The most secretive court in all of Christendom – Transparency Project Reporting Watch

1 09 2017

Recent coverage of the placement of a 5 year old Christian girl with a muslim foster family that spoke no English has generated much outrage and media attention this week. But as more information emerges it is becoming clear that things are more complex and less clear cut than the headlines and the coverage has suggested. No surprise there then.

It was obvious from the outset that this was likely to be so, not least because (as Sarah Phillimore observed in our earlier post on this story here) it is difficult to square the initial assertion that the foster carers spoke “no English” with the suggestion that they also successfully indoctrinated her into thinking Christmas and Easter were “stupid” and that european women were all “useless alcoholics”. But others have commented on the blatant anti-muslim tone already – here I want to look at what we know now about this case.

Such has been the media frenzy about this apparently extraordinary and outrageous case that the judge has published her order, apparently complete with only identifying information removed. It is does not tell us everything and indeed raises a number of interesting questions itself, but it is nonetheless very illuminating, and it does not reflect well on the reporting so far, which it is now pretty clear was tendentious and one sided from the off and has now moved on to outrage about the secret family courts.

Although other papers have now covered this story (for example The Sun is today running a piece by Trevor Phillips: The decision to put a five-year-old Christian girl into Muslim foster care is like child abuse and the council must pay), this is a story which has been led by The Times, and we have found a raft of pieces, mainly by Chief Investigative reporter Andrew Norfolk :

Aug 28

Christian child forced into Muslim foster care – Concern for girl who ‘had cross removed and was encouraged to learn Arabic

Aug 29

Leader : Fostering Failures – Tower Hamlets was wrong to place a Christian girl in the care of a Muslim family who did not speak English at home and could not meet her needs

Tower Hamlets council under fire for fostering Christian girl with Muslims

Parents begged Tower Hamlets council to let child in Muslim care stay with grandmother

Aug 30

Judge rules child must leave Muslim foster home – The Times praised for exposing council’s failure

Aug 31

Child in Muslim foster home row may be taken out of Britain

Courts told never to ban media after Tower Hamlets foster case

There may be others. Suffice to say The Times is making the most of this story.

In this blog post we are referring to The Times rather than the journalist. There is an interesting debate to be had (not here) about the extent to which an individual journalist has theoretical or actual editorial control over his work or indeed any input into headlines, subheadings etc. We can see that in subsequent interviews Andrew Norfolk urges readers to consider the depth of the articles themselves rather than just the headlines, which he did not write, but beyond than observing that it appears the issues with this raft of coverage seem to extend somewhat further than the headlines, we are focusing on the output of this particular publication overall rather than seeking to vilify an individual journalist. And looking at the bigger picture there is an issue with the absence of coverage of other equally troubling and similar cases about inappropriate foster placements as much as there is an issue with the coverage of this individual case, chosen apparently because of the topical muslim hook.

On the secrecy accusation The Times say here that :

When The Times told Tower Hamlets last week of its intention to reveal the council’s decision to place a white British child with a family whose culture, faith and primary language were alien, the local authority tried to block the story. It contacted the East London family court, where the girl’s case was the subject of care proceedings, and told Judge Sapnara that confidential court documents had been unlawfully leaked and publication of an article would be an offence.

They also set out the difficulty that they had attending the hearing :

Security staff at the court, where a case hearing took place yesterday morning, ordered a Times journalist to leave the building and threatened an escorted removal by security guards unless the reporter left voluntarily. When Judge Sapnara was informed of the newspaper’s wish to attend the hearing, the reporter was readmitted.

And today The Times set out the response of the MoJ, which has been appropriately swift and firm – journalists are not to be barred from court.

In response to this, ex MP John Hemming has rolled out (in The Times and elsewhere) to say that :

“Sir James Munby, the most senior family court judge in the country, has launched a drive for transparency but this case shows that it isn’t working…journalists have been told that they can’t enter a public building, let alone listen to a hearing…The East London Family Court must be the most secret court in the country.” (see Care Appointments : COURT CASE OVER GIRL’S FOSTERING PLACEMENT ‘NEEDS EXAMINING FOR TRANSPARENCY)

He has a valid point – this should not have happened – but this would be a problem that would not arise if the attendance of the press at hearings were not as rare as hens teeth. East London Family Court houses only family hearings – it is on one level unsurprising that they got it wrong on the auspicious day when The Times deigned to pay a visit. What’s not working about the drive for transparency is that the media aren’t interested in reporting most cases (see here for an illustration). They are only interested in the few cases they can spin to get a headline to make you gasp.

The reality is that this is an instance of human error through lack of familiarity and lack of training, rather than secretiveness – all the parties and the judge were happy for the press to attend, and the judge has quite properly released her order to better illuminate the woeful debate thus far. Not exactly secretive. Just a botch.

As for the issue of release of confidential documents to the media, we are told via the order that hasn’t actually happened (or at any rate that the mother says it hasn’t), and so it may be that Tower Hamlets jumped the gun in reporting the matter to court. It remain unclear however quite how the information reported by The Times came to their attention.

But thank goodness for that order. It repays a close read, but requires a bit of deciphering for the uninitiated. So here’s what it tells us. You can read it here.

What does the order tell us?

Although some of the press reports refer to it as a “ruling”, a term they usually reserve for a judgment – this is a case management order. That is, it is the order recording what happened and what orders were made at an interim case management hearing, not at a final hearing or trial with live evidence. The things that are contained in this order are a running log of steps taken in the case, the parties positions, and by and large will have been agreed – and indeed many of the parts of the order record that agreement.

The order is marked as “Case management order number 7” – that tells us that there have been 7 hearings to date and  given that the standard case is supposed to comprise 3 or perhaps 4 hearings in total, including a final hearing we can surmise that this is probably a case that has required some proactive judicial case management – something has been a bit complicated.

First of all, what was always obviously missing from the press coverage so far but which is now apparent from the published information, is that there are issues around the mother’s possible drug and alcohol use, and that there was some sort of crisis in March leading to the child being placed in foster care in an emergency by the police (The mother is subject to some sort of criminal charge, but it is unclear whether those charges are connected to the removal of the child). Before questions of cultural suitability must come questions of safety. The question of what, if any, danger this mother may pose is a live one which the court will be tasked with answering in due course, but the order records that the interim threshold was met, meaning that there was sufficient evidence to have justified temporary removal to a safe place whilst a longer term plan was made. There is also very clearly a complicated but still obscure background of one, possibly two previous sets of court proceedings about this and another sibling, involving wardship and foreign documentation. There is reference to a putative, presumptive – and of a biological father who cannot be found, so paternity also remains obscure (incidentally this must mean the sub-headline suggesting the parents plural had begged for the child to be moved is unlikely to be accurate). A lawyer could speculate about what all this may add up to, but we really don’t know more than to say it sounds complicated and it sounds as if it crosses international borders.

The reference to 12(3) Brussels II Revised tells us that the child has a substantial connection with the UK, either because one of her parents is habitually resident in the UK or because she is a British citizen. The Times has a friend of the family confirming she holds a British passport. But crucially the order does not say the court has jurisdiction because the child is habitually resident here. It seems likely therefore that this child has previously lived abroad, probably until relatively recently before her removal. The fact of the previous wardship application may be connected to her move to the UK and suggests that it was in some way contentious or legally complex (it’s often used for example in cases where abduction is alleged, but we don’t know if that is the case here).

It is now clear then that this is a child from a family with international links, and at least a mixed religious background (the maternal grandmother is presently here but lives abroad, speaks an unspecified foreign language and is apparently a non-practising muslim although this seems strangely contentious as the child’s mother says not).

Also clear from the order is the fact that this hearing this week was not convened for the benefit of the press or in response to press coverage. It was listed as an “IRH / EFH”or Issues Resolution Hearing / Early Final Hearing, which will most likely have been fixed some time ago. The production of assessments will have been timetabled to be completed shortly before this hearing so that decisions could hopefully be made. Indeed we are told that in mid August the Local Authority completed its assessment of the maternal grandmother as possible special guardian and it was positive. The last time the case was at court prior to this week was on 27 June, but at that stage the child could not be placed with the grandmother because the assessment of her was outstanding. And the order tells us that at no time either before or after the respite placement did the mother apply for a change of foster carer (although to be fair to her the only real way she could have “applied for a change of carer” would be to apply to discharge the interim care order on the basis that she or some other person could safely provide care in the interim.

BBC Asian Network have run an interview with the journalist responsible for much of The Times material, Andrew Norfolk, in which he says the girl’s family had been asking for months for placement with Grandmother but there had been a lengthy delay in assessing which the judge was critical of. He also confirms that the criticism is all of the first foster placement, and that the girl has been in respite foster care for 2 months due to the first foster carer being on holiday – it seems likely that the mother’s application for a move to the grandmothers’ home in late June coincided with this and was intended to allow the child to move straight from foster carer 1 to grandmother rather than into respite.

As of mid-August the Local Authority were proposing a move to her care immediately following this hearing as it was known she would otherwise have to undergo another move (from her respite foster carer to her original contentious carer on return from holiday). This trajectory was set before the news explosion. The Judge’s order confirms in terms that the decision has nothing to do with the press coverage and that rather than it being forced on the Local Authority through public shaming it was a move they recommended.

The dispute that remains is whether the child should ultimately return to the care of her mother as the mother wishes, or whether she should be placed permanently with her grandmother.

The order tells us the grandmother is here temporarily and wishes ultimately to care for the child abroad long term. The order tells us that at the end of June the mother first made an application for the child to be placed temporarily with her own mother, which suggests that this was not being actively pressed for as a temporary placement between March and late June. It would be common for a Local Authority to be given up to 12 weeks to complete a full assessment for long term purposes, but it would usually be expected that they would complete an interim assessment to allow temporary placement in a shorter period of time.

Beyond that, it is not clear from the published information why it took from the point of initial removal in March until this week for that assessment to be completed, and it is on any view far too long for even a full assessment, let alone an assessment for the purposes of a temporary placement – but we don’t know when the Local Authority was first asked to complete this assessment, and the delay could have been for a number or combination of reasons, including for example a delay in the grandmother being proposed or being willing to be assessed, or a failure of the Local Authority to proactively seek her out if not put forward by the mother herself. Such scenarios are sadly very common. A scenario that seems likely on a full reading of the order though is that the grandmother was not in the jurisdiction until relatively recently and was therefore not an option as an alternative to foster care in the short term. Indeed whilst she is here in the country on a temporary basis it appears from the order that she has recently had a change of heart about staying and wants to go back home. Again, this remains unclear, including the precise basis of the judge’s reported criticism, but is probably multifactorial.

Coverage so far suggests that the delay is inevitably as a result of a local authority that is failing and that does not care. On current information any such criticism is potentially unfair.

The Times reported on 30 August that the court had directed an “investigation”, but the order merely directs a statement from Tower Hamlets on the topic of allegations raised, and given that fostering has come to an end it seems unlikely that the court will need to have any detailed inquiry into what may have gone wrong in the earlier stages of the case as it is unlikely to be necessary in order to make a proper welfare based decision about the future.

So, in an ironic twist that I doubt The Times will spin in quite this way, the child has now been placed with that grandmother – a placement which on a very simplistic level shares many of the characteristics of the foster home that has been so much complained of, although of course we don’t know where granny stands on the critical question of carbonara.

And importantly, the order makes clear that the allegations made against the foster carers, reported as fact by The Times are disputed. They may prove to be true or not. From the order, the court clearly considers that these allegations require further evidence to be filed and proper consideration before any conclusions are reached. The Times appears to have chosen not to report the fact that the allegations were contentious. The result is potentially misleading coverage – Trevor Phillips’ piece in The Sun today regurgitates the allegations as fact and builds outrage upon them. What if they are unjustified allegations?

It is becoming ever clearer that this is far from an exceptional or shocking case, or at any rate is not exceptional or shocking for the reasons suggested by the headlines – children are placed every day with foster carers who are not an exact cultural or religious match. More often than not this is the experience of children from non-white and non-christian backgrounds, particularly where they live in rural or relatively ethnically homogenous areas of the country. If journalists cared to attend for all or even some of the hearings for the many black, foreign or muslim children placed with white Christian families that can’t support the child’s language, cultural or religious needs the security staff would be up to speed on the rules around press attendance as quick as you can say dog whistle. But as the press only bother to turn up when they spot a case with an angle that will make a good headline, this is in truth probably not an area of priority staff training in an overstretched court service, and is not an insurmountable obstacle for the press. And no error by security justifies reporting on a case based upon the account of a single family member without fully appreciating or setting out the proper context, as has happened here. If The Times had waited for this hearing to take place before running their story I imagine the headline would have been rather different.

Of course the concern that The Times were raising was that a child should ever have been placed with a culturally inappropriate foster placement in the first place, or that it should have gone on for so long if a family alternative was available, so it is not met entirely by the later move of the child to the grandmother. It is still 5 months of life living with strangers. Nonetheless, it is puzzling why The Times ran a story shortly before a hearing at which all the parties agreed to the very course of action that was called for, when this was already the proposed plan of action. The Times make clear they knew the hearing was coming up. Either The Times were unaware of this or they chose not to report it (even in their account of the hearing itself). It is only now known because of the publication of the order.

If they knew this was the plan it is hard not to wonder whether the need to avoid their big leader becoming a bit of a damp squib impacted on the balance and accuracy of their reporting. Even more cynically, one could wonder whether they chose to run the leader the day before the hearing, knowing that they would likely be able to run self-congratulatory pieces in the days following when the child was moved. Conversely, if they were unaware this demonstrates the dangers of reporting, particularly in such provocative terms, when one has only one side of the story. Whoever their source was they either did not know or chose not to tell The Times that whatever the problems with the placement to date, they were about to be resolved.

In the email Times Top Stories yesterday the Times say “A five-year-old girl at the centre of a care dispute has been removed from her Muslim foster parents and reunited with her family after concerns raised in The Times.” They suggest they were praised by the judge for raising these issues, but stop short of directly asserting a causal link between their apparently “prior” story and the almost immediate change of placement (the use of the device “after” as a sleight of hand intended to be read as “because” is well established), but do not mention that the move had been lined up for weeks already.

The judge though is direct : She specifically and categorically says that her decision is nothing to do with the media coverage and is based on the evidence before the court and the proper application of the law. The media may have an important watchdog function, but even in their newly self-styled role as watchdogs of secret anti-christian family courts The Times cannot claim credit here for restoring this child to the bosom of her Christian (possibly muslim) family.

This post originally appeared on the Transparency Project Blog and is reproduced with permission and thanks.



One response

1 09 2017

Reblogged this on tummum's Blog.

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