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Lord Rees-Mogg's article in the Mail on Sunday

I have been unable to find this article in the MoS so I am reposting it.

THERE are extreme occasions on which public law and private conscience collide. Some of them, as in the cases of Socrates or Charles I, end in martyrdom. Some lead to imprisonment, though it is a terrible thing to imprison a man for doing what he believes is his duty.

Almost invariably, this collision of law and private duty tends to discredit the law and the judges concerned.

No one now defends the judges of Socrates, though there are still some admirers of the English dictator Oliver Cromwell. All human sympathy flows towards the man of conscience who is inevitably seen as the victim. Law itself becomes suspect, because it leads to consequences that seem to be horribly unjust.

Such a case was reported last week. A 56-year-old businessman of good character appealed against his prison sentence of 16 months for helping his wife flee British social services because she feared she would not be allowed to keep her unborn baby. The appeal was rejected by Mr Justice Bennett in the High Court.

The businessman's wife had been separated from her previous husband in 2004 after a 'volatile and violent' marriage.

At that time, her son from that marriage was taken into temporary care by the local authority, until she had 'sorted her life out'. After her remarriage she asked for the return of her son, but was refused by social services. A Family Court judge upheld this refusal. At some point, she was led to believe social services would take away the unborn infant.

There can be no reports of such cases in the Family Courts. We know as much as we do only because the eventual appeal against sentence took the form of a criminal appeal that could be reported in the normal way.

There are numerous questions to be asked. They would affect public confidence in the decisions of social services and of the Family Courts. Is it true that the original agreement was for a voluntary period in care? Did social services change this to an enforced adoption? If so, why? Did the son, now aged eight, agree with the proposed enforced adoption? As he subsequently ran away with his mother, one can assume that he was reluctant to be adopted.

None of these questions can be settled because the Family Court proceedings are kept secret 'in order to protect the child'. It is questionable whether secrecy protects the child threatened with separation from his or her parents.

The mother made contact with her son at school; he absconded from his foster home and met his mother and stepfather and they went to France. The husband then returned home alone and was arrested and charged with the abduction of the boy. The mother has since given birth to a premature baby.

The High Court has now rejected his appeal against sentence. Mr Justice Bennett acknowledged the 'powerful emotions' involved, but seemed to regard them as a reason for severity rather than a mitigation. He observed that 'those who act must expect a prison sentence because a real punishment is called for and to deter others who might be subject to the same pressures'. The 'pressures', it may be noted, are the feelings any father might have at the enforced adoption of his stepson, and the possible seizure of his own child at birth.

Mr Justice Bennett summed up the issue in these terms: 'Such proceedings, taken by a local authority, must be respected by parents.'

How would any of us react if a local authority attempted to take away our children in order to hand them over for permanent 'enforced adoption'? Such a policy may be justified in some cases, but it is an outrage against any family.

Most people have had their own collisions with local authorities on matters such as housing, planning or rubbish collection. Some agents of some local authorities are well-qualified, helpful people. Others, such as obstructive junior staff, are not.

Some barristers do not have great confidence in the Family Courts because of the secrecy in which they operate. One hears of relaxed procedures, which afford little protection to the parents — or, indeed, to children. One hears of a loose approach to the evidence, an undue reliance on hearsay, and an absence of any firm assumption of innocence.

Secrecy breeds miscarriages of justice. Public scrutiny is the real test of the quality of justice. Almost all major miscarriages of justice in recent years have come to light only because the courts were open to the public.

One cannot discover whether the Family Courts' standards are appropriate, because they are secret. Families are threatened with imprisonment if they go public in the fight against the removal of their children. That is a gross injustice.

There are also questions of class and status. It sometimes happens that there are enforced adoptions in middle-class cases. But they are much rarer. Many low-income parents do not carry the social authority or self-assurance to defend their children against possibly unjust social services rulings.

On average, children who have been in care are more likely to be school truants, more likely to leave school early, less likely to attend higher education, more likely to become addicted to drugs or alcohol, more likely to be abused, more likely to die young, more likely to become homeless and far more likely to be in prison. There should never be a bias in favour of compulsory care.

The real issue is secrecy. Justice cannot be done behind closed doors. For most of us, the businessman who risked prison to protect his wife and children is the hero.

That view may be mistaken, but secrecy means the social services, and Mr Justice Bennett, cannot justify their apparently arbitrary decision.

Lord William Rees-Mogg is a former editor of the Times.


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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

Editor’s comments in bold.

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