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Without Prejudice

In this week’s Without Prejudice podcast, Financial Times General Counsel Tim Bratton joins Charon QC, David Allen Green and me to talk about:

  • contempt of court in the week Twitter typed two fingeredly to the courts
  • privacy law, the media, and that footballer
  • whether we have privacy law, a tort of privacy, or what (including a brief spat between David and me),
  • John Hemming MP, and the use and abuse of Parliamentary privilege, and
  • the role of General Counsel and the in-house lawyer, focusing on Tim’s work for the FT.

We had fun – and I hope you’ll have fun too if you choose to listen. Do please comment about the issues we discussed.

Listen to the podcast here or subscribe through iTunes.

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  1. How should we balance ve wight to pwivacy wiv ve wight to fweedom of expwession?

  2. Free Speech should mean no gags ! If we do not incite others to violence or breach the official secrets act we should always be free to say what we like when we like.We were all born with mouths not gags !
    It is shocking that rich men can legally gag their mistresses,and now, luckily facebook,and twitter make it impossible to do so effectively.The law says the judges can order injunctions of all kinds and we have up to now said “ok”. The law also says that MPs have the privilege to say what they like in the Commons debates with inpunity regardless of any injunctions,so why moan when an MP like John Hemming does just that ? Surely one of the reasons that privilege exists is as a safety valve against judges who gag people as an act of subservience to an all powerful State and those in the “establishment” who like to think they have the right to tell us what is good for us?
    If you want a private life don’t become a celebrity of any sort,basking in the limelight one minute then protesting when your frailties are exposed.
    The serious problem however is not rich old men or sports icons and their sexual proclivities,but the dead hand of the apparatus of the State using the gag to suppress anything that might embarass it or those who govern us.
    “Damian Green” “the Scott affair” “Ponting” are examples of where the government of the day tried to silence awkward persons and suppress awkward facts by intimidation and legal gags.
    The fault again is with the judges who allow injunctions to be used not for the public good ,but to save certain powerful folk embarassment !
    Even worse the UK is the ONLY country in the world to GAG parents who wish to protest publicly when their children are taken.This,again is an outrage against our democratic freedoms
    The right of all citizens to protest publicly against what they perceive to be oppression by the State is what separates democracy from tyranny.
    Long may it remain so.

  3. @Ian Josephs. In your first couple of lines you betray the weakness of your particular point of view, which readers of this blog are all too familiar with. Why should incitement to violence or breach of the OSA be outside the right to free speech? Because that’s where you have decided to draw the line? Or because that’s what the criminal law says? What about incitement to racial hatred, defamation, threatening words or the tort of breach of confidence? Where do they lie on your spectrum of what should and should not be allowed? The problem is you have decided to set the boundary where it suits you and your specific campaign, just as John Hemming did in his use of parliamentary privilege.
    Most reasonable people, whether or not they like the Human Rights Act, accept the need for some balance between freedom of speech and the right to freedom from intrusion into private and family life. This of course presents the same problem of where the actual boundary lies, and Parliament in their wisdom felt it was better to let judges decide based on the facts in each individual case. Personally I feel rather happier leaving this decision with the courts than with the editor of the News of the World, whose motives owe nothing to equity and everything to circulation.
    On the subject of Mr Hemming, that well-known champion of families, I find it interesting that he was neither a co-sponsor nor felt able speak up when Charlie Elphicke’s private member’s Children (Access to Parents) Bill was given a First Reading on 29 March of this year. Nor was he a co-sponsor of the Grandparents (Access Rights) Bill when it was introduced. And of course he has yet to put forward his own private member’s bill to correct the supposed unfairness in the current family court system. Let’s hope he uses the Second Readings of these bills to air his concerns. That would be a better use of Parliament than grandstanding over footballers who have nothing whatsoever to do with his and your crusade.

  4. Andy,Thank you for presenting for the first time a logical criticism of my contribution to the blogs! No I am not really “drawing a line ” to where it suits me ,and I am quite willing advocate the limiting of free speech to not infringing the criminal law,excluding injunctions (if indeed they do fall into a criminal character when breached)limiting free speech at the simple behest of judges.
    I can only repeat that the principal need for free speech is to allow the citizen to go to the media and protest against perceived oppression by the State .Any attempt by the State to prevent peaceful verbal protest by mothers whose children have been taken (not even a march!) is a disgrace to democracy,does not exist elsewhere in the “free world”,and represents a first step towards a totalitarian regime.The use of Article 8 was clearly designed by the legislators to prevent unwarranted intrusion into private family life by a public authority.Instead our judges have perverted this purpose by interpreting it as a gag on parents to prevent them criticising the very public authority that is breaking up their families,and from which article 8 is mean’t to defend them !
    Parents breaching the privacy of new born babies by complaining when the “SS” snatch them !What rubbish when privacy is casually discarded by adverts in the Daily Mirror advertising easily recognisable children for adoption like pedigree cats or dogs!Privacy does not matter then because it no longer serves the purpose of the hypocrites who only mention it when it suits them.
    The freedom of citizens to protest against what they believe to be oppression by the State is the fundamental difference between a free society and a dictatorship. Do we really want to continue to go down such a dangerous road?

  5. Andy, thank you for the first pertinent criticism I have received concerning my contributions to the various blogs.Yes ,maybe I should simply suggest limiting free speech to not breaking the criminal law as it stands.I am not sure whether breaking an injuction limiting free speech is a breach of criminal law but if so I exclude such injunctions as they usually come into being at the behest of a single judge .
    Article 8 was clearly drafted to give individuals and their families protection from intrusion by public authority.Instead the judges have perverted this article and used it to prevent protest from the very people it was designed to protect!Gag the mother in case she breaches the privacy of her new born baby ? How ridiculous and hypocritical when we all know the real privacy being protected is that of the “SS” and their “expert” witnesses.Privacy is cast aside like the oldest of old gloves when easily recognisable toddlers are advertised for adoption in the Daily Mirror,be my parent, and other magazines.The kids are exposed but the privacy of social workers and “experts” is still safe !
    The ability of any citizen to go to the media and protest against perceived oppression by the State is the cornerstone of any free democracy.Do we really want to risk losing it?

  6. @Ian Josephs. I’m glad you have moved the discussion back to the family courts and away from footballers and their injunctions, since the two things are utterly separate in their purpose and operation. None but the most paranoid could claim that rich individuals obtaining injunctions was somehow the work of an oppressive State on the road to totalitarianism.
    I admit to scant knowledge about how the family courts operate, but it seems to me that the default position is that such matters falls squarely into the category of private and family life (even for people who are otherwise in the public eye) and as such the hearings are routinely held in camera, or at least not in open public. It seems that this is what underlies prohibitions against parties in such cases going to the press. An aggrieved parent is not necessarilty the best person to judge where the mystical boundary between free speech and respect for family life may lie.
    But from what you say here and on previous occasions, the complaint is that there is no satisfactory route of appeal for a parent in that position. I cannot comment on that through lack of knowledge, but if true, then clearly parliament should rightly examine the issue. Given the two Bills I mentioned earlier, it seems to me that Parliament contains many members of both houses who are already sufficiently concerned about such matters and it does not need the Sun newspaper to whip up a campaign based on a single case for remedial action to be taken.
    Clearly one way of opening up the family courts to scrutiny is the proposal to allow limited access by the press, subject to suitably anonymised reports being published. But as we have seen, that may not prevent irresponsible reporting on Twitter for titilation and possibly out of malice, which can only be to the detriment of family justice and the majority of families who do not want their dirty linen washed in public.
    Apologies to Carl for going further off topic than I had planned.

  7. Andy , you say you do not know too much about the family courts,so here is a summary for you and others similar that I was sent by a distressed parent yesterday…………..
    The beginning is a referral. It can be annonymous or non existent but that
    will start the process off and the social workers will want to come round.
    Referrals are routinely made by any government establishment, schools,
    nurseries, libraries and can be for all sorts of small things. Often
    referrals are made by people you have asked to help you, like domestic
    violence help lines, child obesity help centres, counselling services,
    alcoholics annonymous etc. Every government agency has had Child Protection
    training to help them look out and record anything such as a child wearing
    old shoes or a child being quiet or disruptive.

    They will tell you that they believe you and your child will benefit from
    being on a child protection plan and they will arrange a meeting. The child
    protection plan will aim to have you taken off the plan after you have been
    checked every couple of weeks, had a core assessment and had core meetings.
    A bunch of people you don’t know will be there and they will have privately
    (without you being there) been told that you are a risk to your children.

    Once the plan is agreed they will start calling the police to make daily
    spot checks. The police will comment on your demeanor – were you under the
    influence, crying, is your house tidy etc. They will come round several
    times a day to check. Eventually you will get annoyed with this and tell
    them to go away. They will then say you are not cooperation with
    professionals and are preventing safety checks so they will apply to the
    court for a care order.

    At the first hearing you will be asked to sign a Consent Order to produce
    all your medical and criminal records, allow the Social services to speak to
    any professional about you or your children (including your bank manager or
    anyone they want) they will insist on the children staying with a foster
    carer a couple of nights a week to give you respite where they can have
    access to the children while you are not there. You will also have to
    consent to a psychological assessment. You will be told that if you don’t
    consent then the judge will make an interim care order and you won’t get
    your children back that day, they will be collected from their school or
    nursery immediately after the hearing and taken to stay with strangers. So
    you sign the Consent Order.

    A few days later you will be back in court for another hearing. This time
    the court will order the children be taken into care as a precaution because
    they need to draw a line in the sand! Now they have got the Consent Order
    they can start digging into every aspect of your personal life. They will
    get healthcare records, school records, hospital and doctor records, old
    care records if you were ever in care. They will discard everything positive
    in the records and make a note of anything negative in their Statement to
    Support a Care Order. Alot of the things noted you will never have known
    about previously and will never have had a chance to challenge.

    You will be offered a contested hearing and you will be told that you will
    get the Local authority statement for you to respond to in time for the
    hearing. While waiting for the hearing the foster carer will quiz the
    children on whether they have ever been punished by you or if they have ever
    felt unhappy or scared. The children will think hard and might come up with
    examples which will be noted down, notwithstanding that these examples may
    have been from years before and from the perspective of a very small child.
    eg. Yes, once my mum smacked me and my mum shouts at me sometimes. Once she
    told me she would cut my hair off if I get headlice, once I saw her cry etc.
    These will be noted in the foster carer’s daily logs and given to the Local
    authority to be added to the evidence against you to support the claim that
    you emotionally abuse your children.

    On the Friday before the Monday hearing you will be sent the statement from
    the Local Authority. There will be so many allegations pulled from all your
    records and you will be in utter shock because it will make you look like an
    atrocious parent. You won’t be able to get legal advice before the hearing
    cause it’s a weekend. You might try to write a statement in response but you
    are likely to be in a very distressed and nervous state, not know what is
    going on and in utter shock.

    At the contested hearing they will say the threshold has been met and
    therefore only a change in circumstances will get your children out of care.

    Once the Court has given you an ICO every 28 days you can oppose the renewal
    of the Interim Care Order. The ICO is normally renewed automatically by
    consent on the basis that your circumstances have not changed and therefore
    the threshold is still met.

    The Judge rarely accepts any submitted change of circumstances as adequate
    and submitting changes of circumstances is one of their scams to get you to
    admit that there was something wrong that you need to change. This is normal
    practice although precedent says that the Judge has to test whether the
    threshold has been met every 28 days – this NEVER happens.
    You are able to ask for a hearing every 28 days in which case to present
    your change in circumstances in opposition to the renewal but the Judge
    usually just asks you to write in and state what your changes are and then
    says that it is not enough to justify a hearing! Totally unlawful and
    illegal if you ask me but that’s what happens. You can’t appeal an interim
    Care Order usually because they only last 28 days and it takes longer than
    that to get to the appeal hearing so by the time you appeal the order has
    expired and your appeal will fail. I do believe though that you should be
    able to argue in your appeal that you should still be able to appeal an
    expired order because the future orders all depend on the threshold being
    met for the expired orders as the threshold is not freshly tested.

    As the threshold is so low any child on this planet will pass it. Ie on the
    balance of probablity is the child at risk of emotional harm. Of course it
    is. We live life on Earth. It is an evil destructive place to live. Every
    child is at risk of emotional harm on the balance of probability. Especially
    where balance of probability means that any allegation made by a social
    worker will be fact unless you have evidence to prove it is not fact. How
    can you get evidence to prove your child will never suffer from emotional

    So then they proceed towards a final hearing and send you to all sorts of
    dodgy corrupt psychologist who is guaranteed to say you are incapable of
    caring for your child. You will go because you don’t know your rights and no
    one is explaining them to you.

    You will at first have been offered contact with you children at a rate of 3
    hours per week. At the contact your older children will be looking to you to
    tell them what is going on. You will try to tell them that you are fighting
    for them but you will be told by the supervisor that you are not allowed to
    discuss adult issues with the children and are not allowed to tell them
    anything about the proceedings or show any emotion. The contact sessions are
    for you to enjoy and if you don’t get on and happily enjoy them then you
    will lose them. Your children will be totally distressed and pissed off and
    will want to know why you seem so emotionless and happy when they are stuck
    with strangers. Your younger children will scream uncontrollably whenever
    you leave after the hour and the supervisor will make allegations that you
    squeezed or pinched your younger child to make them cry. Then the Local
    Authority will reduce contact, at first because they haven’t got any
    supervisors available.

    They will reduce contact to 1 hour a week as soon as possible. This will
    have a devastating effect on the children and the children will start
    playing up. you and the children will be under so much pressure to enjoy
    that one hour a week that it will become impossible, especially when that
    one hour is the same day you have a court hearing, a solicitors appointment
    a meeting with the local authority or cafcass where you will be told even
    more false allegations and so you will go to contact feeling totally wound
    up and scared about what is happening to you and your children.

    The LA will then apply for a S34.4 Order because you can’t behave
    appropriately (like some CBBC presenter) in contact. They may make an
    allegation that you abused your child or the social worker because they know
    that on the balance of probability you are guilty unless you have evidence
    to prove your innocence and as it is their contact centre you won’t have any
    evidence. they also won’t let the children give evidence because this is
    considered to be emotionally abusing the children.

    You will also be prevented from seeing the children because you have been
    telling the children you love them and miss them. If your children or you
    cried or showed emotion during contact this will also be considered to be
    emotionally harmful/neglectful to the children.

    You may have shown elements of anger at the social worker in your tone of
    voice for lying and being abusive but this will show YOUR unstable mental
    state and therefore your risk to the children so you will be prevented from
    seeing the children at all by the S34.4.

    While you were allowed contact the times of contact will have been
    determined by social services. The times are likely to be in the middle of
    the day during the week and never on weekends or bank holidays. If you
    normally worked or studied at those times before the children were taken you
    will have to give up your job or your studies because if you don’t you will
    lose your children. the Local Authority will not arrange contact at your
    convenience. It is when they say or not at all.

    Once you have lost your job and your income you may then lose your house,
    your car, get into serious debt and this will start allsorts of new
    problems. If you are lucky to keep your home you may find it difficult to
    live there because it will be so distressing to see all the children’s toys,
    clothes and empty beds around you. You will miss your children terribly and
    feel an overbearing sense of loss.

    You will become depressed and you won’t want to associate with your old
    friends because they all have children and they just want to go to the park
    and do child orientated things which you will now find heartbreaking,
    without your children. People that didn’t know you will have labeled you as
    a child abuser and won’t be able to look at you or talk to you. Neighbours
    will think you are trouble because they will remember the police always
    coming round your house shortly before your children were taken. Your family
    will have turned against you because the Local Authority will have contacted
    them in their duty to consider family and made many unfounded allegations
    against you and presented them with their statement showing you are an
    atrocious parent.

    You may have by this time got so depressed and distressed that you have
    either gone to the doctor for some mind numbing drugs or maybe you will turn
    to alcohol. You will feel isolated, a failure, empty, depressed and you will
    be desperately missing your children.

    The the Psychologist appointment you agreed to will come through and you
    will be Psychologically examined. The psychologist will ask you allsorts of
    questions based on the information provided by the Local Authority and the
    Guardian. You may show that you are upset about all the false allegations.
    You might say you think you were treated unfairly. You might cry. Whatever
    you do the Psychologist will say you have no insight and you are emotionally
    unstable and recommend that your children are found a permanent placement.

    Then there will be a final hearing. Anything that has happened over the
    previous 9 months or so will be added to the social services statement to
    show that you are unable to care for your children. They will then make a
    final care order.

    Once they have a final care order you can only apply to have it discharged
    on the same impossible change of circumstances every 6 months. But as soon
    as they get the Care Order they will start adoption proceedings. (the
    children may have been with prospective adoptive parents under the interim
    care order as a foster adopter) The children need to be placed for I think
    10 weeks before the LA apply for an adoption Order. You can oppose a
    placement order and an adoption order on a change of circumstances but the
    change does not need to be significant. However the Judge will ultimately
    say that the welfare of the child is their priority and go through the
    welfare checklist. They will always find that it is not in the child’s
    interest to be returned.

    The LA and guardian will have written a report saying the children have
    settled with the adoptive family and praise the adoptive family as if they
    are perfect people from another planet and at the same time they will say
    that the children have lost their bond with you and repeat all the
    allegations they made of you. Some of these allegations you will have
    admitted to under duress because they will have told you ‘If you admit to
    this you can have your children back, or if you admit to this you can see
    your children’. These allegations will all be fact now because you didn’t
    have the evidence to disprove them and then they will arrange a goodbye
    contact with clowns and balloons and you will wave goodbye to your children
    forever, and you will never know what happened to them. Many of these
    children will then be trafficked to paedophile rings and used in medical

    So that’s a summary of how it all works. Your job is to stop it!! Don’t
    expect your solicitor to stop it. Your solicitor will always tell you this
    is normal practice and you don’t have grounds for appeal and you won’t get
    legal funding to appeal. You solicitor will always be too busy to make any
    enquiries and will take a week or more to get back to you.

    If you tell your solicitor that you expect them to fight for you because you
    need justice and there must be something wrong with what they are doing
    because you love your children, they were healthy, happy, thriving in your
    care. They were top of their class. Their first health assessment said they
    were perfect in every way. You solicitor will say you are being unreasonable
    and will write to the court to come off the court record and discharge your
    legal aid certificate. Leaving you to fight this horribly unjust system on
    your own.