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Thursday, 15 May 2008

TELEGRAPH - Joshua ROZENBERG - 15-May-2008

TELEGRAPH - Joshua ROZENBERG - 15-May-2008

MP makes 'outrageous' allegations, say judges
But John Hemming says the case is not yet over

By Joshua Rozenberg

Published: 1:26AM BST 15 May 2008

An MP made "outrageous" allegations against the integrity of a consultant clinical psychologist, the Court of Appeal has decided. Lords Justices Thorpe and Wall dismissed as "unfounded" a claim by John Hemming, the Liberal Democrat MP for Birmingham Yardley, that the expert was "in the pay of" a local authority that was seeking to take a child into care.

"Mr Hemming's allegation that [the psychologist] is part of an 'evil' system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious allegations when they are based on evidence," Lord Justice Wall said.

"I am astonished that somebody in Mr Hemming's position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly."

The story begins two years ago, when a woman of 21 gave birth to a premature baby, born at about 27 weeks. The mother had not realised she was pregnant until shortly before the birth. Her baby, known as KP, was born with "very many serious medical conditions" requiring skilled management.

The mother, referred to as RP, has a "significant learning disability". According to the psychologist, RP's limitations "are too extensive to allow her to parent KP successfully on her own".

And the father? He "does not play any part in the proceedings, or in the life of KP," the judge laconically recorded. A man of about 65, he does not appear to have cohabited with the mother at any stage and they "do not appear to have any form of ongoing sexual relationship".

Nottingham City Council began care proceedings when the baby was about four months old and still in hospital. The local authority was granted interim care of the baby by the City's magistrates and, at the age of six months, KP was discharged into the care of foster parents. She has remained in foster care ever since.

Ahead of the magistrates' hearing, the mother was assessed by a clinical psychologist – whose identity is also protected by a court order. The psychologist concluded that RP's difficulties in processing information would make it very difficult to understand and act on advice from her own solicitor.

So the Official Solicitor, Alastair Pitblado, was called in. As I explained in a column last November, it is his job is to seek justice in the courts for those who cannot speak for themselves and who have nobody else to represent their interests. A very lengthy explanation of this role is annexed to the court's judgment .

RP said she had a close and loving bond with her daughter and there would be no risk of significant harm to KP if the baby were to live with her. The mother thought the local authority had not given her a chance to acquire parenting skills.

But Mr Pitblado told the court that RP did not have the capacity to give or refuse consent to a placement order. The Official Solicitor decided that, in her best interests, he could not oppose the local authority's application.

Judge Butler, QC, sitting in Nottingham, agreed last year that the baby should be placed for adoption, dispensing with the mother's consent "because she is incapable of giving it".

It is at this point that Mr Hemming seems to have entered the stage. Acting with RP's brother, the MP told the Court of Appeal that RP did not know that the Official Solicitor had taken over the case from her own lawyer; that the Official Solicitor should never have been appointed; that the clinical psychologist had "given the appearance of bias"; that the placement order had been made in breach of RP's right to a fair trial; and that she had the mental capacity to conduct the proceedings.

Mr Hemming is highly successful at designing and marketing computer programs for businesses. According to his website, he is "one of the world's leading internet technical experts". Although he is not a lawyer, he and RP's brother were treated as "McKenzie friends" – lay people who are allowed to sit with a litigant-in-person and who were originally meant to whisper advice while the litigant addressed the court. In this case, however, Mr Hemming was allowed to address the Court of Appeal directly at a hearing in March.

RP's own solicitor had acted for her before the Official Solicitor was appointed. The same lawyer was then retained by Mr Pitblado. At the hearing two months ago, Lords Justices Thorpe and Wall read through the Nottingham lawyer's file and found that the local solicitor had explained the position to the mother on a number of occasions. In any event, once the local solicitor had formed the view that RP might not have the capacity to give proper instructions it was the solicitor's duty to seek a professional opinion on the mother's capacity.

Having examined the Nottingham solicitor's file, the appeal judges expected Mr Hemming to acknowledge that RP did indeed know that the Official Solicitor had been acting for her.

"Not a bit of it," said Lord Justice Wall. "In a nutshell, Mr Hemming's response was that the evidence contained in [the local solicitor's] file had been made up: in a word, fabricated."

Mr Hemming pointed to discrepancies in file notes, which he found "very strange".

Lord Justice Wall had no hesitation in rejecting the MP's claim. Any suggestion that the local solicitor had interfered with the file could be dismissed out of hand.

"I find it not only unacceptable but shocking," said the judge, "that a man in Mr Hemming's position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position."

Lord Justice Wall then turned to Mr Hemming's allegations against the clinical psychologist, quoting them not from anything he had said in court but from articles the MP had posted on one of his websites.

Describing the procedures in RP's case as "evil", Mr Hemming said they meant that "the local authority's expert can say someone is incapable of instructing a solicitor so the adoption case goes through 'on the nod'".

More generally, the MP likened expert evidence in family cases to "witching courts where the witch finder says 'she's a witch' and then the state dunks her".

Lord Justice Wall said those remarks implied that experts such as the clinical psychologist were "in it for the money" and happy to manufacture evidence.

These comments are not only wrong and ill-informed, said the judge. They also had no foundation in the evidence presented in court. "That they are made publicly by Mr Hemming once again strikes me as an abuse of his position."

Referring to the psychologist, Lord Justice Wall said she was jointly instructed by all parties in the normal way. The judge firmly rejected allegations that she was biased. As he asked, "what was in it for her?"

In rejecting Mr Hemming's criticisms as "ill-informed and tendentious", Lord Justice Wall accepted that the family justice system was far from perfect. Changes were needed, with greater transparency to combat inaccurate criticism. On this occasion, however, "the system has operated properly".

The Official Solicitor's appointment was the only proper course, the court held. Nottingham had considered RP's position carefully. Social services had done what they could. "While RP's love for her daughter is not doubted, her capacity to care for her independently is seriously deficient."

And Mr Hemming's advice to RP had been entirely adult-focussed. "Not once in his argument did he mention the welfare of KP."

But the MP remained unrepentant. "What is most important is that RP herself has still not had a trial," he told me. "I may not be a lawyer, but I believe that all people have rights and that of "hear the other side" and the right to a trial is perhaps one of the most important."

While continuing to allege that changes had been made to the case files – an allegation for which the court had found there was "absolutely no evidence" – Mr Hemming accepted that the alleged changes "were made without malice and indeed that was quite unimportant in terms of the case as a whole".

The MP also stressed that Nottingham did have a say in choosing the psychologist. "Given that the local authority was part of the decision-making as to the appointment of the expert, this results in an apparent bias on the appointment of the agent."

Mr Hemming said that RP would be asking the law lords for permission to appeal against the court's ruling. He was seeking new evidence. As far as he was concerned, the case was not yet over.

First published May 15, 2008

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