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SEWELL Martun

Martin Sewell is a family solicitor.

The Government re-shuffle coverage and reaction has crowded out one major problem facing the Home Secretary. There is an Elizabeth Butler-Sloss shaped hole in the Public Inquiry into possibility of child abuse cover-ups at the heart of Government in the 1980’s.

For all the enthusiasm for her dismissal amongst those determined that there shall be a scandal, there was insufficient appreciation of the very special forensic skills and experience which Dame Elizabeth brought to the role. It will be a very hard to replicate those virtues.

The Inquiry will have to be wide ranging and necessarily long. Not everyone in the  small pool of the competent will be willing or able to take up the burden It will need to be alert to the possibility that the problem will be multi-layered. We are therefore necessarily looking at those with experience of complex analysis, one who will explore every possibility.

At the end of the Inquiry, there might be a conclusion of some grand all-encompassing conspiracy worthy of a Dan Brown novel, but the greater likelihood is that the truth will be much more patchy; there may be unrelated people and factors at work, and there will be much from those different times which is just dull, with a variety of contributory factors including poor record keeping, inadequate policy on file destruction, and naivety.

It must also be remembered that paedophiles have always been highly plausible, engaging and manipulative, and not everyone who was taken in will have been personally aware of how they were being used. Many in the story are of course dead. Not blaming them without proper evidence is important.

One of the primary virtues of Dame Elizabeth was the fact that she lived through the times when the legal world began to wake up to the true nature of child abuse. There was a time when eminent psychiatrists would happily tell the Court that “all children lie”, that little girls fantasised about sleeping with their fathers or that the nation was awash with cells of satanic abusers and that they were uniquely skilled at detecting the signs.

If you were part of that world, as I was, you appreciate how much Dame Elizabeth contributed to our present approach. She was the major player in the transition between how we used to look at child abuse, and how we do now.

Not only did she coin the touchstone approach of neither expressing belief not disbelief, but “Always listen to the child and take what the child said seriously”, she also debunked the social workers who took anger in a parent, upon accusation, as a signifier of guilt. She was compassionate enough to point out that those accused were at enhanced risk of suicide and needed care also.

Whoever undertakes the investigation will need to understand a different cultural mindset. If he or she is not alert to that, it will be difficult to differentiate the culpable from those who simpye had yet to learn the lessons.  Not everyone who found it hard to believe was guilty of cover-up. To offer an example from a different era, the early reports of Nazi concentration camps were initially discounted as so horrific as to be incredible. We shall find similar problems as we look back into how we handled allegations then. Whoever looks at this story as the evidence unfolds will need to have that capacity for historically adjusted perspective.

On the Today programme, the merits of Dame Elizabeth were defended by Sir Matthew Thorpe QC, a retired Appeal Court Judge  As he presented his arguments in a proportionate, measured way I was minded to add him as a late addition to the list of potential replacements that I was then compiling. At 76, he is of an older generation which might not appeal to the superficial; but he would bring not only a lengthy experience of the subject and a high intellect, but a similarly sound history of knowing how our understanding developed.

When he retired Lord Judge, the Lord Chief Justice, said of him:

“We are … losing an outstanding judge whose focus in these delicate and sensitive cases has been to ensure that ground and feet have been well co-ordinated and adjacent, and that, to the greatest possible extent, the resolution of these anxious cases should be practical and swift, and, so far as possible in a fallible human system, right.”

That seems a sound enough recommendation to add him to the list if others are unwilling.

My first thought for the Inquiry was Dame Heather Hallett QC. Her work on the 7/7 Bombing Inquiry demonstrated a first rate handling of complex material, although let us not be deceived. The Inquiry in prospect will be much more fraught and problematic.  Her expertise at the bar was in the Criminal Law which will certainly have given her sound experience of the problems of abuse if not quite the same perspective for the victims that a Family Law Judge will have acquired.

I had not initially appreciated that she has only just finished the Inquiry into the sending of the “On the run letters” to the IRA.  That report has just been published, and we shall have to see how many enemies that makes her. She was plainly trusted to work in an area in which “cover-up” was widely suspected – whether evidenced or not – and her credibility may not be helped by so recently having had such a potentially contentious brief to manage. She was nominated by Woman’s Hour as the eighth most influential woman in the country.  If a woman is preferred as a Chair of the Inquiry, she comes with a degree of early goodwill.

A grammar school girl and the daughter of an Assistant Chief Constable, she rose to become the first female Chair of the Bar Council, but is not so obviously “Establishment” as Dame Elizabeth, and she is of a younger generation, untainted by the attitudes of the  era into which she will be inquiring.

Sir Ernest Ryder QC earned his spurs during the Waterhouse Inquiry into child abuse in the North Wales Care Homes. The Inquiry lasted three years, and one of its important aspects was its early embracing of modern computer technology to track and annotate the evidence; the management of complex data will be a major part of the wide ranging Inquiry in prospect; Sir Ernest knows how this is done.

That Inquiry dealt with 140 allegations over 18 Care Homes and spanned the years 1963 to 1992. Though not of the era, Sir Ernest will have learned much of its character through listening as part of the team to the 200 witnesses who came forward with their historic recollection. There may be some similarities between what happened in North Wales and London, and a prior understanding of how things worked – and went wrong – would be an advantage to the Judge appointed.

Another Grammar School product, his professional life was on the Northern Circuit and so he is no part of the London scene which is doubtless likely to be part of the suspicion about what has happened.

My wild card has not had involvement with such Inquiries before, yet Appeal Judge Andrew MacFarlane QC has much to commend him.  Alongside the late David Hershman QC, he is the founder/author of Hershman & McFarlane, the definitive work on Child Law in this country. He will accordingly be well versed in dealing with big data and co-ordinating a team.

More importantly, he would bring a vast experience of the historical development of understanding of these matters having had close involvement in following the case law and associated reports, experts, discussion papers etc. He is a known advocate of greater transparency in the Courts which would go some way to reassuring those who suspect the Inquiry from the start.

As a Family Court judge he would have had to deal with many victims of abuse and having appeared before him with children, I have to bring into account that he has a very sensitive and reassuring manner, which is by no means a sentimental consideration in this matter. Victims will find giving evidence a very difficult process;  they must both give their testimony and have it tested. A judge who appears human and interested is essential, and one might struggle to find many with intellect and human warmth in equal measure. Sir Andrew scores very highly on that balance.

Another “outsider”, he is a graduate of the University of Durham and began his professional life in Birmingham Chambers, and has maintained associations with the Midland Circuit. No Privy Councillor is not a member of the “Establishment” but he is more “normal” than most who are qualified for this complex and debilitating task.

Whoever is chosen to handle this poisoned chalice will need the wisdom of Solomon and the patience of Job. The queue of competent volunteers will not be long.

25 comments for: Who should replace Elizabeth Butler-Sloss? Here are four possible candidates.

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