When the flaws of the legal system are exposed, it searches for someone to blame
The Observer, December 4, 2005
I know you should not judge by appearances, but ‘Mrs B’ doesn’t look like a child killer. To use old-fashioned language, she is motherly – a plump, rosy-cheeked woman of Kent, whom nature seemed to have created to raise children.
Kent social services soon put a stop to that. In 1999, Mrs B gave birth to a daughter. The child suffered fits that would have baffled previous generations of doctors, but which modern doctors could label with an impressively scientific name. Two concluded that Mrs B was poisoning the girl because she was an attention-seeker suffering from Munchausen’s syndrome by proxy. First, they claimed she had fed her tranquillisers. There was no trace of tranquilliser in the child’s blood, hair or urine. Then they claimed she had injected her with water from a flower bowl or lavatory. One of Britain’s foremost toxicologists said the idea that either could have caused fits was nonsense. The family paediatrician said he found the allegations absurd. The evidence was so feeble the police didn’t investigate.
No matter. In 2003, the Family Division of the High Court, sitting in closed session, upheld the decision to take the girl from her mother and send her to live with relatives 200 miles away. Curiously, since the authorities had declared that Mrs B was an insane and depraved woman, the courts allowed her to keep her other two daughters. I don’t know how to explain this – maybe it’s a miracle – but they survive in rude health.
The Family Division might have been designed to allow miscarriages of justice. Judges need only find the case against parents proven ‘on the balance of probabilities’ rather than ‘beyond reasonable doubt’. Reasonable questioning of their decisions by outsiders is next to impossible because it is a contempt of court to reveal what has gone on.
The formal reason for secrecy is that it prevents the media identifying children – and, undoubtedly, there are circumstances in which they need protecting. When there is an injustice, however, it is in the interests of parents and child for the mother to be able to exercise a free woman’s right to make a fuss by going to the papers, local TV station, her councillors and MP.
In normal circumstances, the law would have stymied Mrs B, but she had two strokes of luck. The first was that her solicitor was Sarah Harman.
This case has come close to ruining Harman. The best part of the past 18 months has been the admiring tributes. At the Solicitors’ Disciplinary Tribunal last week, clients, judges and fellow solicitors spoke of a lawyer of the highest integrity who ‘looks to right injustice wherever she finds it’. People who know her rely on her. After Michael Stone murdered Josie Russell’s mother and sister, her father Shaun asked Harman to be Josie’s trustee and protect her interests. If you need to smash your way through a brick wall, she is a good lawyer to have holding your coat.
Mrs B was also fortunate that by 2003 politicians were belatedly realising that like many another secret world the Family Division was liable to be swept by pseudo-scientific manias. The spark for their concern was the quashing by the Court of Appeal of the convictions of Sally Clark, Angela Cannings and others allegedly driven mad by Munchausen’s. The evidence of Professor Sir Roy Meadow which had sent them down for child killing was revealed to be tosh.
It was not just his cockeyed testimony. The Court of Appeal wisely noticed that doctors were trying to identify illnesses that ‘may be unexplained today [but] perfectly well understood tomorrow’. When medieval cartographers did not know what lay beyond the mountains they filled the blank spaces on their maps with ‘There be dragons’. Much the same had happened in English law. When no one could explain injuries or illnesses, Meadow and his associates filled the blank spaces with pictures of monstrous women.
Margaret Hodge, the Children’s Minister, announced a review that was potentially more explosive than the Court of Appeal’s verdicts. Whatever else Angela Cannings and Sally Clark had suffered, their friends and families could at least protest loudly and in public. Hodge was to look at 5,000 Family Division cases with disputed medical evidence where the courts had taken away children in secret.
Well, thought Sarah Harman, if there’s at last going to be a review I want my client’s voice heard. She sent details of Mrs B’s case to the local MP and to her sister Harriet Harman, the solicitor-general, who passed them to Hodge. Nothing they saw identified Mrs B’s daughter. Mrs B also spoke to the Daily Mail and the BBC. Nothing was printed or broadcast which identified the girl.
Closed systems hate daylight. Kent County Council went ape and claimed that Sarah Harman was in contempt of court for talking to politicians and the press. It was far from clear that she was. No other common law democracy imposes such restrictions on child care cases. Even in Scotland, what Sarah Harman had done would not have raised an eyebrow. Kent County Council itself discussed Mrs B with Roy Meadow, even though he was not a witness in the case. If Sarah Harman were guilty of contempt of court, so were its officers, presumably.
Mr Justice Munby heard the argument. On one point all sides agreed: Sarah Harman was slow to disclose what she had done to the court. She had a good excuse. Her doctors had just told her she was suffering from cancer, and she had to endure two bouts of emergency surgery while she was fighting to defend her reputation. You might have forgiven her for being a touch confused. Munby didn’t forgive and threw the book at her. She was in contempt of court and had misled the court, he declared. No one had the right to discuss a Family Division case with anyone – not with the Children’s Minister or the solicitor-general or their MP.
People talk about judicial activism, but this was judicial totalitarianism. Britain is a parliamentary democracy, but Munby was saying that citizens who brought their grievances to their elected representatives were in contempt of court. Harman had to pay £20,000 in legal costs. The punishments didn’t stop there. Last week the Solicitors Disciplinary Tribunal heard Kent County Council’s complaint against Sarah Harman and banned her from practising law for three months.
It is an ugly but typical picture of the legal establishment thumping critics when its faults are exposed. The backlash won’t work and isn’t working. Parliament reacted to Munby’s treatment of Sarah Harman by changing the rules and giving citizens the right to discuss injustices. More reform is coming, albeit slowly and timorously. Even Mr Justice Munby told Parliament that he did not think ‘the existing rules are necessary’.
The old regime will die, but it is getting its pound of flesh before it goes. Sarah Harman has had her good name blackened and spent so many thousands of pounds defending herself that she has given up counting. I’m not saying all the 5,000 parents who had their children snatched were innocent. But the pathetic and frankly incredible review of their treatment found that in only one case – that’s right, just one – did the Family Division get it wrong. Despite the scandal, despite the General Medical Council striking Meadow’s name from the medical register, ‘Mrs B’ and 4,998 others are still being punished as child abusers.
BBC1’s adaptation of Bleak House continues at 4.10 this afternoon.