Margaret Hodge
Expert Witnesses in Family Court Cases
Oral Statement by Rt Hon. Margaret Hodge MP
Expert Witnesses in Family Court Cases
House of Commons
Mr Speaker I share the deep concern that has been expressed both in this House and by the wider public following the Court of Appeal's judgment in the appeal against the conviction of Angela Cannings.
This has been a tragic case and we recognise that there may well be other cases where parents and children have been wrongly separated. With the passage of time it is extremely hard to put right past wrongs. But where such wrongs are identified we must do what we can. At the same time, it is important to acknowledge that there are cases where children have, properly, been separated from parents who have harmed them or their brothers and sisters.
Cases where intervention has served to safeguard the children. Child abuse is a real issue which can lead to injury and death. It is essential that we maintain our vigilance as a society in responding to this wrong. We must acknowledge the important contributions of those professionals - paediatricians, social workers, police officers and others - who work to safeguard vulnerable children. I pay tribute to the vital work these professionals undertake on our behalf.
However the judgment of the Court of Appeal did make clear that, in relation to sudden unexplained infant deaths, where the outcome of a criminal trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, it will often be unsafe to proceed.
I therefore welcomed the announcement by the Attorney General on 19 January of his intention to consider 258 past convictions for the murder, manslaughter or infanticide of children under two, in order to ascertain whether the court decision may have been unsafe. The intention is that such cases might then be looked at further by the Criminal Cases Review Commission or be the subject of an appeal.
Since the Court of Appeal judgment, I have given careful consideration to its consequences for cases dealt with by the family courts. The implications are not straightforward. In a criminal case, the court is concerned only with the guilt or innocence of the accused. If there is any reasonable doubt about the guilt of the accused, he or she should go free. By contrast care and adoption cases makes the best interest of the child paramount.
Whilst it is ultimately a matter for the courts to determine individual cases which come before them, it is right for me to give proper guidance to local authorities as to how they should proceed.
I will therefore be writing shortly to councils with social services responsibilities to ask them to take the following action.
First, I ask them to consider those cases which are affected by the Attorney General’s Review. In those cases, councils should stand ready to act in the light of the outcome of that review.
Second, within the next four weeks, Councils with social services responsibilities should identify and review current cases. These are cases where they have commenced proceedings in relation to a child and where the court has not yet made a final order.
In these cases councils should consider with their lawyers the implications, for those proceedings, of the Court of Appeal's judgment in the Cannings case.
Third, within the next twelve weeks social services departments should, together with their lawyers, identify those cases where a final care order was made in the past, which involved harm to the child or a sibling, and where the grounds for making of an order depended, exclusively or almost exclusively, on a serious disagreement between medical experts about the cause of the harm. In such cases, councils should again consider, with their lawyers, whether there are now doubts about the reliability of the expert medical evidence. If that is so and, in the light of the child’s current circumstances and current best interests, they should then consider whether to apply to the court for the care order to be discharged, or whether to support any application that may be made by the parents or the child.
Councils, when reviewing cases, will also need to take into account any fresh case law judgments from the appeal court that may be relevant.
The number of cases falling within the category which I am asking councils to review is likely to be manageable, though I do not intend to speculate about the precise number. Our best estimate is that it may number no more than the low hundreds rather than for there to be thousands. I am not suggesting either that it will be appropriate in every case, following a review, to apply for the discharge of the original care order. The decision must depend entirely on the circumstances of each case.
Councils are already under a duty to review the cases of children, who are specifically the subjects of care orders, at least every 6 months, and given the range of public concerns that have been raised, it would not be right to impose an arbitrary limit on the types of case which should be reviewed.
The key determining factor is that the making of the care order depended exclusively or almost exclusively on a dispute between medical experts.
Where applications to the court are made, whether by the local authority, the parents or the child it will be for the court to decide, in all cases, if the care order should be discharged. The President of the Family Division has set out the arrangements which are to be followed by family court judges in the light of the judgment in the Cannings case. Where applications are made, cases are to be listed as soon as possible for directions before a High Court Judge in the Family Division.
Let me now consider cases where a child has been adopted
There will be children who were taken into care in these circumstances and who have since been adopted.
We all accept that adoption is the best option for many looked after children who cannot live with their birth family. In the overwhelming majority of cases adoption gives a child the chance to be part of a loving family for life.
But I also recognise that, following the Court of Appeal's judgment, there will be concerns in cases where an adoption order followed on from a care order that had been made on the basis of disputed expert medical evidence.
However, as I have already said, the position in civil cases is quite different from that in criminal cases. After adoption has taken place there are, of course, the paramount interests of the child to consider and the interests of the adoptive parents, as well as those of the birth parents. The whole basis of adoption is that it ensures permanence and finality to all parties. For that reason, only in the most exceptional circumstances have the courts been prepared to set aside an adoption order.
It is not for me or any of us to say whether any of the cases we are concerned with would fall into this category. These are very complex issues and are, of course, a matter for individuals and the courts.
It would be wrong for me today to give a false impression about the scope for re-opening existing adoption cases, when in truth this is extremely rare. That would be to give false hope to those who might wish to argue that the original adoption was based on flawed evidence. It would risk causing distress to adoptive families where children are happily settled. That would be quite wrong.
If birth parents are worried they should take their own legal advice and those of a number of organisations who do provide support for those parents.
If adoptive parents are worried they should get in touch with the agency which arranged the adoption to seek further information and support.
If adopted children are worried they should talk first to their adoptive parents or, if that is difficult, to another responsible adult.
Under the Government's new adoption support Regulations, which came into force last October, every local authority is required to have an adoption support services adviser. This may be an appropriate point of first contact.
Mr Speaker these are difficult and sensitive issues to which there are no easy answers. My statement sets out a route forward for the period ahead within the limits of my ability to act.
With this review and with the current and forthcoming judgments in both care proceedings and appeal cases in the Courts we will ensure that we are acting in the best way possible to protect the interests of children both today and in the future.
I commend this statement to the House.
