In Your Defence

by Sarah Langford

  I watched Judge Nicholas listen, carefully, as all the barristers cross-examined Dr Dymphna in turn. Then he leaned forward. ‘Dr Dymphna, the level of work you are recommending with the mother is intensive. You have suggested that, were she to move from her placement into the community, you would expect daily visits for some period and close supervision for at least a year. The local authority and guardian have raised two objections to your plan. Firstly, the high level of resources required. Secondly, the consequential delay for the child if the work is undertaken and fails. You are aware that we are now required to conclude these kinds of proceedings within twenty-six weeks – a timescale that we have already missed. Can you help us, please, as to why this further delay and intervention is necessary?’

  Dr Dymphna turned to look directly at the judge and he stared back at her in silence. Before she spoke, I thought I heard her give a sigh. ‘The mother is young,’ she replied. ‘She is at the beginning of her reproductive career. She will almost certainly go on to have more children and, if this child is removed, a pregnancy is statistically likely to happen relatively quickly, as has already been the case. The child this court is concerned with is the fourth generation of his family who has had contact with social services. At some point the opportunity to break the cycle should be seized. I am aware of a study currently being undertaken to examine birth mothers in recurrent care proceedings.18 Records held by the Children and Family Court Advisory and Support Service suggest that one quarter of all children in care proceedings are from vulnerable mothers aged under twenty-five who have had successive children removed. Of the women studied, the average number of children removed was three. This mother,’ she swept her hand towards Maggie without looking at her, ‘is at very high risk of becoming one such statistic. If we don’t act now, there is every reason to believe we will be back in this courtroom in a few years’ time.’

  I looked at her words in my handwriting in my notebook. A flow of faces passed through my memory. The young mothers and fathers I had represented. The ones I had represented more than once. All the unseen, silent children.

  ‘I know, Sir,’ Dr Dymphna continued, ‘that you must complete a balancing act. On the one hand, I would say that the current timetable of twenty-six weeks imposed by the legal framework is completely unrealistic in terms of enabling and testing long-term change in a mother who has been assessed as presenting a potential significant risk to her child.19 I also understand that the court has no influence on the local authority’s monetary distribution. However, the court should remember that the cost of a foster placement is, on average, between twenty-nine and thirty-three thousand pounds each year.20 The average total cost of removing a child from its mother is between two and three hundred thousand pounds, depending on what kind of placement is undertaken.21 I am unsure about the cost of instructing an independent social worker, and therapist, to undertake the work I have recommended in this area …’ she waved her hand dismissively towards the window, towards the concrete car park beyond, where rain pattered listlessly into sad grey puddles, ‘but I would expect it to be around a few thousand pounds.’ She paused. ‘Quite simply, failing to teach this mother to parent could cost this local authority significantly more than doing so.’

  Dr Dymphna looked down at her report, which remained unopened in the file in front of her. ‘I feel I should say that, in my professional experience, the success of an outcome depends in large part on the approach taken by the local authority. Where the court has gone against a local authority and the local authority is still not minded to get on board, then any intervention is, frankly, unlikely to succeed. Bearing this in mind, if this baby is to be placed for adoption it should be sooner rather than later. The prospects for adoption are, quite simply, better for younger children. There is an emerging body of work which suggests that emotional impact becomes encoded at a younger age than was previously thought. Placement failure is higher for children after six or seven. I should say, though, from the child’s point of view, I cannot see why he cannot stay in his current placement with the mother until the adoptive parent is found. I see no difference between this and placing him with another foster carer, or several different carers, before his final move.’

  I wanted to turn around, to reach and put my hand over Maggie’s. I wanted to offer her something – although I did not know what, for I could not reassure her that what had been said was either irrelevant, or untrue.

  Maggie gave evidence the following day. She described what it had felt like when Andrea arrived at the placement without warning ‘with the adoption lady’. How Maggie had sat in silence as they took photographs of Aaron and asked questions about him to put in his booklet. His advertisement for a new family. I glanced to my left to check that Andrea was listening to Maggie’s evidence but saw that instead she was whispering to her manager, who was sitting beside her with a hand of reassurance on her back. She had given evidence just before Maggie. It had not gone well.

  ‘They got into such a panic,’ I said to my solicitor, on the way home after court, as I leaned against the wall of the train corridor and looked out of the window at a world already in winter darkness flashing past. ‘We were halfway through my cross-examination of Andrea. She stuck to what she said in her statement – pretty much ignored all of the expert’s evidence, just said Maggie’s history was too much of a risk, the fact she’d already failed once and so on. Even when I put to her all the programmes Maggie had gone on – off her own bat – she just said that there was no way of really knowing that Maggie wanted to do them, or that she had actually understood what they had taught her. That Maggie was the sort of personality to exhibit disguised compliance.22 Damned if you do, damned if you don’t, that sort of answer. She conceded, just, that there might be an argument for delaying adoption to test Maggie’s parenting but that to do so was not within the timescales of the child. Anyway, I was asking her why she had cherry-picked a handful of notes from the foster carer to attach to her statement – the only ones which could be read as critical of Maggie. It was only then that the judge realized he hadn’t got the full set of foster carer notes. He had never received the updated index and so he hadn’t noticed they were missing. He was furious. Andrea had to admit that the rest of the notes were all positive, even though there was no mention of them in her statement. Pippa then tried to blame the LA’s admin staff – said it was their fault, not hers. You can imagine how well that went down …’

  I rang off with a promise to call the following day, then returned to my seat on the fugged-up train to go over my notes and prepare for my cross-examination of the guardian. The next morning, Deborah, the guardian, stood in the witness box and swore the oath. It was the first time I had studied her properly, for she had not come to any of the earlier hearings. She was in her late fifties, with a bush of wiry grey hair and an anxiously mobile face. Around her neck, on a rainbow-coloured cord, she wore half-moon glasses which rested over a brown linen jacket. Her statement was now many weeks old and, as she gave her evidence, I listened for a sign that she would retreat from her blanket approval of the local authority’s case. A guardian volte-face was not unusual in circumstances where a judge appeared to doubt the local authority’s approach, and Dr Dymphna’s evidence had given her ample reason. I knew that the skill was less about attacking her failure to give an independent examination of the evidence, and more about showing her the way out. I needed to offer her an excuse to say she had reassessed her recommendation – point her towards fresh evidence or refer her to the progress made by Maggie since she wrote her statement. Deborah blustered and stalled, but ultimately stuck to her view. No, she said, based on her many years of experience she was quite sure that Maggie’s problems were too entrenched, the challenges too hard, the support she required too great. She did not consider that leaving Aaron in the care of his mother without the constant supervision of foster carers would do anything other than place him at significant risk. I watched the judge, but he just looked carefully at her a
nd made a note in his book.

  It was late in the afternoon by the time the evidence had all finished and our closing speeches given. As the judge rose, causing us to do so in response, he looked weary. He would give his judgment tomorrow, he said, but he wanted the morning to deliberate. We need not be at court before 2 p.m. As the door swung shut behind him, I wondered how any person could possibly bear the weight of the decision the judge was being asked to make.

  I stood waiting for my train at the station, unable to push away a sensation of resignation. I had been here so many times: cases where I had felt, at individual moments throughout the hearing, that my client was in with a chance. That the judge must understand the strength of the child’s bond with their parent; that he must see the efforts they had made. The father had explained away the bruises. The mother had said they were not her empty bottles. They had promised there would be no more violence, no more police call-outs; they would do anything if it meant they could keep their children. My job is to fashion a crystal ball from evidence and ask the judge to decide whether he or she can see far enough within it to feel able to take the risk. But, at this point, when the decision cannot be influenced and I no longer need to believe, doubt creeps in. This must be the same fear which bears down on every social worker who has no agenda other than the protection of the child: that it must surely be the definitive act of selfishness to risk a baby’s future with an experiment in which they might pay a lifelong – or the ultimate – price. The train arrived at the platform and I climbed on and took my seat, trying to push the thought away.

  Six months later, in the city heat of midsummer, I stood on a tube train into Temple. I had taken off my jacket, which now lay limply over the extended handle of my wheelie case, and leaned against the end of the carriageway near an open window, allowing the strange warm gust of wind that rushes through London’s bowels to cool the sweat on my neck. It was teatime and I was returning to chambers to drop off my files. Maggie’s files. For that day was the last time I would ever see her.

  At the end of the final hearing the previous winter, Judge Nicholas had come into court and declared he was not going to make a decision after all. He wanted there to be an assessment of Maggie’s parenting in the community, at the level and intensity suggested by Dr Dymphna, and he wanted the local authority to pay for it. He found as a fact that as soon as the initial parenting assessment of Maggie had been negative they had closed their minds to the possibility of any other outcome but adoption. They had done, he said, no work with Maggie at all, even though there was much that could be done. Work that might just break a generational cycle; that might allow Aaron to be brought up by his family – and, very possibly, future children also. He would give the local authority a week to put a plan into place and if they had not done so then he would have no choice but to dismiss their application and remove their legal power over Aaron.

  And so, over the coming months, Maggie moved into her own council flat in a converted house in the suburbs. The foster mother from her placement came to see her often. She was to have help with budgeting, problem-solving, parenting and life skills. And she was to have her own therapy, which might begin to loosen the complicated knots within her.

  I thought of her often over the months that passed. I wondered how alone she must have felt arriving in the darkness of winter at a place she did not know. I wondered how hard it was to refuse Shelly’s calls; to have the humiliated social worker visit her home, look in her fridge and cupboards and bedrooms, and wait for her to fail.

  But Maggie had not failed. And so, on a bright and sunny August day, Judge Nicholas had made his final decision. There would be a Supervision Order requiring the local authority to support and monitor Maggie for a further year.23 There was still potential for significant risk, he said; he could not ignore it, but it was insufficient to separate this mother from her child or to give the local authority care of him. His decision was clear. Maggie would keep her son.

  As I walked through the stone archway leading away from Temple Church towards chambers, I suddenly felt overwhelmed by the white-stoned gravity of the place. I knew that the risk for Aaron was great. I knew I would be unable to overcome a desire to search for Maggie’s name on Google or Facebook, looking for clues as to whether she had made it. Waiting for the image that would reassure me: her face in a photograph, grinning, pressed up against the cheek of a toddler with a crop of brown hair and slanting green eyes. And that only then would I be able to admit how relieved I was; how grateful that this little boy was smiling up at me from the bright screen on my desk and not from the front page of a newspaper.

  7

  Peter

  Inner London Crown Court

  The Protection of Children Act 1978

  Section 1– Indecent photographs of children

  (1) Subject to sections 1A and 1B, it is an offence for a person—

  (a) to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or

  (b) to distribute or show such indecent photographs or pseudo-photographs …

  Archbold Criminal Pleading Evidence and Practice, Chapter 31 – Offences against Public Morals and Policy

  ‘Making’ includes opening an attachment to an email containing an image, downloading an image from a website on to a computer screen, storing an image in a directory on a computer and accessing a website in which images appeared by way of automatic ‘pop-up’ mechanism.

  I USED TO think that I could spot a paedophile.

  In my first few years as a barrister I began to believe that people conformed to stereotypes more often than they disproved them. That belief was only strengthened by the sex offenders I encountered, who so often cleaved to a type: the dysfunctional youth volunteer with the greasy stain of otherness; the pockmarked school caretaker; the reedy-moustached tyrant teacher, all using their careers as cover for their abuse. I discovered that these men – for they were mainly men – were marked out not only by their life on the fringes and their lack of social inclusion, but also by a predictable refusal to admit their crimes.

  I once covered an early hearing for a barrister whose client, Mr Bunn, had been accused by a man in his twenties of abusing him many years earlier. The statements I read the night before the hearing contained the kind of horror that makes representing someone charged with these crimes so conflicting. The shock of the story left me light-headed, as though I had watched a deep wound being inflicted, someone’s muscle pulled back from their bone. In the years afterwards I discovered that, although I never forgot the images that the words created in my head, their power lessened. Familiarity brought with it desensitization. Repetition reduced their impact. Torment and suffering were turned into text within a statement as human horror morphed into cold evidence. Rape. Penetration. Fissure. Bruising. Blood. Abuse. Someone else’s hell translated into tomorrow’s job.

  When I was asked to cover Mr Bunn’s hearing, though, I was still a pupil and the evidence against him made hard reading. The complainant recalled how, as a boy, he was raped by Mr Bunn on his childhood bed, which was reflected in a mirror in the hallway. He spoke of how he would watch in this mirror the moment when, upon ejaculation, Mr Bunn would fling back his long, oily hair. It was vivid and memorable and, therefore, entirely believable. When I read the papers, I was relieved that Mr Bunn’s guilt or innocence was not my concern – my only duty was to represent him in a hearing about diary-juggling. All I had to do was offer no resistance to the prosecution’s application to postpone the trial date by a month. My terror at being in a grown-up court, dressed in a barely worn wig and gown, was mitigated only by the knowledge that I would have to say fewer than five words. The task was to get in and get out without disruption or intervention.

  Early the following morning, I walked along the corridor of Guildford Crown Court. It was busy. The blocks of seats flanking the wall opposite the courtrooms were filled with huddled conferences between barristers and their clients, uneasy eyes and
twitching jaws. Without my pupil master to follow, I worried how I would identify my client. I walked to the courtroom door where the hearing was listed and scanned the people hanging around outside. Then I noticed a man sitting alone, a few feet away, staring straight ahead and past me. He was wearing bottle-bottom glasses and a soiled navy-blue anorak. In his hand he held a folded-up piece of paper and I could see from where I stood that his fingernails were stained yellow and over-long. His hair, receding at the front, was tied with an elastic band into a thin, limp ponytail.

  ‘Is there a Mr Bunn here?’ I called over the throng of people, surprised at the assurance of my voice. The man with the ponytail looked up and stood, then walked over and extended his hand for me to shake it.

  After the hearing I went to the bathroom in the robing room and, even though I felt embarrassed doing so, I washed my hands three times. From then on, if I represented a paedophile, I usually did not need to call out their name. I would know who they were from a sweep of the room.

  But then I met Peter. Peter had curls of strawberry blond hair, streaked with summer light. His face seemed angular, as though it were waiting for age to fill it out. Its childlike milkiness was marked with tiny freckles which ran over the bridge of his nose, upon which sat an oversize pair of rectangular tortoiseshell glasses. He wore a well-intentioned cheap black suit on his willowy frame, and smelled of soap and fear. He had just turned eighteen.

  On Peter’s computer were over two hundred images of child abuse.