Parents Champion

The Barrister Andrew Scott is drawing plaudits for clearing the name of parents who have been accused of harming their children. The secret of his success? Twelve years experience a a nurse.
February 11th 2006
Andrew Scott has spent the morning at the Royal Courts of Justice. In front of two judges, he has been arguing that a couple whose children have been put up for adoption should be allowed to appeal. Knowing how much it means to them, he has hardly slept all weekend. It is more than a year since the children were taken, on the grounds that the mother is too slow-witted to care for them. One piece of evidence against her is that she took too long to brush her teeth when a child needed attention. Another is that when her toddler fell over, she did not pick her up. At the time, she says, it didn't seem necessary. Although it is lunchtime and the parents and their lawyers are sitting in a cafe, Scott is not eating. He failed in his efforts and his attention is entirely focused on the dignified but bereft parents. Despite being a large man with a bullet head, his manner is exceptionally gentle. 'You must take care of each other,' he says, giving the mother a hug. 'We will keep fighting.'

As the couple leaves the cafe for their home - a place of unused toys and photographs of absent children - Scott looks despairing. There seems no way to overturn the judgment. An appeal will only be granted if there is new evidence,' he says. 'Judges won't want to look again at the original evidence, even if it is flawed. It's the same in all these cases: the legal system likes finality, a settled view of the facts.'

Their solicitor, Bill Bache, reassures Scott that the failure is not his fault, but he doesn't accept it, 'I always think, "Was I eloquent enough? Were my tactics right?"' Although he speaks as if used to defeat, that is not so. He has been a qualified barrister for just over a year, but already Scott has battled so successfully on behalf of parents accused of harming - or potentially harming - their children that he has gained a reputation as a white knight. 'My greatest victory,' he says, 'was in the case of a mother accused of poisoning her child with epilepsy drugs. [Secrecy rules prevent the individuals being identified.] I was able to show that the child had a defective liver, so that what looked like an overdose was not.'

And his proudest moment? He smiles as he recalls the inquest into the death of three-month-old Toby Woods, whose mother, Donna Hanson, was arrested in January 2000 on suspicion of smothering him, 10 months after his brother had died in similar circumstances. Scott was able to show that, when not in his mother's care, Toby had spontaneously stopped breathing and that these episodes had been observed by nurses who hadn't recorded them and did not mention them in their written statements. Scott insisted on cross-examining the nurses and the crucial details emerged. The jury duly found, in September 2004, that the child had died of natural causes.
As Hanson left the court,' Scott remembers, with a catch in his voice, 'the jury formed a guard of honour. As she walked through, they said how sorry they were. It was a John Grisham moment.'
the rash of cases in which parents have been wrongfully imprisoned or had their children taken from them is one of the great scandals of our time, even though no one knows how many cases pass through the family courts each year (there are no published figures). Unlike criminal courts, family courts are not open to scrutiny and the standard of proof is lower: judgments are made on 'balance of probabilities' rather than having to be 'beyond reasonable doubt'. Strict rules on secrecy prevent parents from discussing their cases or questioning expert opinions, and journalists are not allowed to report proceedings. Best known are the cases of Sally Clark and Angela Cannings. After being imprisoned for murdering their children, their verdicts were overturned in the Court of Appeal when Professor Sir Roy Meadow's evidence

‘You can get a lot from a textbook, but it is no substitute for experience. Barristers often have no medical knowledge, so they believe what doctors say when they should be challenging them’

against them was shown to be statistical rubbish. Prof Meadow's view was that two cot deaths in the same family were suspicious, while three inevitably meant murder. In fact, there is a strong genetic component to Sudden Infant Death Syndrome, making the chances of more than one occurring in the same family about 200 to one, rather than Meadow's estimation of 73 million to one. Yet despite Meadow being struck off the medical register last summer, hundreds (possibly thousands) of families' lives are still being destroyed by a system that requires defendants to prove what is often impossible: their innocence.

Following a review of 88 cases in which parents were imprisoned for shaking their babies to death, the Attorney General, Lord Goldsmith, is expected to announce this month that only four convictions merit reinvestigation

'It's disappointing,' Scott says. 'The individuals concerned will be heartbroken.

Hundreds of families' lives are still being destroyed by a system that requires

defendants to prove their Innocence

‘I expect it is because the Attorney General is only looking at the evidence given at trial. Sally Clark and Angela Cannings were able to overturn their convictions because they brought in new evidence’

Though 37 years old, Scott is not yet one of the well-known names of human-rights law, but he is a late entrant to the bar. A school failure from a council house in Newcastle, a potential Labour Party candidate and a former trade-union official, he is gaining respect because he seems to have the knack of unlocking these cases.

He has the rare advantage among barristers of having worked as a nurse for 12 years. When defending parents who have been branded shakers, poisoners and smotherers of their own babies, he has to work out how else the death could have occurred. His medical knowledge means that he can spot a flaw in a theory that expert witnesses have presented as fact. He can also come up with an alternative explanation. His other asset is his common touch. 'It's just like being a nurse,' he says. 'You often have to break bad news to people. How you do it has a bearing on how well they cope.'

This approach is not just humane, it is important to his success. As Michael Mansfield pointed out to him when Scott acted as his junior on his first case in March 2004 (the case was that of Mark Latta, accused of shaking his 10-week-old baby to death), parents may instinctively know the errors in the prosecution case - but unless they are asked, they may not say.

These qualities all brought Scott to the attention of Bill Bache, the solicitor who handled Angela Cannings's successful appeal, even before he had finished his pupilage at the bar. Since then, Bache - who describes Scott as 'brilliant' - has channelled so many cases his way that the dining-room of his Teesside home is buried under legal papers relating to cases that cover the whole range of allegations commonly made against parents.

It is exhausting work, for the parents are distraught. They know they have done nothing wrong and yet their lives have been ruined. Their surviving children have been taken from them and, in their own 'best interests', been placed with foster parents or put up for adoption. The parents fear not only for themselves, but also for their children, who may be emotionally scarred for life.

Scott is eager to do what he can for them because he is horrified by what goes on. 'I don't think the public appreciates how low the threshold is,' he says. 'When children are taken from their parents, it is not because there is a certainty of future harm or even that, on the balance of probabilities, those children could be harmed.

It is enough that there is the possibility of future harm. If there is a 70 per cent risk of a child being harmed and every child with that risk is taken into care then, in 100 such cases, 30 children will be taken from families where they would come to no harm. Sometimes, I wonder whether it is the children who are being protected or the social workers' careers.

'I have two daughters, aged 12 and 10. They could fall downstairs. All children could come to harm. I leave it to my wife to decide when they should go to the doctor, yet I see parents criticised for not taking children to the doctor when something turns out to be wrong. If, however, they take them to the doctor too often they can be accused I of having Munchausen Syndrome by Proxy, or | Factitious or Induced Illness, as it is now called.

I’ve seen reports saying the child had crisps and a sandwich for lunch and "the parents didn't intervene when the child ate the crisps first”.

My children might not have eaten the sandwich at all. Does that make me incompetent? There seems to be a lack of common sense. The raison d'etre of the 1989 Children Act is that families should be kept together, but the state acts too quickly to remove children. There seems to be a feeling that the child would be better off with a new family. Since Labour came to power, there has been a shift - a concern not just about the physical wellbeing of a child but about better development outcomes when they are adults. There's an unspoken fear that children from poor backgrounds are being freed up for middle-class adopters.'

Scott was born in Skelton, Cleveland, the son of a redundant foundry man who took a degree in politics and history; his mother was a nurse. At school Scott's intellect stood out sufficiently for the deputy head to tell him that he ought to be a barrister, but although he loved watching Crown Court he was more interested in snooker than exams. Instead, he followed his mother into nursing.

It was only when he won a battle with his union he became interested in law. Representing himself, he did such a good job that the union's barrister offered his congratulations and Unison offered to sponsor Scott while he did a part-time law degree at the University of Teesside. It took five years, working as a nurse and studying at weekends and in the evening, but in 2001 he was awarded not only a first-class degree but also three prizes.

His interview to read for the bar at Gray's Inn, however, could have proved unsettling. 'What does your wife do?' he was asked.

'She's a dinner lady,' he replied.

'How charming,' the interviewer remarked.

But Scott is not chippy. 'They wanted to know if I could stand up for myself,' he says, 'so I said: "You haven't got a problem with that, have you?" *
He was then asked about his outside interests, to which he replied that he was a member of the Magic Circle, but would not tell them if he sawed his wife hi half unless defence counsel was present. He was given the top scholarship and when he had finished his studies at Northumbria University, he came top in crime and fifth overall.

Even so, finding a pupillage was hard. Eighty-six sets of chambers rejected him and he was about to give up when he was asked for an interview at Doughty Street, a prestigious radical set dedicated to carrying out the words carved into the stone of the Old Bailey: 'Defend the children of the poor'. Despite arriving 'covered in bird shit and Coca-Cola', he was one of four out of 350 applicants to be offered a place. He spent his gap year as an official with the NASUWT teaching union.

Robin Oppenheim, his first pupil master, is a distinguished medical-negligence specialist. Before Scott's six months with him was up, he got his first break. In March 2004 Gill Evans, a criminal barrister and his second pupil master, asked if he could help with the medical evidence in the trial of Mark Latta. 'Having worked as an aesthetic nurse, I worked out that a laryngeal spasm could have caused the baby to stop breathing. I told the silk who was leading the case - Tony Jennings from Matrix [Cherie Booth's chambers] - about the mode of death and he won the case.'

Above both Donna Hanson and Mark Latta were accused of killing their children; Scott helped clear their names. Below the solicitor Bill Bache handled the appeals of Angela Cannings and Sally Clark, who were convicted on Sir Roy Meadow's discredited evidence

Scott sees himself as the conduit between legal and medical experts. Although many barristers acquire a knowledge of medicine, they are often better at 'talking the talk' than understanding the fundamentals.

'You can get a lot from a textbook,' he says, 'but it is no substitute for experience. Barristers working on medical negligence and child-care cases often have no medical knowledge, so they believe what the doctors say is correct when they should be challenging them. Judges can only base decisions on the evidence put before them.'

Doctors are often viewed as the villains in cases of false allegations against parents. When Prof Meadow was shown to have made a mistake in the case of Sally Clark, it undermined public confidence in the profession. If such an eminent paediatrician could be so wrong, many other parents could have been wrongfully accused on the basis of doctors' over-bold pronouncements. It can appear that doctors are too ready to act as expert witnesses in return for handsome fees, too eager to believe fashionable ideas about wicked parents.

Having worked with hospital doctors for many years, Scott is not so cynical. 'They don't set out to deceive,' he says. 'The role of the medical expert is very difficult to undertake, but there are things that aren't explicable by the science that we know, and experts often fail to tell the court when they speculating, or giving a opinion outside their area of knowledge. My experience in a clinical setting is that they are never sure. They say, "It could be this. It could be that." Yet in court they present a theory as a certainty even though the issue is so important - the irrevocable loss of a child.

'When I was working in a hospital I saw parents being accused of having Munchausen's and I questioned that diagnosis. We have to be sensible. Parents do kill and harm their children. Fact. But I am concerned that those doctors who challenge their peers are seen as mavericks. The hospital is the consultants' domain, but the courtroom is my domain and I can question them.'

Following Angela Cannings's successful appeal two years ago, it looked as if many similar cases would quickly be reviewed and further such cases would be halted. But change is slow in coming.

Each case has to be argued on its own merits, with the lawyers having to find grounds for appeal. Having been involved in a large number of these, Scott can suggest some reforms that might at least make injustices less likely to happen in future. He starts with the law: if barristers lack the specialist knowledge to challenge doctors, he would make sure they were trained.

'After all, nurses now get training in legal matters. Why shouldn't lawyers? Judges should be regularly retrained, too - they already are for rape cases.'

Having seen how social workers' subjective reports can lead to parents losing their children, he would introduce trial by jury in such cases. 'Juries are the best mechanism we have for detecting dishonesty,' he believes.

'I wonder whether its children that are being protected, or social workers' careers'

lan and Angela Gay were imprisoned for force-feeding salt to

their foster child. Scott is working on the couple's appeal

He would also establish specialist regional social-services departments to deal with children at risk, where experienced workers would review such cases and introduce an element of consistency - as it stands, a family's chances of staying together seem to depend on where they live: some local authorities will give them the benefit of the doubt, others (perhaps fearful of Victoria Climbie on their patch) err on the side of caution. He would also pay social workers more: 'The better ones shouldn't have to move into management to get higher pay,' he says. 'And there needs to be a public body to discipline them for the protection of the public.'

Most of all, he would change the way they operate. 'If social workers were brought in to assist families and got to know them, they would be able to assess risk better than if they are expected to take immediate action.

Families need more support: I was a great believer in the welfare state when I was a nurse on £20,000 a year and a trade-union official on £38,000; as a barrister, I earned £89,000 in my first year, doing legal-aid work, and I still believe in the welfare state. I would bring back National Service, not just in the Army but in the police, social services and across the board.'

One day, perhaps, if he becomes an MP (he put himself forward for Mo Mowlam's Redcar constituency in 2001), Scott may effect such changes, but he is in no hurry to leave the law. He loves it with a late starter's passion and is keen to work all hours, often pro bono, to assist victims of injustice. Later this month, he is bringing an appeal for a couple (who cannot be named) who were thought to have poisoned their youngest child.

Two children were adopted; two put in care. Even though Prof Meadow's evidence was pivotal, Scott has had to go to the High Court to fight for them to have their fostered son back. The higher up the legal system you go, the braver the judges,' he hopes.

Soon after, he is involved in the appeals of lan and Angela Gay, a Worcestershire couple imprisoned for force-feeding salt to a child they were planning to adopt. Without wanting to reveal his evidence, Scott is confident that he knows what really caused the child's death.

He has another salt-poisoning case to fight on behalf of a terrified mother, and he is going to the Criminal Cases Review Commission for a father accused of smothering his child. He is also handling an appeal for a father accused of shaking his child to death. As in many cases of sudden infant death, the true cause may be gastro-oesophageal reflux: many children who spit up constantly stop breathing suddenly. After that, he is representing a local authority in a child-protection case: 'It's important to act for the other side, too,' he says.

Each of these cases involves many boxes of documents. 'It's daunting,' he says, 'but I often find that the first piece of paper says it all. The doctors haven't considered an obvious medical possibility.' •

Telegraph Magazine February 11th 2006

by Cassandra Jardine

 

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