Courts must decide what is best for children
HUNDREDS of children from 220 families were put up for adoption in Northern Ireland without the consent of their parents or guardians during a six year period, it can be revealed today.
The figure was obtained by The Detail as part of an investigation into our family court system.
The “freeing orders” were made during the years 2005-2010 and in each of the 220 family cases more than one child may have been freed for adoption. They may not all result in a final adoption order being made.
Many other life changing decisions are regularly made behind closed doors within these courts.
As well as children being taken away from their families, custody battles are fought, allegations of abuse within families are dealt with and plans for forced marriages involving young people have also been thwarted.
The family courts currently fall within the Department of Finance and Personnel (DFP) but discussions are currently taking place between officials in DFP and the Department of Justice about the transfer of a range of civil powers.
Judges who sit in the Family Division of the High Court have jurisdiction to hear the most complex cases relating to children and they also hear appeals from family proceedings courts and cases transferred from the county courts or family proceedings courts.
The press is allowed to report on proceedings in our criminal courts, including rape cases where the victim automatically receives lifelong anonymity, but reporters cannot attend proceedings centred on families.
In England, family courts have been opened up to the press but serious restrictions on what can be reported often mean that few journalists attend.
A leading media lawyer interviewed by The Detail says that change is essential and warns that the current situation means that serious injustice could go unreported.
However, Justice Minister David Ford appears to have already ruled out Northern Ireland following in England’s footsteps and opening up the family courts to the media.
He told The Detail: “I have never been convinced by the argument that the media should have access to family court proceedings. It is difficult to see how this can be reconciled with putting the interests of the child first."
The British and Irish Legal Information Institute (BAILII) publishes court decisions online including judgments made by the Northern Ireland High Court of Justice Family Division. The decisions – which are anonymised – give a fascinating insight into the family court proceedings.
So far this year, five family division judgments have been published online.
The cases include a freeing order for a two-year-old girl, an abduction return order, care proceedings relating to sisters aged seven and one, a ruling on a mother’s attempt to relocate to Romania with her three-year-old child and non-molestation proceedings brought by a 14-year-old girl against her former boyfriend.
The cases dealt with by the High Court of Justice Family Division in 2010 include a ruling which allowed a mother to relocate to Australia with her two children.
Another case centred on a three-year-old boy, a Portuguese national, born here.
He was left in Northern Ireland aged two by his mother who returned to Portugal. His father was in prison in Portugal. The boy was left, purportedly on a temporary basis, with a friend of his mother’s but ended up in foster care. The court decided to begin a care plan to enable him to move to live with his aunt in Portugal. This is likely to include freeing him for adoption. At the time of the hearing, the toddler could only speak English.
In March last year, a forced marriage protection order was made in the case of two girls aged 12 and 14 living in Northern Ireland who were British of Pakistani descent. It is alleged that the girls’ two brothers had already been forced to marry during a trip to Pakistan in 2005.
In April 2010, the High Court Family Division rejected a mother’s claim that her son was conceived as a result of rape. This was used by her as a reason to refuse the father contact with their child.
Important statements are often made by judges during family court hearings but, due to the private nature of the proceedings, these are not routinely heard by the public.
Justice Weir dealt with a case in June 2010 where a health trust had applied to the court for a determination on whether non-accidential injuries to a child were deliberately inflicted.
“Significant bruising” was found by a doctor on the youngest of three siblings at a time when the two older children had just returned to their mother after time in foster care.
The mother originally said the boy fell from a climbing frame but then changed this account to say she lost her temper and pulled him down the steps of bunk beds. She said she did not put this explanation forward at first because she was terrified that this “momentary loss of control would result in my children being taken away from me forever”.
Justice Weir’s postscript to the case concludes: “I am often struck in these cases by the paucity of such help for parents in the community, especially for parents who lack familial support. By comparison, the level of help and respite provided for foster carers seems for some reason to be very much greater.
“What is badly needed is more practical day to day support from people with practical parenting skills, probably more mature people who may have raised their own families and thereby learned from their own successes and mistakes. An investment in recruiting support of this type would be both effective and cost-effective in maintaining families within the community and avoiding the costly involvement of the care system.
“An outcome of permanent removal of children from their families is, too often, as much an indictment of a failed system as it is of inadequate parents.”
In the same month, Justice Weir, the principal judge in the family division, also spoke out about false claims when dealing with a divorce case.
The mother of two young children made an allegation of serious sexual abuse against their father. The judge said she was a “highly unsatisfactory witness” and concluded that she was motivated by spite. He added that the children’s grandparents and father had been “maliciously deprived” of monthly contact with the children because of the allegations.
After being warned about the consequences of lying under oath, the mother later withdrew the allegations made against the children’s father and each of his parents.
Justice Weir ordered that copies of his judgment should be provided to Social Services and kept on their file.
Media law expert Walter Greenwood co-edited ‘McNae’s Essential Law for Journalists’ for 30 years and advises news organisations in Northern Ireland.
He said: “There is a strong argument for much more open justice in the family courts even if the families concerned have to be anonymised. It would increase public confidence in the courts.
“The great danger of the present system is that where serious injustice takes place it may go unreported if an individual judge will not allow reporters in or, if they are allowed in, suppresses details from being reported.
“Judges have even been known to forbid parents from speaking to anyone about their grievances about their children being taken away.
“On the mainland there have been disturbing cases causing real distress where a terrible mistake by a social worker or a doctor has meant that parents have been wrongly accused of harming their children, leading to the children being removed from the home.
“The agencies working with children do a splendid job but if occasionally they persist in misjudging the situation in spite of strong evidence to the contrary then this injustice must be exposed.”
Mr Greenwood said that experiences in England with new rules allowing some access by the press have been mixed.
“There is often so little that judges will allow to be reported even if journalists are allowed entry,” he explained.
“In these circumstances newspapers are reluctant to send reporters to family court unless they know sufficient information is going to be allowed to be published.
“The best solution would be to allow open access to the press with a legal prohibition on the publication of anything that would lead to the identification of the people concerned. This is wider than a mere ban on names and addresses.
“This form of ban seems to work well in the youth courts and also in adult criminal courts where a judge specifically prohibits identification of a juvenile.”
In relation to the freeing for adoption orders made in Northern Ireland, “at least” one final freeing order without consent was made in each of the 220 cases over the six year period up to 2010. This means that more than one child in each family may have been freed for adoption.
We asked the Northern Ireland Court Service to give reasons for the orders but were told: “This information could not be provided without a manual trawl and given confidentiality of proceedings it would not be appropriate to release.”
A court spokeswoman said that freeing applications are only made in public law cases were the child is in care and the long term care plan for the child is adoption. They may not all result in a final adoption order being made.
It is understood that families across the UK have taken legal action to challenge some of these orders. We asked how many families had taken legal action against the courts in Northern Ireland and what stage the proceedings are at.
The spokeswoman replied: “We don’t record this specific information. We would have no way of identifying these cases.”
Evidence of the extremely difficult decisions involved in freeing order cases can be seen in one of the online judgments.
In this case, Judge Morgan voiced support for the adoption of a five-year-old girl by her long term foster carers even though her birth mother, who wanted her to be returned to her and was successfully parenting two other children, had been assessed as having “excellent parenting skills”.
The judge said there was a real risk to the child’s welfare if she was moved from her foster placement.
John Hemming is a Liberal Democrat MP in Birmingham who chairs the Justice for Families Campaign Group. It campaigns for “a just system of public family law where the right decisions are taken through due process and with proper evidence”.
In April, Mr Hemming used parliamentary privilege to name a woman involved in a child custody case who was threatened with jail for speaking to politicians. And just last week, he caused a storm when he used Parliamentary Privilege to name Ryan Giggs as the footballer at the centre of the superjunction row.
In an interview with The Detail, he said: “A lot of the problems in England have been caused by the drive to have children in care adopted. Adoption targets were abolished in 2008 but the culture has not shifted. There are around 3,000 forced adoptions in England every year.
“It is very rare that decisions are reversed. No one wants to take the chance and would prefer to stick with the status quo. There should be more of an effort to keep children with their families.
“There is still a perception that adoption is the perfect solution but it is not. About a quarter of forced adoptions in England break down and the children return to care psychologically damaged.”
Mr Hemming claimed that the views of families are often ignored.
“The judges in family courts depend on the information put before them and that is largely controlled by the health trusts or the views of unreliable experts,” he said.
“Journalists are not going to sit in family courts if they cannot report on them and in the meantime life changing decisions which are often very damaging to children will continue to be made behind closed doors.
“Parents who are unhappy with decisions made can appeal to the Court of Appeal or even the European Court of Human Rights and we do advise families on this including families in Northern Ireland. But this can take years.”
However, children’s charity Barnardo’s Northern Ireland takes a different view.
Stephen Knox, the charity’s assistant director of Children Services, said: “The removal of a child from a parent is one of the most serious interventions a state can make in the lives of its citizens. Freeing orders are therefore not granted lightly.
“They are not a quick way of removing children from their parents they are a legal process which is open to scrutiny with right of appeal and published judgements giving clear indications of their determinations.
“Adoption is a real option and can give many children the stable and loving home they might not otherwise have.”
The charity cited the case of a 16-year-old girl from Northern Ireland who had had more than 40 foster placements by the time she was 12. Her behaviour became more difficult with each move.
Barnardo’s said that adoption at a much earlier stage could have had an enormous impact on Kelly’s life.
Our second article today centres on some freeing order case studies.
- Do you have a story to tell about our family courts? Email Kathryn at [email protected].