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How doctors' anonymity in family courts is under threat

BMJ 2006; 333 doi: http://dx.doi.org/10.1136/bmj.39027.665220.59 (Published 09 November 2006) Cite this as: BMJ 2006;333:1024
  1. Jonathan Gornall (Jgornall{at}mac.com)

Parents, their advocates, and journalists are campaigning to end secrecy—and it could mean paediaticians' identities are no longer protected

It's not every day that you see a solicitor done up to the nines, wearing snakeskin-print shoes and strutting her stuff for a fashion magazine outside the Royal Courts of Justice. But then it's not every day that a solicitor finds herself elevated to the status of media hero after being suspended for misleading a High Court judge and unlawfully distributing confidential family court papers.

The appearance in the pages of Harper's Bazaar in March this year of Sarah Harman, celebrated by the magazine as a “freedom fighter” for her campaign to “end the invidious secrecy of our family courts,” was a measure of the extent to which the media has driven the campaign to influence government policy in this vital area of child protection.

The coverage of the case that catapulted Harman to fame also offered an insight into the world of collusion between parents, their advocates, and agenda-driven journalism that has fuelled so many of what Professor Alan Craft, then president of the Royal College of Paediatrics and Child Health, described—in a letter to all members and fellows of the college on 11 February 2004—as the “unprecedented number of media attacks on paediatricians.” The impact on child protection, he said, had been enormous. In five years, one in 10 paediatricians had been the subject of a complaint relating to child protection work. Many were now “reluctant to act as expert witnesses in these complex cases,” Professor Craft said in a letter to the Times on 2 February 2004.

Now, as the campaigners for more transparency in the family courts seem certain to get their way, the threat of campaigns against individual experts looms over those whose evidence has, until now, been given in anonymity. As the consultation document Confidence and Confidentiality: Improving Transparency and Privacy in Family Courts, issued by the Department for Constitutional Affairs in July this year, makes clear, while the identities of families and children will continue to be protected, those of experts probably will not (www.dca.gov.uk/consult/courttransparencey1106/cp1106.htm).

In 2004 Harman's client, Mrs B, had sought permission from the courts to reveal to the press the name of one of the doctors in her case, as part of her campaign to persuade public opinion and the appeal court that she had been the victim of a miscarriage of justice in care proceedings on the basis of a misdiagnosis of Munchausen's syndrome by proxy (now known as fabricated and/or induced illness, or FII). Permission to name “Dr Y” was not granted, but the case seems to have acted as a lever on government thinking.

The origin of the impetus to reform the family courts can be traced to 19 January 2004, the day the Court of Appeal handed down its judgment quashing the convictions of Angela Cannings for the murder of two of her children. The judgment included 30 words that sent a shockwave through the medicolegal community: “If the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”

Criminal and family court lawyers alike worked feverishly to hitch their clients' cases to the Cannings bandwagon—and Harman worked more feverishly than most. Her client, Mrs B, had in September 2003 become subject to a family court order placing the youngest of her three children in the care of the paternal grandparents. The Cannings judgment, as Harman admitted in her Harper's Bazaar interview in March, had “breathed new life into a case that we had previously thought was unappealable.” The case of “Mrs B” was poised to become a cause célèbre.

Mrs B lost no time in turning to the press to plead her case, before making a more conventional court appeal against the court order. On 21 January 2004, within two days of the Cannings judgment, the Daily Mail was telling the sad story of “Sheila,” whose youngest child had, she alleged, been taken from her solely on the unproved suspicion that she had caused a series of fits by poisoning her.

It was another week before Harman made an application to the Family Division of the High Court on behalf of Mrs B, for leave “to disclose . . . specified documents in the proceedings into the public domain.” The mother, wrote Harman in a witness statement tendered in support of her client's application, “feels an affinity with other families who argue that their children have been separated from them through reliance by the Court on Munchausen by Proxy experts.” She also wanted to name Dr Y and pass on the details to “investigative journalists working on Munchausen by Proxy cases.”

But, as Mr Justice Munby discovered when he came to hear the case almost a month later, the application for permission for disclosure was “in fact all a charade” (The Honourable Mr Justice Munby, High Court of Justice Family Division. In the Matter of B (A Child) And in the Matter of the Children Act 1989, case No. CT01C00052, March 19, 2004). Not only had the mother already given details of her case to the Daily Mail, but on the day that story was published the solicitor herself had sent copies of case documents to the then solicitor-general, who just happened to be Sarah Harman's younger sister, Harriet.

Munby discovered that over the next few days Sarah Harman had sent out yet more documents related to the case—to Margaret Hodge, the children's minister, and to journalists working for the BBC, GMTV, and the Guardian. To one she sent this covering note, described by Justice Munby as “illuminating”: “I believe my client . . . who was featured in the Mail on January 21, has a case which merits review . . . the Court of Appeal is not the best or only place to do this.”

Munby noted that by 5 February 2004 “the mother had been committing contempts of court for some months, as had her solicitor, albeit for a rather shorter period . . . Both the mother and Ms Sarah Harman have displayed a remarkable and disquieting lack of candour with the court.”

In November 2005 Harman was found guilty by the Solicitors Disciplinary Tribunal of conduct unbefitting a solicitor, in improperly disclosing documents and misleading the High Court. She was suspended from practice for the first three months of this year and in the meantime set up an organisation called Facto—Family Action for Court Transparency and Openness. Facto is described on its website (www.facto.org.uk/) as “a pressure group of families, lawyers, academics, MPs and journalists which campaigns to end family court secrecy.”

It isn't clear which if any of the articles that have been written about Mrs B or the family court system have been penned by “Team Facto” journalists, because none of the authors has declared such an allegiance in their pieces, and Harman—curiously, perhaps, for the founder of an organisation campaigning for great openness—refused, in emails to me dated 19 June 2006, to disclose who they are.

Nevertheless, since January 2004, when Harman began leaking documents about the case, journalists have rallied to Mrs B's cause and written indignant articles about the supposed shame of Britain's closed family courts. The courts “have acquired a reputation for being Kafkaesque instruments of oppression,” wrote Cassandra Jardine in the Harper's Bazaar article. They are out of control and tearing apart perfectly normal families on the basis of mere suspicions in the “crazed mind of a State that has gone too far,” according to Camilla Cavendish in the Times on 20 June 2005. The paramountcy principle to which all doctors and child protection professionals are committed by law—that the welfare of the child should be the over-riding consideration—was nothing more than “a mantra used to protect the professionals,” wrote Cavendish in the Times on 12 January 2005.

Facto members or not, not one journalist writing about the case of Mrs B has told the full story. Harman's client has been presented only as an innocent woman unfairly hounded by dogmatic, incompetent doctors who had falsely accused her of poisoning her child, yet the reality was far more complex. There was, for instance, no hint in two articles in Nick Cohen's articles in the Observer (16 January and 4 December 2005) that the decision to take the child into care had revolved around far more than a mere difference of medical opinion over what might have caused a series of fits, even though by the time of these articles the appeal court had rejected Mrs B's appeal, ruling that the case for the care order had been sufficiently strong even without the disputed medical evidence (LU (A Child) and LB (A Child), Court of Appeal (Civil Division), Case No. B1/2004/0182 PTA, May 14, 2004).

The sad and disturbing litany of problems suffered by the mother can be found in the appeal court judgment on the Courts Service website (www.hmcourts-service.gov.uk/judgments.htm). The judgment also refers to the original family court findings (Mrs Justice Bracewell, Re B (a Minor), January 10, 2003), unchallenged on appeal, that the mother was “undoubtedly a skilled and persistent liar, who over the years has sought to and succeeded in conning doctors.” None of this, however, was allowed to spoil the media's story of yet another mother falling foul of the “discredited theory” of Munchausen's syndrome by proxy.

It is hard to say what influence the misleading media version of the story of Mrs B has had on the decision to reform the family courts, but there is little doubt that the government will be flinging open the doors to the press as soon as decently possible after its consultation ends on 10 October. Announcing her proposals for change on 11 July, the minister for family justice said: “People don't understand the complexity and importance of the work of the family courts, but that is an unfortunate yet inevitable consequence of sitting in secret. Public confidence depends on public scrutiny.”

The name of the minister? Harriet Harman, formerly the solicitor-general at the heart of her sister's “Mrs B” controversy. Quite how the media will live up to her expectations of it as a scrutineer of fairness and balance in the family courts remains to be seen, although its performance in the reporting of the case of Mrs B could be read as a poor omen.