Welcome to another Monday, which appears to have shape shifted from sunny to gloomy all in the blink of an eye, as can often happen in the family courts too. This week’s question revolves around the notions of double jeopardy, standards of proof and the effectiveness of a dual system in family matters.
Although the family courts are unique in that they are often described as quasi-legal, due to the nature of the Orders made (often flexible and open to informal changes), they use the same standard of proof as their civil court counterparts.
The civil standard, or burden of proof, requires that decisions must be made on “a balance of probabilities” – is it “more likely than not”, that something took place.
However, many parents going through the family courts also find themselves going through our criminal courts too. This is because sometimes they are being tried for crimes which have to be assessed by a criminal court under our current law. These crimes include child abuse and neglect.
The standard for crimes inside our court, or the burden of proof, requires broadly that the allegation is proved “beyond a reasonable doubt”.
This standard is different to the civil standard. But some families find that they are subject to scrutiny of the same crime, in both courts. This is due to the fact that there is an overlap where children are concerned. Laws regulating the welfare of children straddle both the family and criminal courts.
Although Double Jeopardy has been ushered out of UK law since 2005 (allowing for retrials where fresh and compelling evidence has arisen), there is a legal and ethical question mark over trying parents twice for the same crime in separate courts.
Often, no new evidence has come to light; the courts are merely just using two sets of sometimes differing evidence (depending on what is allowed as evidence in each court – which again may vary considerably under each court’s rules about types of evidence).
The result is that a parent may be found guilty in one court, but innocent in another.
Our question this week then, is just this: is our dual system a help or a hindrance when trying to establish guilt or innocence in such cases?
Researching Reform 
A very simple answer to your question Natasha ! There should NOT be a dual system.It is a disgrace that parents can be branded child beaters or abusers on the balance of probabilities. Sometimes only 51%! Family Courts should be replaced by, or amalgamated with criminal courts so that the dilemmas you pose would no longer exist and neither would most of the flagrant injustices that plague so many unfortunate parents and children in the UK.
LikeLike
Thank you for your comment, FA. Perhaps the question also runs a little deeper. As you say, a balance of probabilities belies the reality that sometimes there just isn’t enough evidence, so judges have to use their gut instinct, or their imagination. Is this satisfactory in the 21st century?
LikeLike
The purpose of the family court is to protect children, not punish parents. Often, despite finding a parent has behaved reprehensibly towards a child, the court will still set out to return the child once the parent has been enabled to remedy whatever was the problem. By contrast, the criminal court exists to exact measured retribution for behaviour which offends against a common civilised standard.
Because the predominant purpose of the criminal law is merely retribution, a high standard of proof is appropriate. However, take a situation in which the authorities knew that children in a particular family were almost certainly being the subject of abuse or deprivation at the hands of a parent. To say that intervention could not be justified would be verging on inhuman. As the family system does not exist to punish, who could look one of those children in the eye when they turn 18 and say, “well we thought that was what was going on but as we weren’t sure, we did nothing.” Not me, for sure.
LikeLike
Thank you for your comment, Jonathan. The trouble is, whilst each court may be designed for different purposes, people are still being tried twice for the same crime. It won’t matter ultimately whether one court has a philosophical take on the issue and another a more proactive one – at the end of the day, it seems to me at least, that it causes great, and unnecessary confusion. Especially when, despite appearing to be mutually exclusive, each impacts on the other in a very tangible sense, often with contradictory effect.
LikeLike
I agree with Jonathan – I cannot see how this is a situation of double jeopardy. In the civil proceedings the motion which the trier of fact must address is, `Has this child been harmed or is likely to be harmed, and therefore does the child require some form of protection provided by the law’?. It is not necessary to identify who may have caused the harm. The culprit may have been a parent, grandparent, aunt, uncle or whoever and the perpetrator of the abuse may not even be present in the Court.
Such identification of the abuser may be necessary in custody/ contact proceedings but only because the child needs to be protected from an abusive parent and the child may therefore be at further risk of harm and exploitation. If the child has a protective parent, then there may be no need for protective action afforded by the law.
In the second instance in the criminal court, the motion which the trier of fact must address is, `Has this person harmed a child”?. A straightforward criminal charge similar to a charge of assault on another person.
It is already extremely difficult to satisfy triers of fact in civil proceedings regarding custody and contact issues, as the rights of the parent tend to be the primary and dominant consideration and evidence is usually presented by self-litigants or legal representatives who are inexperienced in child abuse investigatory methods and techniques and lack the knowledge of the various forms of child abuse and their impact on children. So such presentations are usually of a very poor quality and therefore fail to satisfy the balance of probabilities standard.
Conversely in Care Proceedings, evidence is usually presented by legal reprentatives of local authorities with very considerable resources to present their case (e.g. international experts) and very considerable experience in presenting such cases.
LikeLike
Hi R,
Thank you for your comment. With humility, I would like to address some of your points:
The family courts do need to identify who caused the harm. They cannot prove harm otherwise. There is quite a bit of case law on this, but I’m rushing now as I have to finish up some other work, but a quick Google should help out.
The criminal court, like the family court, has to ascertain a wide variety of facts, not just whether someone has been harmed and so the two courts share a lot in common. Both use similar remedies, too. There is crossover.
The central issue here I guess, is whether or not having a dual process like this is useful. Do you think it is?
LikeLike
Jonathan, It is all very well saying that the purpose of the family courts is NOT to punish.Try saying that to one of the hundreds of mothers whose baby has been removed at birth for the mere “risk of emotional abuse” and subsequently adopted by strangers ! A life sentence short only of capital punishment.To justify this by claiming “what the authorities know is almost certain” is in itself almost inhuman(as you describe) and takes justice out of the courts and into the hands of town hall bureaucrats.Before breaking up imperfect but largely united families; of course a high standard of proof should be required for the sake of the distressed children whisked away from their parents, isolated from family and friends(phones and laptops confiscated)and dumped with complete strangers.Cruelty personnified…..
LikeLike
There is no practical solution to this. There has to be a balance of probabilities test for the sake of the child’s well being. FA is focusing on the needs of the parent – the law in family proceedings focuses on the welfare of the child, and so it should.
The parents are not on trial in the family courts. The welfare of their children is the point of the enquiry. So it is a misconception to say that the parents are being tried twice for the same offence. The family court just isn’t doing that. It is enquiring to discover whether or not the children are likely to suffer significant harm in their present home environment. If so, it will work with the parents if at all possible to rectify the deficiencies so the children are safe. Punishment doesn’t enter the equation. Two different courts, two different purposes, two different outcomes.
LikeLike
Hi J, the parents are, in some sense, on trial in the family courts. Fact finding does require a trial like process, and so we have this funny limbo, despite any aspirational sentiments the family courts have about their purpose. And whilst I agree with you that punishment is not the central remit of the system in theory, parents do sometimes feel as if the process is penalising them, both at an informal and formal level. It is a court which has the ability to imprison parents, too; another interesting cross over from a court system often described as a bolt on, or add-on from the criminal sector/ courts.
LikeLike
Jonathan I also do not agree that the predominant purpose of the criminal courts is “retribution” ;far from it ! The main purposes are twofold :- firstly to deter others from following the same path as the criminal,and secondly when offences are really serious to stop the criminal repeating the offence by restricting his/her liberty ie in prison !Revenge it is true is something enjoyed by social workers on those who oppose or insult them and this makes it all the more urgent that family courts are replaced by criminal courts in all questions of public law.
LikeLike
If the purposes of criminal law were deterrence and prevention, guilt would be academic. If it were commonly believed that a person had committed a crime, punishing them would be a deterrent. Whether or not the person had actually committed the crime would be of lesser importance. Likewise, the actual commission of a crime would not be paramount in terms of prevention – if a person is likely to commit crimes, lock them up to prevent them. Determining actual guilt isn’t necessary.
That’s why retribution is the key element of criminal law. Only the guilty should be penalised. It isn’t good enough to identify people merely believed to be guilty or predisposed to be criminal. Sure there are secondary purposes – deterrence and prevention – but they are just that – secondary. The primary purpose is and must be measured and proportionate retribution. Revenge is not an acceptable feature in a civilised society so retribution is the key in order to prevent the vigilante exacting disproportionate revenge instead.
LikeLike
Jonathan, how can you tell the weeping mothers who phone me every single day,”Don’t worry you are not being punished your baby has been taken for adoption because on the whole we think it best “?,(and in the family courts what we think best goes !)If it were not so tragic it would be laughable………..
LikeLike
FA, do you stand at the gravesides with the relatives of children who died at their parents’ hands when the state failed to intervene and let them die? Emotive appeals cut both ways. You need to engage with the argument and recognise that not all parents are fit to raise children. It is the community’s responsibility to identify them and intervene. No one is going to suggest that that is at all straightforward though.
LikeLike
You are abolutely right to draw attention to cases such as that of Baby P (countless visis to hospital) where the State failed to intervene.There are far more children taken for emotional abuse (or risk of it ) than physical or sexual abuse combined ;It is a crime to injure a child and social workers should concentrate on criminal parents such as those responsible for baby P,Daniel Pelka,Maria Coldwell,and countless others who were ignored,probably because they were poor adoption material,or because it is easier to bully a single mum who has escaped from domestic violence and take her baby because of the possibility that her violent ex partner might pose a risk once out of prison, or because there was a risk that she might pick another violent partner in the future ! Much easier than confronting a drunken bully with 2 rotweilers in a smelly flat where baby p lived !Baby P ‘s mother was allowed to see her surviving children whilst still in jail but Vicky Haigh and other similar mothers who have never harmed anybody are denied all contact for having the temerity to defy judges and speak to or email their kids !CRIMINAL PARENTS ARE NOT FIT TO RAISE CHILDREN IF THEY INJURE THEM .Punishment without crime is an abomination so please Jonathan forget the emotion and recognise that parents who love their children and fight through the court process to try and keep them ARE punished when their children are taken away.Parents who kill their children run a mile from courts and very few would go there to try and recover children they do not care for.Punishing parents because “the authorities are almost certain it is right to do so” is ok in a totalitarian state but a long way from the democracy we are mean’t to enjoy.
LikeLike
Hi JJ,
You are obviously not aware of research that was done in USA. Please check out NCCPR website. The LARGEST ever study was done to decide if it was better to take a child into care or leave them at home. The evidence was overwhelming- leave them at home! Since this was a two part study over many years involving 15,000 children and a year later 23,000 children, it showed that the outcomes for children left at home were far better than if the kids were taken into care, even if there was little or no support! The research is on the site too. So if, and they say it is better, to keep a child at home why is this not happening?
Better training of social workers, with the objective to keep the family intact, would help to keep those intent on seriously hurting or killing their children to a minimum. I believe a senior social worker /director admitted that they could not prevent those serious abuses or/and killings. Social workers justify these cases with removing thousands of kids from their homes on the basis of risk, they simply take all the kids in case something happens.
Going back to our duel court system there should not be 2 bites of the cherry to gain a prosecution. You are guilty or not! In either court! Therein lies the real problem, the balance of probabilities which has to be the most stupid way of getting to the truth, because it doesn’t! It’s merlynsomeone’s interpretation of how events might be. Proof and real tangible evidence is dispensed with. Opinion, hearsay, speculation, conjecture is what is in family courts and its also down to how good your legal team is! Where is the truth, honesty, integrity? Where is the balance of the damage done to the child and for the rest of their lives when removed from their homes? The experts are not experts in the main but their evidence, a 2 hour chat session decides your families fate, even medical experts are not infailable. Let us not forget that the child protection system started out as one thing but has become dirty as people, the professionals, exploit the families, making money hand over fist! They all have an agenda in keeping things as they are! It beggers belief that this system has been in operation for so long!
LikeLike
Without the Criminal Court – even less chance of justice – Crown Court which is more honest and relies on a system more thorough. Allowed the proper examination of evidence and cross examination of those that accuse fully – when false allegations are not allowed to be adequately tested in the family Courts. I also was relieved that the Crown Court Judge under S2 went though the files of the Social workers and found evidence that was with held by the City Council Solicitors and Social workers from the earlier family Court findings hearings, new evidence that sadly was not allowed to be reviewed by the corrupt system that prevails in the family Closed court, and unfortunately protected by the Higher Courts on Appeals as the the decision made by the Family court Judge on balance of probabilities, does not allow a full review. In my case the die was cast prior by the decision made in the family court. If the Crown Court had been heard first – quite likely the decision on balance of probabilites would have been very different.in the first instance especially given that a Step father can get legal aid in Crown Court but not in the family court. the Family Court system is not a level playing field for families.
Equally – evidence gathering must be timely; If the period that elapses in the family court when the new evidence becomes available later – or to late to get family justice in the County Court system. To seek justice – when Local Authority has preverted the course of Justice – it impossible to get an adequate hearing or review. Even the Police later on appeals and enquiries confirmed the new evidence was compelling and most certainly was instrumental in clearing my name and preventing a term in Jail. Yet the Family Court can make an adoption order that is a double life sentence for both your child and your family – yet innocent of any crime or action,- from a father that properly sort help – when later clearly the LA errors caused a defensive and corrupt system to kick in when clearly the father found fault in the Social works team behaviours and actions at Portsmouth.
Clearly a drive to Kangoo court actions and decisions without full process of law and family Court corruption behind – closed doors – the system is wrongly balanced in favour of Officers – who themselves are protecting a system that fails too many and is a court well known for injustice and stripping families of children from adequate homes, spending money on court action rather than rehab or seeking adequate truth and common sense – covering up inadequate practice and a system self protecting and self serving. I recall my barrister saying – at placement hearing – Adoption plan – I will not go there – her career was more important in the family Court system than challenge a judge on the evidence found – she believing that by co operating that the Judge was more likely to favour me – as became clear the matter was – could the Local Authority work with me- was there any one with adequate intelligence to work with me – being a former Principal Officer at that same authoritty – but choose not to – on a father that was by the Judges statement an adequate good father but a risk in future – not to my son but based upon his balance of probabilities decision could later be a risk in 16 years time – if his earlier decision was right. – having jumped though hoops – been granted unsupervised contact in the community- an assessment tath I was no more a risk to my son than 99.9% of population – and rewarded those that perverted the course of Justice. Yet would any one care to help or solve the issues created by the unjust decisions made – answer NO.
Until the courts are opened up – and those Officers in SW are removed that b ring shame on the profession. Crown Courts should prevail and Family Courts should review adequately on all evidence balanced properly. 49-51% injustice on balance of probabilities should be repealed – after all a decision could be made by a Judge himself that if a 1% risk – adoption could follow; Its not a joke its family lives wreacked in favour of SW’s protecting there errs.
My barrister in the Crown Court when requested to act in the family Court – said you will never see me in that court as the dice is loaded against those accused.
Clearly – Justice requires review – yet the system is allowed to self protect and self serve by those that believe those in power in family court system – risk adverse to justice – can continue to blight so many – rather than see money diverted to adequate social care in our society. There is too much at stake for those in the lobby.
LikeLike
Thank you, Stephen.
LikeLike
80 PERCENT FAILURE
A Brief Analysis of the Casey Family Programs Northwest Foster Care Alumni Study
By Richard Wexler, NCCPR Executive Director
Imagine for a moment that you went to a doctor and he told you the following:
· 80 percent of my patients don’t get any better.
· A lot of the time, they get worse.
· One-third of the time, I commit malpractice.
But, the doctor continues, if you’ll just pay me even more money than I already get and build me a fancy new hospital, I’m sure I can reduce my failure rate to only about 60 percent. Do we have a deal?
Odds are you’d look for another doctor.
But what if all the other doctors told you the same thing? And what if none of them let on that there were, in fact, better treatments with fewer side effects?
Odds are you’d be furious.
Now, consider a study released on April 7, 2005 by a large, Washington State-based foster-care provider, Casey Family Programs, and Harvard Medical School. The study used case records and interviews to assess the status of young adult “alumni” of foster care.
When compared to adults of the same age and ethnic background who did not endure foster care:
· Only 20 percent of the alumni could be said to be “doing well.” Thus, foster care failed for 80 percent.
· They have double the rate of mental illness.
· Their rate of Post Traumatic Stress Disorder was double the rate for Iraq War veterans.
· The former foster children were three times more likely to be living in poverty – and fifteen times less likely to have finished college.
· And nearly one-third of the alumni reported that they had been abused by a foster parent or another adult in a foster home.
The authors went on to design a complex mathematical formula to attempt to figure out how much they could improve these outcomes if every single problem besetting the foster care system were magically fixed. Their answer: 22.2 percent.
Even if one argues that foster care didn’t cause all of these problems, clearly foster care didn’t cure them. Yet the authors of the study recommend only more of the same: Pour even more money into foster care to “fix” it to the point that maybe the rotten outcomes could be reduced by 22.2 percent.
At a two-and-a-half-hour briefing for advocates, there was barely a word about keeping children out of foster care in the first place.
Why, then, do we continue to pour billions of dollars into a system which fails 80 percent of the time and actually abuses at least one-third of those forced into it?
We do it because, over 150 years, we’ve built up a huge, powerful network of foster-care “providers” – “a foster care-industrial complex” with an enormous vested interest in perpetuating the status quo. They feed us horror stories about foster children whose birth parents really were brutally abusive or hopelessly addicted. But such cases represent a tiny fraction of the foster-care population.
As is documented in NCCPR’s Issue Papers, far more common are cases in which a family’s poverty is confused with child “neglect.” Several studies have found, for example, that one-third of foster children could be back home right now if their parents simply had adequate housing. (See NCCPR Issue Paper 5).
Other cases fall on a broad continuum between the extremes, the parents neither all victim nor all villain. What these cases have in common is the fact that the children would be far better off if states and localities used safe, proven alternatives to foster care – alternatives that don’t come with an 80 percent failure rate, and a 33 percent risk of child abuse. (See Twelve Ways to do Child Welfare Right).
Nearly as disturbing as the study’s findings is how the study authors attempted to spin them.
The finding about the rate of abuse in foster care is not mentioned in the press release accompanying the study. It’s not in the Executive Summary. It’s not in any of the glossy material that accompanies the report. One must dig it out of the report itself, on page 30. (The full report is available here)
During the entire briefing for advocates, I waited in vain for the study authors to even mention the issue of abuse in foster care. When I finally asked about it, at the very end of the briefing, one of the researchers tried to blame birth parents, speculating, without a shred of evidence, that maybe the foster children had been abused during visits.
But that is contradicted by the study itself, which states:
“One third (32.8%) of the sample, however, reported some form of maltreatment by a foster parent or other adult in the foster home during their foster care experience, as recorded in their case files” [emphasis added].
If anything, this underestimates the true rate of abuse, since a major problem in foster care is foster children abusing each other (see NCCPR Issue Paper 1), and those cases apparently were not counted in the study.
Of course, some will rush to conclude that because family foster care has failed so badly, we should go back to orphanages. There’s just one problem with that. Over a century of research is nearly unanimous: The outcomes for children warehoused in orphanages are even worse. (See NCCPR Issue Paper 15).
Though the authors try desperately to ignore the obvious, their study is one more indication that the only way to fix foster care is to have less of it. Until we realize that, foster care systems will continue to churn out walking wounded – four times out of five. times.
——————————————————————————————————
Questions:
If the parents are deemed to be a risk on the balance of probabilities, why is it the grandparents don’t get the kids? The case is not brought against them, even if they are dragged into the mire and there are no allegations against them but they still don’t get them. They have not harmed the kids?
Why is family preservation not the goal in the UKs reforms?
LikeLike