For their own good?: Nick Cohen attacks the secrecy protecting social services from public scrutiny in cases involving children

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The Independent Online
IN Ladybird, Ladybird, Ken Loach presents with typically uncompromising realism a terrifying depiction of a working class mother losing her children in a series of raids by social workers.

The audience is told the film is 'based on a true story'. Like many documentary dramas before it, the film raises questions about how far facts have been bent to fit the cinema's demands for a fast-moving plot and believable characters.

But the law stops us testing the truth of Loach's account. If we did, this newspaper was told last week, we would end up in court. There is nothing unusual in this threat. Councillors, newspapers and parents who claim they are victims of miscarriages of justice have all been told they will receive 'gagging writs' if they seek to question the actions or policies of social services departments in public.

In Loach's 'true story' Maggie takes her four children away from a brutal partner to a women's refuge. When she goes out, she locks her family in the room because other children in the refuge are violent. There is a fire and her eldest son is burnt. Social workers move in and the process ends with her children being taken into care.

Maggie meets a kind and loving political refugee with whom she has two children. Police and social workers take first one, then the other, after false claims from a malicious neighbour.

Hard-hitting documentary drama normally provokes controversy. The Monocled Mutineer, the television series about rebellion in the British army in the First World War, and In the Name of the Father, the film about the Guildford Four, produced angry but extremely illuminating debates about their accuracy.

With 80,000 children in care and the courts issuing 10,000 adoption and wardship orders a year, the abuse of power seen in Ladybird Ladybird appears at least as important as 1970s terrorist trials and mutinies on the Western Front in 1917. But there can be no serious debate on the issue because it is all but impossible to find out and publicly report what happens to children when they are taken from their parents.

Loach's Maggie is based on the story of a real woman, although Loach was forced to change her name, her children's names and the nationality of her refugee lover. She lives in a London borough. I, and other journalists, know the name of the borough. But we cannot tell you, nor report on-the- record answers about the case.

The borough's director of social services said his lawyers 'would certainly' seek an injunction to prevent our even naming the borough in which the film's events allegedly occurred. 'It's in the best interests of the children,' said the director. 'If you name the borough, they could be identified.'

Could they? It is hard to see how naming a council, which covers a shifting population of about 200,000, could identify Maggie, her children or their foster families. But by sticking to the formula that secrecy protects the child, the borough is able to prevent awkward questions about the film's allegation that it took children from a loving mother because she once lived with a violent man.

The rules can be bent, it seems, but only if publicity is favourable.

When the Sunday Times defended the council and attacked the film, the paper said it had been leaked details from Maggie's confidential files to support unattributed accusations against Loach.

The director of social services told us he was happy to criticise the film off the record. 'In childcare all things are tested in the courts,' he said. There have to be good grounds before anything can happen. It is not an accurate account of the reasons why her children were taken away.' He then admitted he had not seen the film.

Virtually every week newspapers receive injunctions issued by judges at the request of social services departments. These orders are made in secret. They are 'ex parte' - no other party is present to argue against them. There is also a mass of restrictions on public and press access to family cases when they are heard in court.

Preventing children in care or abuse cases being identified seems, and often is, a laudable aim. The first example of the modern gagging writ in a child case intended to do just that. Brent social services was under intense pressure in 1987 after the murder of Jasmine Beckford - a girl on the north London borough's at-risk register who was killed by her stepfather. It took out an injunction to stop Jasmine's brothers and sisters being identified.

Since then, the scope of injunctions has widened and the virus of secrecy has spread through the courts like Dutch elm disease.

In 1992, the Sunday Mirror discovered that a south London borough was about to place a 15-year- old boy with two male homosexual foster parents. The policy was not approved or even discussed by the elected councillors. His natural mother was not consulted.

Nevertheless, Mr Justice Douglas Brown issued an order which not only prevented the boy and the two men being identified; it prevented reporting of 'any details whatsoever' of the fact that a gay fostering had taken place.

Gay fostering was a legitimate topic for public debate. So too, was the council's poor record in caring for children. The boy had previously been allowed to roam as a rent boy in central London when he was meant to be living in a council children's home. The appalling conditions in this home had already been exposed in the press and it had later been closed. Despite all this, nothing could be said on the case. The local authority could not be named. Its officers could not be questioned.

Judicial secrecy reached its apogee this year, when the ex-wife of a man convicted of indecency claimed that Central Television should not be allowed to identify her husband in a crime documentary because she was worried people would realise that she and her child had once lived with him. The programme showed Scotland Yard detectives tracking down the man and arresting him on a charge of gross indecency.

There was no suggestion that the care and upbringing of the boy, who did not live with his father, was in danger, but Mr Justice Kirkwood ordered the televison company to obscure the man's face when it ran the film. If the ruling had stood - the Court of Appeal overturned it in February - any criminal with a child would have been able to demand anonymity. That a judge could issue the ban in the first place is an alarming indication of the judiciary's contempt for freedom of information.

The assumption behind so many of these cases is that when a court takes a child from its parents, it is in the best interests of the child that he or she remain anonymous.

No doubt it usually is. But surely not always. Most people would think that, if at all possible, children should live with their parents rather than in council care. If a parent is falsely accused of neglect or abuse, the damage done by removing the child from home may far exceed the damage done by any publicity. Without some degree of public scrutiny how can we be sure that such damage is not being done? Where does the innocent parent go for redress?

When social workers launched their now notorious 1991 dawn raids in Rochdale and took 23 children into care, parents found it was unlawful to protest to anyone.

A High Court injunction prevented them appearing on television to argue their innocence and demand that their children be returned. But it also prevented the parents from going to their elected councillors for help and advice. Rochdale Council decided that the injunction made it 'inappropriate' for any councillor to get actively involved in what was rapidly becoming a national scandal. There could be no discussion of the case, not even at a private meeting of the Social Services Committee, which is meant to control the social services department.

Under the cover of protecting children, orders granted by the courts are thus compromising democratic accountability, open justice, and freedom of information. Geoffrey Robertson, QC, Britain's leading expert on media law, believes many judges, with their backgrounds in tax, divorce and civil law, have no understanding of the importance of these issues, and of rights in general.

The answer, he believes, is to train them. 'Far too many people on the left assume the judiciary is some sort of upper-class Oxbridge conspiracy. Most judges do what they are trained to do. If they are trained to take rights seriously, they will.'

It is a deceptively modest proposal. In a country with no bill of rights and no written constitution, and which leaves few options open to ordinary citizens when they have to challenge over-mighty government, the idea that a Lord Chancellor would insist that judges must be trained to respect freedom of expression and information is revolutionary.

(Photograph omitted)

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