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Justice, Windrush and the family court

You obey the rules and you do the right thing but then the system shafts you. Were you naive to expect to be treated fairly? This is Britain, after all. Not Russia, or Turkey, or China, or the US even.

We know the system’s not perfect. Things go wrong and people get hurt, you just think those mistakes are few and far between in this country, compared to most other countries, and that they really are mistakes.

We wouldn’t deliberately make innocent people’s lives hell, would we? Not in Britain. We’re not like that.

Or, when we’re done with making their lives hell, we expect them to be grateful. Is that who we are?

Perhaps some of us are, and when that some forms an identifiable and significant voting bloc, or even just a significant part of a significant voting bloc, one whose support is crucial to the governing party, then you should expect some of that some’s views to rub off on public policy. Which they did, and still do.

People demanded a tough line on immigration and that’s what happened. Most of the people making those demands probably weren’t asking for the Windrush scandal, but any clamp down was bound to make something like that more likely. 

According to the Williams report, “when successive governments wanted to demonstrate that they were being tough on immigration by tightening immigration control and passing laws creating, and then expanding the hostile environment, this was done with a complete disregard for the Windrush generation.”

Go home of face arrest, photo by Ian Burt

It’s not unusual for policies, which may be popular and which may be well meaning, to result in highly devastating effects on people’s lives when put into practice. Something being policy can free those implementing it from having to consider the effects of their actions. We’re just following policy, they tell you. They may even sympathise with you personally, but they have to follow policy. They have no choice. 

Having your child taken away from you is bound to be devastating, and it’s been something a lot of people have been going through during this coronavirus period. Many parents, wanting to cut off their exes, have used this lockdown as an opportunity to deny their co-parents contact with their child. In some cases the courts are allowing this to happen.

It’s usually the mother who the child lives with most of the time, so there are many fathers now who haven’t seen their children for a while. When it happens to you, and you trust the system to do the right thing, it’s quite a shock when it doesn’t.

That bit in the Windrush film when they release him from the detention centre and the guy at the desk expects him to be grateful or something, that’s how it’ll be. You’ll eventually get to see your child, and you’ll be expected to show gratitude to the people who took your child away from you. You know that’s how it’ll be, and it’ll be horrible. But you’ll have to go along with it. That’ll be the most horrible part of it, having to go along with it.

At least that’s the best possible outcome. Another possible outcome is that you won’t see your child again.

The other bit in the film that really got to me was when he talked about how he felt that Britain didn’t want him, it didn’t value him, and in part at least, it was because he was black. If a mother and social services and the court decide it’s ok to keep a father from seeing his son for several months it’s like you’re being told you don’t matter.

That’s not a nice feeling. When you’ve poured your heart and soul into being a good father, and always being there for your son, to then be told the best thing for him is for him not to see his father for half a year.

There are some abusive fathers though, so they say they have to be cautious and the safety of the child is paramount so if there’s an accusation against the father, contact must be denied until they can figure out whether or not the accusation is true. When they find that it isn’t, that’s when you get to see your child and that’s when you’re expected to be grateful.

A recent study found that most accusations of abuse in family courts were judged to be false. About 70%. 

often the allegations had been deliberately contrived as a strategy for having contact terminated. In terms of the effectiveness of that strategy, it was often a highly successful one.

If the wellbeing of the child is your primary concern, you should only consider taking the child away from their father when the allegations are serious and credible. It should be a last resort. Currently, it’s allowed quite readily, which implies it’s not seen as being particularly harmful to the child, and if it’s harmful to the parent, well, that’s not our primary concern and if you start complaining about how it’s not fair on you we’ll only take that to mean you’re not “child focused” enough.

When you put someone in detention or take away their child, you have to weigh up the pain caused to the accused, the possibility of them not being guilty and the risks posed if they are. If someone’s an illegal immigrant, then if you don’t detain them but instead give them bail and they jump bail, the risk is that they remain in the country illegally, which doesn’t seem so terrible a crime. If there are a lot of illegal immigrants then that can be a drain on the country’s resources, but it’s not a malicious crime. Illegal immigrants probably aren’t, for the most part, bad people.

It’s hard to tell how seriously illegal immigration is taken from the sentence since it’s mostly the same: deportation. With other crimes, you can compare how many months or years one person got for one crime with how long someone else got for a different crime, and if a government wants to show they’re getting tough with a particular type of crime they can just up the minimum sentence. But with immigration they can’t do that so they have to get tough on enforcement if they want to look tough.

If someone was dangerous, then you could justify detaining them, but a grandfather with a family, a steady job and friends who’s been in the country 50 years and isn’t going anywhere and isn’t going to hurt anyone? There should never be people like that getting detained.

Balancing risks

With the coronavirus we’ve had to learn all about balancing risks. Whilst keeping children off school may reduce their risk of getting covid, you’re risking their education and harming their wellbeing, and the risk of them dying if they get covid is extremely low. So putting the children first might lead you to open schools, though you also need to consider the risk to teachers and to those few children who are in high risk groups.

Balancing risks is rarely easy.

When it comes to social services and the family courts, you need to weigh the risk to the child of letting them be with a potentially abusive father against what that child loses by being denied time with their father. If you don’t think fathers are that important, if you just think they’re glorified babysitters, then there’s no great harm done by keeping their children away from them. Better safe than sorry.

But if you think fathers are more than mere babysitters and are in fact just as important as mothers, then you’re going to see that taking a child away from their father is a harmful act and therefore one that requires considerable justification. Though, if you’re the one charged with making that decision, you’re inevitably going to consider the risks to yourself, to your job and your reputation. If you rule that a child should have contact with their father and that child is then subject to abuse, you know you’ll get the blame. You’ll be asked why you made that decision in the face of all the serious allegations against the father. Or, if you fail to detain someone suspected of illegal immigration and that person then absconds, you will have to explain why you didn’t detain them.

Once something has happened, it can start to look inevitable. It was always going to happen. The signs were clear.

Innocent until proven guilty

Jamaican high commissioner to London, Seth George Ramocan, speaking of the Windrush scandal in 2018, said:

In this system one is guilty before proven innocent rather than the other way around.

The presumption of innocence is a long standing principle, dating back to Roman law and the Talmud and enshrined in the UN’s Universal Declaration of Human Rights (article 11):

Everyone accused of a crime has the right to be considered innocent until they have fairly been proven to be guilty.

This does not apply to family courts though, where the burden of proof is lower, based on the balance or probability rather than beyond a reasonable doubt, and where the risk to the child is what matters. As a result, someone could be found innocent in a criminal court whilst being found guilty of the same crime in a family court.

A decision to detain someone does not require that they be proven guilty, though, according to Home Office guidance, “there must be a properly evidenced and fully justified explanation of the reasoning behind the decision to detain placed on file in all detention cases”. A detention can of course be a punishment though. It can result in you losing your job, it can harm or destroy your relationships and your reputation.

Fathers’ rights groups have argued that denying contact between a father and child, even temporarily whilst allegations are investigated, can be a form of punishment for both father and child, having a detrimental impact on both.


Some of this just comes down to incompetence. In the Windrush film you see officials blindly following rules rather than using their own judgement.

We need to understand the limits of rules: generalised judgements applied to the intricacies of individual cases. Those drawing up the rules may, drawing from their own experience, think it quite reasonable to expect someone to be able to provide documentary evidence of their time in this country, and in the majority of cases people may be able to do that without too much difficulty. But some won’t. Justice needs to apply to minorities as well as to majorities.

Back to Sitting In Limbo, if someone had just spoken to the people involved, and listened to them, allowed them to tell their stories, they would have seen the miscarriage of justice as clearly as those of us who watched the film. Why didn’t that happen?

But when you allow individual officials to make these decisions, rather than blindly applying the rules, then there’s the possibility of individual bias. Lady Justice is supposed to be blind.

Like so many things, you need to strike a balance. For the most part, justice needs to be based on laws that apply equally to everyone, but the officials applying the law need to be able to flag up cases where the law is clearly failing, like being able to say obviously this guy shouldn’t be detained. You need a culture that accepts that any rule applied to a highly diverse set of circumstances is going to have a failure rate that is above zero. Any functional system needs to be able to cope with the failings of its component parts.

That’s why we need appeal courts, but appeal courts alone are not enough. The recognition of fallibility needs to be baked into the system, and the system needs to be clear and transparent. In her Windrush Review, Wendy Williams says

The department has a responsibility to make any application process as straightforward as possible and give people clear instructions and help. This responsibility is even greater where the legislative picture is complex 

This could apply to any system people have to navigate. In the legal system, with fewer people entitled to legal aid and so more having to represent themselves, it’s crucial that the system is understandable and that people are able to represent themselves effectively within it.