UK Family Law Reform

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A victory for common sense

A judge was prepared to listen to arguments, but the battle over secret courts is not over

Last week, 702 lawyers, including 38 QCs, signed a letter calling on the Government to drop its Justice and Security Bill, allowing judges to sit in secret on cases involving national security. According to the lawyers, allowing judges to hold their hearings behind closed doors would be “dangerous”, “contrary to the rule of law”, would “erode the core principles of our civil justice system” and would “fatally undermine” the right to a fair trial and open justice. What the lawyers did not say, however, was that we already have a devastating confirmation of all these points in the workings of our family courts, in too many of those tens of thousands of cases every year involving the removal of children from their parents by council social workers.

In reporting on many such cases, I have found nothing more shocking about the shadowy underworld of our family courts than to discover, precisely because they are allowed to hide themselves away behind a wall of secrecy, how easily the most basic principles of British justice can be turned upside down. Responsible parents can find themselves being treated like criminals, assumed to be guilty without having the chance to prove their innocence. Judges are too often happy to accept the controversial opinions of supposed “experts”, that cannot be challenged; or to take on trust highly dubious hearsay evidence which is not put to any of the tests required in a criminal court.

Faced with an array of lawyers on the other side, parents too often feel that the entire system is horribly rigged against them – and none of this can be directly reported, except at risk of the draconian penalties that, at a judge’s whim, can be imposed for contempt of court.

Last Wednesday I sat in the High Court listening to Gavin Millar QC, an eminent specialist in this field, asking a judge to lift an order he imposed on me in December that would have forbidden me ever to refer again to a case I have commented on here several times. So strict was this order imposed by Mr Justice Mostyn at the behest of Sutton council, the local authority, that I could have been sent to prison for even the slightest mention of the case. So far-reaching was the judgment accompanying his order that it would have extended the secrecy rules governing such cases far beyond even the strict limits that the law currently allows, making it virtually impossible for newspapers to report critically on child-protection proceedings at all.

Although everything I have written about this case, for instance, was careful to observe the existing law, as by never identifying any of the parties by name, it was argued that even the bare facts I was able to give about this disturbing story would have enabled anyone slightly acquainted with a member of the family to know at once who I was writing about. This in itself was not just implausible, but would undermine even the rule of anonymity which customarily governs the reporting of such cases.

For an hour and a half, Mr Millar argued, with a parade of legal precedents, how the order was in breach of several articles of the Human Rights Act. So masterly was his presentation of relevant case law that he increasingly won Mostyn’s attention and respect, to the point where it was finally agreed that, on the basis of my commitment that I would report on the case “accurately”, the order could be lifted. In making the order, the judge had accepted Sutton’s claim that my reports on the case had been “totally inaccurate”. But since this had been merely asserted without the support of any evidence, we had not needed to challenge it, even though we would have been very ready to do so.

As a victory for common sense and the rule of law, the lifting of this order is of much wider significance than just my own case. An argument commonly levelled against my comments on such cases has been that I only listen to “one side of the story”. But, as I have noted before, I always try to understand both sides of such stories, with no help whatever from the local authorities, who not only invariably refuse to answer my questions, but also have several times sought injunctions forbidding me from making any mention of a case.

This was the first occasion on which a judge was persuaded to agree to such an order, and the fact that he was prepared to listen to the arguments and to lift it was a salutary victory for the freedom of the press.

This was certainly welcome as far as it went. But the battle to lift the veils of secrecy that shroud the “secret courts” we already have is very far from over, and behind those veils far too many cruel abuses of justice will continue to flourish unreported. At least, however, thanks to the forensic skills of Mr Millar, Wednesday was a good day for British justice.

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