Gagged Dad (A v Cornwall) judgment

On and off, Gagged Dad and I have blogged on this website about his court case against Cornwall Council, and the facts behind it, for almost four years now. Judgment was at last handed down on 28th April 2017.

The blog posts that tell Gagged Dad’s story-so-far, are all together in one place now.  The title of the earliest of those posts in the entire series, which first broke the news story, before it turned into a court case, and which told it simply, and (the High Court has confirmed) truthfully, as near as dammit, was

Two year-old’s contact stopped with ‘homophobic’ dad

So, it wasn’t a made-up story after all.  That headline truthfully relates more-or-less exactly what the judge found had really happened!  So far, so good.

Please judge for yourself whether the courts have delivered justice, when you have read more.

First, a quick recap on the facts of the matter

1. Gagged Dad first realised that he might need to take legal action on 23rd May 2013, when it was confirmed to him, at a meeting, that a certain social worker had decided not to promote contact between Gagged Dad and his son, even though the police had decided that there was insufficient evidence to charge Gagged Dad with any offence.
2. When the police first interviewed Gagged Dad under caution, in connection with a child-smacking allegation, Gagged Dad is almost sure he had told the police what he is absolutely sure he knew, that he had already been warned of what was about to happen, by a certain church children’s worker, two days before the alleged child-smacking offence was alleged to have been committed.  The church’s children’s worker had warned Gagged Dad to expect the mother to make an allegation of child-smacking of their illegitimate son.
3. When interviewed under caution, Gagged Dad showed the police a bus ticket proving an alibi that anybody could see ought promptly to have eliminated Gagged Dad completely from the police’s enquiries, as a suspect of the alleged child-smacking offence.
4. The social worker said, at the meeting, that she believed what the toddler, Gagged Dad’s son, had said to her, “spontaneously”: “Daddy smack.  In Daddy’s flat.” Dramatised with self-flagellation gestures, t’was said.
5. Gagged Dad says – and the trial bundle documentary evidence certainly seems to confirm this beyond a shadow of a doubt – that Gagged Dad had already put in writing, when he referred his own son to Social Services on 3rd April 2013, that he suspected that his son might have been coached into making a false child-smacking allegation, as the church children’s worker had predicted.
6. The social worker admitted that her belief that Gagged Dad really had smacked his son, which he denied, wasn’t an “insurmountable” obstacle to the council promoting contact.
7. Nevertheless, the social worker questioned Gagged Dad about his attitudes towards abortion and homosexuality, during her her first and only interview of Gagged Dad.
8. The social worker discovered that Gagged Dad was not minded to “negotiate” or to “compromise” (as his lordship put it), with a social worker, who was questioning him about his strongly-held moral beliefs.
9. Upon discovering that Gagged Dad hated abortion and homosexuality too much to “negotiate” or to “compromise” about either, during her interrogation of Gagged Dad, about his attitudes/moral beliefs, the social worker decided not to reverse her decision (as his lordship has hinted in his judgment she might have been willing to do, had Gagged Dad’s beliefs not been so strong, had they been negotiable and susceptible to compromise.)
10. Things might have turned out differently, it has been said, if only Gagged Dad hadn’t refused to explain something to the social worker that the social worker’s own notes miraculously explained, more or less exactly as Gagged Dad testified that he had explained it to the social worker, the social worker attributing this explanation, in her notes, to Gagged Dad.  So it was all Gagged Dad’s own fault that the social worker made the wrong decision, ’twas insinuated.
11. The decision that wasn’t reversed, was a decision to procure that there should be NO FURTHER CONTACT between Gagged Dad and his son, most likely for the rest of the latter’s childhood. Gagged Dad impugned, in his pleadings,  that decision, and the subsequent decision not to revisit that decision. 
12. It wasn’t until February 2014, that the county court made a decision similar to the one the social worker had made before the meeting, and didn’t reverse after the meeting, because she was dissatisfied with Gagged Dad’s answers, after she had inquired into his attitudes about abortion and homosexuality.  The county court made the sort of decision it was advised to make, by the a social worker, and a psychologist who had only appeared on the scene in December 2013.

HHJ Cotter

The full story

The last news about Gagged Dad’s legal action that was posted here before today, was that Gagged Dad was seeking permission to appeal the ruling of HHJ Cotter that the trial had to be held in private. He did not obtain that permission.

However, at the beginning of the three day trial of his claim in March this year, the trial judge, Dingemans J, decided to hold the hearing in public after all, with a few exceptions when the court went into private session temporarily to hear particular evidence.

I was allowed to be present throughout the trial, even the bits held in private.  (I have done a lot of the work on Gagged Dad’s case, you see.)

Some of the witnesses watched some parts of the other evidence.  But the general public did not attend the trial, because nobody knew they could.  That was because of the last-minute timing of his lordship Dingemans J’s reversal of the earlier decision of HHJ Cotter in favour of a private hearing.  It was therefore not helpful that the hearing was technically in public, most of the time.  The trial might as well have been in private.

The final order made makes it unwise even now for me to reveal the identity of Gagged Dad.  However, Gagged Dad is content with this.  I am content with it too.

Unfortunately, or perhaps fortunately (we are in two minds about it), his lordship Dingemans J has, indirectly and inadvertently, given away Gagged Dad’s identity himself, to anybody who reads the published judgment, and knows how to do web searches.  So, the cat is out of the bag.

The judgment in Gagged Dad’s case was handed down on 28th April 2017.

There is an independent report about the case on the UK Law & Religion blog, on which I have posted a comment of clarification.

Mr Justice Dingemans

The trial judge, who is variously known as Dingemans J, or Mr Justice Dingemans, or Sir James Dingemans, found to be true, the main facts that Gagged Dad had pleaded, which Gagged Dad had believed were all he needed to prove in order to establish a breach of his Convention rights.

By and large, the judgment therefore confirms that the facts are as they have been reported to you on this blog all along.

That has come as a relief to Gagged Dad and to me.

However, there is a court order in place effectively prohibiting the publication of the proof that Gagged Dad and I have reported this case honestly.  Nobody is allowed to publish the statements of case.  So, anybody on the internet can still call me a liar with impunity, if they’d like to, because I’d go to jail if I confronted my false accuser publicly with the evidence needed to clear my name.  Lovely, isn’t it?  Makes one proud to be British, almost.

________

The judge didn’t find that Cornwall Council had breached Gagged Dad’s Convention rights as we had hoped. You can read the judgment for yourself, but I’ll try to explain here briefly what his lordship’s stated reasons seem to me to be, for not giving judgment to Gagged Dad.

The judge’s reasoning

The judge criticised the council in his judgment.  Inquiries were made into Gagged Dad’s beliefs about abortion and homosexuality, in order to inform (or retrospectively to justify) a decision as to how to treat Gagged Dad.  But these did not amount to unlawful discrimination against Gagged Dad on the grounds of his beliefs.  That was because the social worker only wanted to test how strongly Gagged Dad held his beliefs.  Was he able and willing to “negotiate” and “compromise”, about his beliefs?  She was not concerned with what Gagged Dad’s beliefs actually were, she said.  Only how strong they were.  The judge didn’t think that that was unlawful discrimination.

The judge agreed with Gagged Dad that the social worker’s procedure lacked “fairness”. But he did not consider that this lack of fairness amounted to a breach of Gagged Dad’s Convention rights.  He didn’t really explain why not – at least not in a way that I can understand, or which Gagged Dad understands.  Perhaps a reader can explain that to me.

In his skeleton argument for the trial and closing submissions, Gagged Dad invited the judge to make a finding of mixed fact and law as to whether the social worker’s procedure had complied with the Public Sector Equality Duty.  This is a duty which requires councils, in the exercise of all their functions, including social work (Gagged Dad pleaded and argued), to have “due regard to the need to foster good relations between” men and women.  Amongst other things, that is.

The social worker had admitted in her evidence that she had not had any regard at all to the need to foster good relations between the two adults who were father and the mother of S.  That was pretty obvious anyway.  Gagged Dad thought he was bound to win in the light of this admission.

His lordship seems not to have noticed the bit about the Public Sector Equality Duty in Gagged Dad’s skeleton argument.  He therefore skirted over the whole issue of the Public Sector Equality Duty in his judgment.  (That’s my opinion, anyway.  You judge for yourself, from what you can read here, and by clicking on the links.)  It was as though his lordship thought that the Public Sector Equality Duty was of no relevance at all to the lawfulness or otherwise of the social work he had criticised.

The Royal Courts of Justice

Will there be an appeal?

Today, whilst I was at home in Launceston, Gagged Dad made an application to the Court of Appeal at the Royal Courts of Justice, in London, for permission to appeal his lordship Dingeman J’s judgment and order.  He doesn’t have a right of appeal.  He has to get permission to appeal.  We are waiting to hear whether he gets that permission.

I hurriedly drafted his grounds of appeal for him yesterday, and a very rough and ready skeleton argument for the appeal.  (It isn’t a pretty sight.)

This case, unless an appeal to the CA or the Supreme Court succeeds, or an application to the European Court of Human Rights, should come to be regarded as a missed golden opportunity, to improve the behaviour of social workers, not by changing the law that governs their activities, but merely by enforcing the existing law properly.

Specifically, the three laws which Gagged Dad pleaded that the council broke, were

• Natural Justice (because the social work wasn’t conducted fairly),
• The Public Sector Equality Duty (because unfair social work causes friction between men and women), and
• Article 14 (because of unlawful discrimination against Gagged Dad on the grounds of his beliefs)

His lordship Dingemans found the apparent discrimination against Gagged Dad because of his beliefs not to be unlawful. That was because (he directed himself) discrimination on the grounds of belief only meant discrimination because of what the victim of the discrimination believes.  It doesn’t also include discrimination because of how strong the victim’s beliefs are.  That is all that had happened in this case.

A strong believer is likely to be unable or unwilling to “negotiate” or to “compromise” about his beliefs.  He is therefore likely to be a bad parent.  That is because children need parents without strong beliefs, parents who are willing and able to “negotiate” and “compromise”, about anything they believe   Even about evils as grave as abortion and homosexuality were traditionally thought to have been.  Even if the parents themselves are old-fashioned.

Abortion and homosexuality used to be referred to respectively as “the worst crime” and “the crime against nature”, respectively.  Gagged Dad still thinks of these sins in those terms.

So, his lordship decided that although social workers are not allowed to treat parents differently merely because they have wrong beliefs, they are allowed to treat parents differently when they have strong beliefs.

I do not see how Gagged Dad could have slept peacefully if he had allowed this new legal doctrine to go unchallenged.  That is why I spent yesterday drafting grounds of appeal and skeleton argument for Gagged Dad’s appeal, and Gagged Dad applied today to the Court of Appeal for its permission to make the appeal I’d drafted for him, pro bono.

So, what went wrong?

On paper, the prospects had looked very promising when Dingemans J was listed to hear A v Cornwall.  That is because he was the barrister of Mr and Mrs Bull, who ran a guest house in Marazion, another case about you-know-what.  We expected him to want to be sympathetic, if the law allowed him to be.

Perhaps if Gagged Dad had not been forced to represent himself (or to let me represent him to the extent that this was allowed), then Sir James Dingemans might have been able to see the far reaching issues at stake more clearly.  The doctrines that Dingemans J applied – and I’ve no idea if he just made them up on the spot, or if he was following a legal precedent, because his judgment isn’t that sort of judgment – are risky.  They effectively exempt social work from Natural Justice and from the Public Sector Equality Duty.  They exclude people with strong beliefs, people unable or unwilling to negotiate or compromise about their beliefs, from the general Article 14 prohibition against discrimination.

Judge Mental a.k.a. JohnAllman.UK

One thought expressed by Gagged Dad sticks in my mind.  “I am not on trial here.  The social worker is not on trial.  Cornwall is not on trial.  His lordship is on trial, and the queen’s justice, before the judge of all the earth.”

Gagged Dad is right.  What it had been reported on this blog happened to Gagged Dad, is near enough what it has at last been officially confirmed happened, in the judgment of Dingemans J.  If, in the eyes of the law in this country, what happened doesn’t add up to wrong-doing towards Gagged Dad on the part of Cornwall Council, then the UK has a problem, with God.

The political issues arising

The general election, and Sidney Cordle’s encouragement of me to stand for Parliament again, this time for the CPA, have come at a good time to harvest from this case law the three political issues it raises.

1)    New legislation may be needed to prevent more cases like this

If Mr Justice Dingemans’ risky doctrines really are the state of the law these days, then legislation is needed, to protect strong believers, in anything, from discrimination.

Plus legislation to require social work to be fair.

Plus legislation forbidding social work from being done in such a manner that it tends to cause or to intensify antagonism between the two sexes, in society at large and in the individual problem families that need social work input.  In other words, legislation is needed, to bring social work under the authority of the Public Sector Equality Duty, because, when push came to shove, Gagged Dad’s attempt to establish that social work had to comply with the Public Sector Equality Duty in order to be lawful, fell on deaf ears.

2)    Responsible use of Council Tax payers money

We who are  Council Tax payers of Cornwall should definitely be asking our councillors how much of our money they wasted upon defending the indefensible, in A v Cornwall.  And for what?  The court process could have been short-circuited, by staying the claim and deploying the complaints procedure as a method of Alternative Dispute Resolution, which Cornwall had refused to do.  That is what Gagged Dad proposed. Cornwall didn’t want to “negotiate” or “compromise” either.  A case of the pot calling the kettle black, if you ask me.

3)    The looming threat to the UK’s membership of the Convention

I spoke at the hustings in 2015 saying that there were “two Europes”.  Dan Rogerson reminded me of that comment of mine only the other day.

One Europe was past its best-before/use-by date.  That was  the European Union (EU), which has the European Court of Justice (ECJ).  I predicted that the UK would be getting out of that Europe soon.  I think some of the newer member states that haven’t abandoned their own currencies, like Poland and Romania, might tend to be amongst the earliest to follow us out of the EU – a first in, last out exodus.

The other Europe was the European Convention on Human Rights (the ECHR, a.k.a. “the Convention” for short).  The ECHR has the European Court of Human Rights (ECtHR), which sits in Strasbourg.  I said that the UK should remain in the Convention at all costs.

Many people, even journalists, don’t understand – or pretend not to understand – the difference between the EU and the ECHR, but it’s vital that voters wise up to this difference.

For dummies: the slogan to memorise is “Convention good, Union bad”.  We’re leaving the Union.  Our continued membership of the Convention is under threat if the Tories get a large overall majority.

If the Court of Appeal refuses Gagged Dad permission to appeal, he’s going to need to apply to the ECtHR, or it would be “game over” for him.  There would be nothing else left for him to do, except to badger MPs and peers for a change in the law of the UK.  Imagine how he’d feel if the Court of Appeal refused him permission to appeal, and (pretend) the UK had already left the Convention.

Tory and UKIP’s recent rhetoric against the Convention (the ECHR) is worrying.

We need the Convention to protect us from home-grown tyranny.  We must rise up in 2017, to defend the ECHR and its court in Strasbourg, just as we rose up in 2016 to free ourselves from the tyranny of what is sometimes referred to, in Yes Minister episodes, as “Brussels”.

The illiberal Tories and others, would like nothing better than to strip us of our human rights.  They think we’ll let them get away with this, because we are confused.  Many of us conflate in our minds the two Europes,  the nice Convention that protects us from them to some extent, and the nasty Union we are making them take us out of, against their wishes.

Look, I voted Leave to get us out of the EU.  But I would vote Remain without hesitation to keep the UK in the Convention.  The British state needs to remain answerable to the European Court of Human Rights (ECtHR).  Leaving the Convention would simply not be civilised.  It would be downright dangerous, if you ask me.  And a terrible example to set to the world.  It would be embarrassing.

We could demand a referendum about the Convention, and then vote Remain if the illiberals were daft enough to let us thwart their plans a second time, by giving us a say, again.  But I doubt they will fall for that.  Once bitten, twice shy.

The first time I stood for Parliament, when I lived in Yorkshire, it said, on the ballot paper, under my name, “Alliance For Change – human rights first”.  I  still stand by what I said then.  Human rights, properly understood, is the big political issue.  It is at the heart of the Second Great Commandment, because “human rights” and “equality” (“your neighbour as yourself”) are linked.  Human rights is a Christian value.

Ditching our treaty obligations in which the UK promises to uphold human rights is the silver lining of the Remainist, old establishment, illiberals’ cloud.  It is the consolation prize that Mrs May and the “strong and stable” (SS) bullies of her personality cult, would love to reap, from their defeat in the referendum about the EU.  Please don’t let her pull that fast one on you.  If you notice her trying that on, then please remember me, and (if you feel grateful then for this warning now), please pray for me and my family, and for Gagged Dad, and his family.

God bless.