On most occasions, an appearance by John Hemming MP in a court of law is worth watching for its entertainment value alone, but on this occasion I’m inclined to agree with PoliticalHack that:

“This case is too serious to joke about.”

It is.

Hemming ‘contribution’ to a hearing at the Court of Appeal was described by the Judge, Lord Justice Nicholas Wall as:

“not only unacceptable but shocking”

While the full judgment levelled a stream of criticism at Hemming that is almost, if not entirely, without precedent in civil proceedings in which a Member of Parliament has taken part – I have certainly never seen a judge lay into an MP in quite such strong and unequivocal terms.

I’m not going to dwell on the detail of the case, PoliticalHack provides a pretty good summary of the case and the judge’s remarks, and the full judgement can be found here in all its gory detail. Instead, I want to pick up on Hemming’s self-serving response to the judge’s comments, which he has since published on his personal blog and which I will attempt, by cutting through the Latin and the bullshit, to translate into plain English.

Bias and Apparent Bias

Firstly I provided the court with evidence that local authorities and Nottingham in particular had been in receipt of hypothecated funding ringfenced towards adoption. This practise ceased from 1st April 2008.

The relevance of which is?

Local authorities receive hypothecated funding from Central government, linked to performance targets, for many different purposes. The mere existence of such funding is not, in itself, evidence of bias while reference to ‘apparent bias’ is specious to say the least.

The second leg of Natural Justice requires Nemo Judex in Causa Sua. The decisions of the local authority in terms of both whether to initiate care proceedings and assessment fall foul of the need for the local authority to make those decisions in an unbiased manner. It is clear that both the existence of the BV163 adoption targets and the hypothecated funding (both scrapped from 1st April 2008) created an apparent bias on the local authority. Magill v Porter [2001] UKHL 67 [2002] 2 ACT 357 at [103] (Lord Hope: “The question is whether the fair minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”) The decisions of the local authority would have been potentially subject to judicial view. Similarly, the expert in acting as the agent of the local authority is subject to the same apparent bias. This could be merely a bias in terms of the selection of the expert rather than necessarily a bias in terms of the actions of the expert herself.

The danger, therefore, with the single expert system is that an apparent bias exists in terms of the selection of the expert whose evidence is then not contested as has happened in this case.

I did give reference to the legal precedents relating to bias when listening to opinion.

Blah, blah, blah – sidestepping the bullshit and legalese, what Hemming is saying is simply that he could produce no factual evidence whatsoever to support his contention of bias but believes the court should have accepted his arguments anyway, even though they amount to nothing but an unsubstantiated conspiracy theory, a view clearly shared by the judge in paragraphs 123-125 of the full judgment:

123. Furthermore, I simply do not understand the allegation of bias. How did HJ demonstrate bias? She was asked her professional opinion in an open and clear way, and she gave it. I regret to say that I suspect that the allegation of bias is made because RP (or those advising her) do not like the conclusion which HJ reached. Once again, however, I have to ask myself the very simple question: why should HJ not do her job properly and conscientiously? As with SC, what was in it for her? If her professional opinion had been that RP had capacity, she would have said so. Her professional opinion was that RP did not. That was an opinion she was plainly entitled to reach on the material before her and the proper application of her expertise to it.

124. Even more unarguable – indeed it is outrageous – is Mr Hemming’s allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence.

125. Mr. Hemming’s allegation that HJ 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 accusations when they are based on evidence. 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.

HJ, to clarify their role, is the clinical psychologist who assessed the mental competence of the plaintiff in this appeal, prior to the legal proceeding to which the appeal relates.

In view of the judge’s comments, one has to question whether Hemming should undergo a similar test of competence before being allowed before a court again.

Getting back to Hemming’s response, his next complaint is…

File Tampering

I pointed out to the court that certain documents were unusual. One document was sent by the Official Solicitor to the mother’s solicitor. This document had an unusual address format and also did not have a “received” stamp from the solicitors office in which it would have been received.

A second document was a note in a completely different format to other notes. It indicated that the first document had been posted to the mother with a compliments slip. The use of a compliments slip was an unusual instance. The date on this note was clearly wrong as it was the same day as the first document had been posted when the first document would not have been received.

In the 1980s I was involved in a number of legal cases as an expert witness looking for fraud. I took the view that the above indicated that the file had been tampered with. Indeed it was recognised that retrospective changes had been made to the file, but I am not going to contest the argument that they were not fabricated.

I should think not – the relevant section in the full judgment begins at paragraph 81, and details an exchange which led to the judge taking the view that:

85. Over the period during which this judgment has been reserved, I have, of course, carefully considered Mr Hemming’s interventions in this part of the case, and I have re-read the files. Having done so, the feeling of incredulity which I experienced on 4 March has not diminished.

86. In my judgment, SC’s files demonstrate overwhelmingly four clear facts. They are; (1) that RP was fully aware that SC had doubts about her ability to provide instructions; (2) that RP was fully aware that the Official Solicitor was being approached to act on her behalf; (3) that she was fully aware that the Official Solicitor had been appointed, and was representing her; and (4) that she was fully aware of his role in the proceedings. In short, RP’s assertion that she did not know the Official Solicitor was acting for her is manifestly unsustainable.

87. Mr. Hemming’s response on RP’s behalf is that this cannot be so because the file has been interfered with. I have, of course, considered that response with care. It is a profoundly serious allegation. However, it is one for which, in my judgment, there is absolutely no evidence. The only query is the mistaken date on the typed attendance note.

88. I find it not only unacceptable but shocking, 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. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.

One of the most common of a characteristics found in conspiracy theories, and amongst conspiracy theorists, is a profound unwillingness and inability to accept that ordinary people make ordinary mistake, such as mistyping a date or misrecording the time of event.

To most of us, such things amount to nothing more than evidence of a minor and entirely mundane cock-up – to Hemming, they are proof positive of a conspiracy and of deliberate manipulation of evidence to conceal the ‘truth’.

Hemming’s final point is, manifestly, the most absurd and tendentious:

The Key Point

The key issue, however, is not whether or not the file had been tampered with, but that the mother had never been given an opportunity to put her side of the argument.

Human beings should have some rights. However, the one of the most fundamental has to be to have the opportunity to be heard in legal proceedings.

The Court of Appeal have determined that the fact that the mother was never given an opportunity to challenge the assertions of the local authority and its experts is acceptable.

This is a far more important issue than whether or not my contested assertions are true or not.

Sounds dreadful, doesn’t it? Except that Hemming is omitting a very important piece of information:

6. The appellant is RP, who was born on 2 February 1985. She is the mother of a female child, whom I will identify by the initials KP, and who was born on 7 May 2006. RP appeals against care and placement orders made by Her Honour Judge Butler QC sitting in the Nottingham County Court on 29 August 2007.

7. KP was born prematurely at approximately 27 weeks. The undisputed evidence is that RP was not aware that she was pregnant until she visited her general practitioner very shortly before the birth. After she was born, KP remained in hospital. As the judge stated – and this does not appear to be in dispute – KP “has very many serious medical conditions with which to contend” and requires skilled day to day care and management.

How is it that RP was not aware that she was pregnant at such a late stage?

Well, the answer to that lies in this passage of the judgement, which gives HJ’s assessment of RP’s mental capabilities:

1. Please assess whether RP has a learning disorder or learning difficulty and the extent of the same.

(RP) told me that she attended a mainstream school, but often truanted from school because of being bullied. She said that she had left school without taking any exams and has no qualifications. She does not think of herself as someone with learning difficulties.

In order to assess her intellectual ability, I completed a Wechsler Adult Intelligence Scale – Third Edition (WAIS-3) with her. This is a standardised measure which indicates overall level of functioning as well as any specific strengths and deficits the individual may have. RP’s scores on the WAIS-3 showed that she has a significant learning disability. This is a global disability, affecting all aspects of her functioning. I examined her scores for evidence that her functioning might have been limited by poor school attendance. However, the distribution of scores across the subtests suggests that this would not account for her learning disability.

(RP’s) verbal abilities, as measured by the WAIS-3 were at the 2nd percentile (2% of the population would be expected to score at this level or below). This includes the ability to understand and recall information presented verbally, and think conceptually to resolve problems. Her performance abilities were at the 1st percentile (1% of the population would be expected to score at this level or below). This includes the ability to solve practical problems using information presented visually or in concrete form.

This profile indicates that (RP) does not have the overall understanding and ability which her initial verbal presentation might lead one to expect. Information will need to be presented to her in simple terms, using concrete rather than abstract language wherever possible. She has an ability to repeat verbal material which is in advance of her ability to comprehend or make use of this information. This can give a misleading impression, especially as she is unlikely to say when she has not understood something.

Her poor organisational and sequencing abilities to make it hard for her to plan and execute practical tasks. Complex tasks will need to be broken down and demonstrated with repetition in a consistent way. Pictures and diagrams will not be of any particular assistance to her, as she will not find it easy to transfer learning from these into practical situations.

Because of the level of her difficulties RP will find it hard to generate new solutions to problems independently. This means that while she may learn appropriate skills when she is shown, she will find it hard to adapt these when there are changes in her situation.

RP has a severe, if previously undiagnosed, learning disability – indeed her cited performance (2nd percentile for verbal ability, first percentile for verbal/conceptual reasoning would put her IQ at somewhere between 55 and 70.

Based on that assessment, RP was deemed not to be competent to independently instruct a solicitor as was, therefore, represented by the Official Solictor who, having viewed the evidence, chose not to contest the decision of the Local Authority to apply to place the child, KP, initially into foster care with a view to later adoption.

If the mother is not competent to instruct a solicitor to act her interests, then how the hell could she possibly be considered competent to care for a baby?

That said, what I personally find most disturbing and distasteful in Hemming’s efforts to justify his conduct in court is his reliance on the claim that that the mother, RP, was denied to opportunity to put ‘her side of the argument’?

Who’s side of the argument, John?

You might not appreciate the significance of this element of the assessment made of RP’s mental capacity:

She has an ability to repeat verbal material which is in advance of her ability to comprehend or make use of this information. This can give a misleading impression, especially as she is unlikely to say when she has not understood something.

But I sure as hell do – this woman is extremely vulnerable and open to manipulation to the extent that she could quite easily be coached in presenting arguments that, although they may sound plausible on delivery, she simply does not understand.

So, if she were given the chance to present ‘her side of the argument’, who’s argument would she presenting?

Her own, or yours?

How could the court reasonably differentiate between the two?

Hemming presented no evidence whatsoever to challenge the findings of the clinical psychologist in regards to mental capacity of HJ. He merely attacked their professional integrity and bandied around an unsubstantiated allegation of bias.

Why is that do you think?

The most plausible explanation is the obvious one – because any assessment of RP’s mental capacity would produce the same outcome, a series of score in bottom two percentiles of the WAIS-3 scale and an effective IQ of between 55 and 70.

There are two other aspects of this whole farrago that deserve greater attention:

First, as the judgment notes on these separate occasions, Hemming displays what amounts to a total disregard for the privacy of RP, naming her in full, initially, by means of a parliamentary petition, which conveniently brings that breach of privacy under the aegis of parliamentary privilege and subsequently naming on two further occasions in a ‘campaign report’ and on his personal blog – I suspect that in the latter cases Hemming would claim that having named RP in parliament, he was then justified in naming her again even in the absence of parliamentary privilege because his petition had already put her identity into the public domain. By and large, I am a supporter of parliamentary privilege, which has its important and valuable uses, but on this occasion my view is that this is privilege that seriously abused to the point of bringing into disrepute.

Second, it is worth noting that Hemming’s motivation in pursuing his ‘campaign’ against the family courts is by no means a matter of pure altruism.

John had his own ‘altercation’ with Birmingham’s Social Services department after they interviewed his, then, pregnant mistress, after she had reported disclosed during a ante-natal consultation with a GP that she’d failed to register a stillbirth at the age of 17.

The legal action that Hemming threatened at the time, subsequently failed to materialise, although within a month of this story he formed a campaign group called ‘Justice for Families‘ and set about inserting himself into just about any related issue going – investigative journalist Jonathan Gornall provides a useful timeline of some of Hemming’s main activities here, in addition to questioning the value of his campaign in a CiF article from last August. Its also well worth reading the comments on that piece for a number of interesting exchanges between Hemming and Gornall and even an intervention from Hemming’s wife, which entirely fails (btw) to address any of the substantive points made by Gornall in either the article or in comments but which makes this, frankly staggering, statement in Hemming’s defence:

8. John is a campaigning politican (sic). As the media mainly responds to sensationalism and platform how else would you suggest a back bench liberal democrat maintains his profile?

How else indeed, if not by questioning the professionalism and integrity of the family courts and the child protection system without any shred of evidence to support many of your allegations… ???

Casting around for reportage covering Hemming’s short-lived spat with Birmingham social services also turned up a somewhat interesting little bit of sharp practice by… who else but the Daily Mail.

The Mail has run several articles backing up Hemming’s campaign activities since last year but, interestingly, there is one article relating to Hemming that is did run, back in 2005, that is now curiously absent from the Mail’s site – this one…

Millionaire MP John Hemming revealed last night how social workers had threatened to place his newborn baby daughter Isabel on an at-risk register.

The father of four is furious at their behaviour during an investigation into why Isabel’s mother, 30 year old Emily Cox, had not registered the death of a stillborn baby when she was a teenager.

Mr Hemming 45, said the officials even tried to question his mistress Miss Cox as she went into labour in hospital last week. “It was harassment. They are acting like the Gestapo”, he said. The social workers later recommended that the infant should be placed on the child protection register but it is understood that this has been withdrawn.

The Mail on Sunday can also reveal today that the Birmingham MP skipped last week’s knife-edge Commons vote on ID cards after being given “paternity leave” so he could be at the birth of his love child.

Which, not uncoincidentally, happens to be the same article that discloses the reason why Social Services took an interest in Hemming’s mistress.

Now its possible that Hemming threatened to sue the Mail to get the article pulled, or it may be the Mail has decided, having now taken to backing some of Hemming’s activities, that this is little background detail that it would prefer not to trouble its readers with – either way it raises further questions about the manner in which he is conducting his campaign.

And with that, I’ve said enough and will happily give the last word to Lord Justice Wall:

As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.