The Witchfinder considers the arguments in the case of re D, in which Mostyn J and the Court of Appeal have a significant disagreement.

Re D concerned an 18-month-old child of Czech / Roma heritage, whose parents live in the Czech Republic. The question was whether  the case of this Czech family should be dealt with in the UK or whether a request should be made to the Courts in the Czech Republic to take over the matter.

The case was managed by Mr Justice Mostyn, who gave a judgement in the High Court that the Czech Courts should indeed be invited to decide the matter. His judgement was later overturned by the Court of Appeal and then remitted back to Mostyn J to dispose of the remainder of the case. Mostyn J then gave a further judgement that the child could be placed with foster carers in the Czech Republic whilst taking a few swipes at the judgement of the Court above. The case is important because of its subject and interesting because of the strident judicial disagreements.

Your inquisitor finds writing about this case to be difficult, because he has the greatest respect for Lord Justice Ryder who delivered the judgement of the Court of Appeal as well as Munby LJ, who agreed with Ryder. Both are good and decent men – Ryder LJ is in fact the very first judge the Witchfinder ever appeared before back when he was a High Court judge. It is just that in this instance Mostyn is right.

The case raises issues of the utmost importance. In this country we have child protection services who attach paramount importance to adoption. This extends in many cases to taking into care children of foreign visitors and using the Court to have them adopted at our expense, forever severing them from their origins.

Trans-cultural and trans-racial adoption is a minefield, a difficult area where the most well meaning adoptive parents and public institutions can cause terrible harm. One of the most obvious types of such adoption is the adoption of a black child by white parents. The problems of such have been well documented in the United States.

Whilst such adopters may be well meaning and sometimes reach positive outcomes the process is fraught with challenges such as the reaction of others and the fact that the child’s adoptive status cannot be concealed. Even something as simple as hair care can cause huge distress because white and black people have profoundly different hair.

Adoption of any kind is complex and difficult and may have poor outcomes. There have been many studies showing that adoption can be harmful, for example researchers at the University of Minnesota have found that adoptees have greater risk of mental illness or suicide.

Of course sometimes having children looked after by non-parents is unavoidable. In this case the father was found during the first hearing to be a sexual abuser, whereupon he fled the country. The mother, who also moved back to the Czech Republic, regrettably remained in contact with him having promised not to.

Let me postulate a hypothetical scenario. Let us say that there had been a policy of the old British Empire that children born in Abyssinia (nowadays called Ethiopia) to African parents with non-modern social and sexual mores should be –

• forcibly separated from their parents,
• taken to Britain,
• and adopted by white people.

Everyone would say it was racist and we would be apologising for it today. The same would hold true if, ex-hypothesi the policy only applied to random Abyssinians who visited the British Isles from the provinces.

In fact the Australian government from 1869 to 1970 pretty much did exactly as above with Aboriginal Children. The events are now called, ‘The Stolen Generations’, and on 13/02/2008 the Australian House unanimously voted to apologise for this historic wrong. Of particular note it apologises for “indignity and degradation”. This would mean that the wrong would have fallen under Article 3 ECHR (inhuman and degrading treatment) as well as Article 8 ECHR (family life) if it occurred here.

Unfortunately the British Child Protection system is intent on ignoring those poignant historical lessons and carrying on regardless. Indeed, the country at issue in this case, the Czech Republic is a modern state with (as Mostyn rightly points out) a perfectly functional child protection system and is accepted as a member of the EU and the Council of Europe.

The First Instance
In any event, turning to the instant case Mostyn found that the UK Court should make a request to the “court exercising public child protection jurisdiction in the municipality of Novy Jicin in the Czech Republic” to accept a transfer of the case.

The first point Mostyn relied upon, perhaps unfortunately, in his ratio at paragraph 26 was a purported ‘subtext’ in Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003. He goes on to say, in my view with much greater force,

“It must not be forgotten that the local authority’s application is for a placement order. That would (almost) inevitably lead to an adoption order, most likely with an English family, and severance of his connection with his homeland, his ethnicity, and his half siblings B and K.” He points out later in his judgement, “[…] any proceedings in the Czech Republic will be conducted in the first language of the parents.”

I find it almost impossible to disagree with Mostyn save on the point of a ‘subtext’ in Article 15 of the Regulation. I do not believe that there is one. The points Mostyn makes go to Articles 3, 6 and 8 of the European Convention on Human Rights.

My personal view is that the Regulation is neutrally worded but that it is instead Articles 3, 6 and 8 ECHR that require as Mostyn says “[…] in child public protection cases the court of a fellow EU state ought, all other things being equal, to decide the future of its own nationals unless the connection of the child to his or her homeland has become so tenuous as to be an irrelevant consideration”.

Article 15 of the Regulation merely facilitates what other international law demands. I also observe the argument I raise is untested in the Court of Appeal and so could be adopted at first instance by a Court of its own motion (or an advocate for a particular point of view).

The Court of Appeal
The Court of Appeal fundamentally disagreed with Mostyn on Article 15 of the Regulation. It overturned his decision and found it should have been decided the other way.

I cannot fault the Court of Appeal for that but I can fault them for their complete silence on Article 8 ECHR and their failure to explicitly apply such jurisprudence to the matter in their the judgment. I am afraid the issue of the subtext leads them into dangerous waters.

At paragraph 40 – the Ryder LJ asks “Did the judge allow the answer to the question of the child’s particular connection with the Czech Republic to become the dominant issue […]” and answers, “[…]In my judgment, the identification of the nationality of the family has become decisive.”

To that the Witchfinder would say – “Why not?” and “As it should be.”

There was also an unfair although obliquely delivered criticism by Lewison LJ that the first instance judge, Mostyn, was hostile to adoption. Mostyn was in fact merely recognising prior judgements of the Senior Judiciary that adoption by its nature is an extreme and risky step that ought only be taken where nothing less will do.

Back to the High Court
Having disposed of the transfer request, Mostyn was left to consider 4 competing proposals –

The mother wanted the Court proceedings dismissed, which Mostyn understandably refused to do although it should be noted that the plan “[was] supported by the Social Services department in Novy Jiĉcin and by the family’s psychotherapist there Leona Hozova.”

The local authority submitted that, “It is proposed that ED is placed for adoption in the UK” – plus ça change.

The remaining options were Special Guardianship with the current UK foster parents or fostering in the Czech Republic. Mostyn took the view that Special Guardianship was the best option and praised the current foster carers. Failing that, he asked the Czech authorities to consider fostering there.

Finally, and perhaps most importantly, was the scrutiny of the deeply ideological view of the UK Social Worker Janet Kavanagh –

“The benefits of successful adoptions are well-evidenced: the overview of evidence research by Coram and Barnados (Exhibit 2) shows adopted children have good psychological outcomes and more stable placements than children brought up in care. “Adoption by contrast (with long-term fostering) is associated with lower disruption rates and placement stability confers a reduction of problems over time and growth of attachment” (Social Care Institute for Excellence in their scoping review of research of looked after children, Exhibit 3). Moreover the Adoption Research Institute (Exhibit 1) goes so far as to state that said that, ‘Adoption should be considered for every child who can not return home’.”

The flaw in her statement is evidenced in the first line – “The benefits of successful adoptions are well-evidenced”. This is a tautology. Of course a successful adoption will be beneficial – an adoption will only be considered successful if there is a good outcome. Of course many adoptions are not successful and do harm, which is why the University of Minnesota and many others take a more cautious view.

Mostyn, who is quite rightly politically neutral, merely points out –

“The proposition of the merits of adoption is advanced almost as a truism but if it is a truism it is interesting to speculate why only three out of 28 European Union countries allow forced or non-consensual adoption. One might ask: why are we so out of step with the rest of Europe? One might have thought if it was obvious that forced adoption was the gold standard the rest of Europe would have hastened to have adopted it.”

Mostyn’s point is interesting and valid but illustrates a wider point about the hubris of some individuals within the family justice system.

The great human errors of the 20th Century were the errors of the Left. The Socialist and Communist governments that rose and fell in that century all failed, soaked in blood and weighed down by economic failure. The error common to all of those nations was an overestimation of their own abilities. Centrally planned economies fail because human beings, even with the best computers, neither have nor can process the information needed to manage everyone in the economy.

The point is most eloquently illustrated by the seminal economic paper, “I, Pencil” by Leonard E Read, first published in 1958 but still in print today. The text is aimed at children but more usually put to Economics undergraduates. The narrator – the eponymous pencil – is a child’s school pencil. It is made of wood and graphite, with a coating and a rubber held in a metal holder on the end.

The construction of a pencil might seem simple until one considers its antecedents. Mining for ore requires geological knowledge to find it, machinery to mine. Making machinery itself requires deep technical knowledge and the extraction of further resources, including petrol or other fuels. The same applies to the chemical processes in the making of the rubber or the metallurgical processes of moulding the bit of metal.

In short, if one were to map fully the dependencies of the industry that produces a simple child’s pencil one would conclude that it required thousands of people, hundreds of disciplines (some to postgraduate level) and ultimately no one person knows a fraction of the whole process from beginning to end. As the pencil asks, “Does anyone wish to challenge my earlier assertion that no single person on the face of this earth knows how to make me?”

No one but a fool would challenge the pencil. It is a childishly simple but irrefutable statement of the limitations of the knowledge and ability of individual humans. The superficially chaotic and unmanaged environment of the free market proved vastly more efficient than the planned economies of the USSR and its allies because people were left to make small decisions about their lives using their superior direct knowledge about their own narrow circumstances.

The same errors are seen today in the attitudes of the UK Family Justice system. We are a nation of 60 million people, in a world of 6 Billion. If the world came here, we could not feed them all. Still less can we manage the life of every forlorn child.

Economics reveals that even a simple child’s pencil is a machine of staggering complexity. Children themselves are each a universe of their own and the British family justice system needs to shun the colonial arrogance of previous centuries and accept that it cannot solve every problem. The welfare of some children is better left to others.

UPDATE 29/10/2014
An astute reader points out that I had used the word Czechoslovakia interchangeably with Czech Republic. Czechoslovakia no longer exists. This has been corrected.

It has been pointed out that I have implied that Abyssinia a British colony. In fact it never was, although as my example was hypothetical and merely implied it was, I have left it unchanged.