellamy judgement shows that the results of the x-rays were kept secret from the police !
Certainly neither Christopher Booker nor the parents were told before the departure to Ireland where no treatment at all was required for any injuries……
Be that as it may,Bellamy knew quite well that Christopher could not report fractures that were kept secret from him and from the police,but nevertheless castigated him for not writing about them !
Hypocrisy or Deliberate deception? Take your choice

75 legal advice November 24, 2012 at 01:06

Has’nt a number of people who forwarded links on twitter naming Lord McAlpine as one of the those involved in care home abuse in North Wales now finding themselves in deep brown stuff…never saw the point in repeating something i did not know to be 100 % accurate in a public forum myself. ….maybe i am old fashioned and prefer to gossip over the garden fence….

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