UK Family Law Reform

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Family court secrecy is bad for children

by Sarah Harman, Times Law Section

The Times - 1st November 2004

How do parents challenge decisions if there is no public debate

MOST people know that children cases are heard in private and children cannot be identified on the rare occasions that proceedings are reported. They may also be aware that court papers, such as expert reports and statements, cannot be read by anyone outside the court without its permission. A parliamentary committee is considering amendments to the Children Bill which would introduce a degree of openness into family proceedings. But will the amendments go any way towards addressing the increasing criticisms about the secrecy of family courts?

Most people, including a good few lawyers, do not know that legislation passed more than 40 years ago, before the welfare of the child was considered paramount, prohibits the disclosure of any information in family proceedings outside the court without specific permission. But section 12 of the Administration of Justice Act 1960 is breached willy-nilly. Parents talk to their families, their priest, their MP and even the media. They in turn often publish features giving details of children cases but avoid identifying the parties. All such publication and disclosure is technically in contempt.

Problems arise over strongly contested cases. Such a case was that of Re B where a finding was made by a family court that the mother suffered from Munchausen's syndrome by proxy. She disputed the expert's opinion, and as there seemed no chance of an appeal she sought advice from other accused parents, her MP and the press. Kent County Council (the local authority involved) pursued the mother and me, as her solicitor, to the court alleging contempt.

We had also disclosed papers to my sister Harriet Harman, the Solicitor-General, who had announced a review of childcare cases after the Angela Cannings judgment. The mother wanted her case to be part of the review. The papers were in turn passed to the Minister for Children. I was condemned by the judge for my ignorance of the Act and the mother's discussions with her MP were declared to be contempt.

My experiences led me to research the position in other jurisdictions. In Canada and Australia family law is very similar to our own. The family courts there have operated open to the public and media for as long as most people can remember, although there are restrictions on identifying children and the courts can be closed in sensitive cases.

In New Zealand, after extensive consultation, media reporting of cases is to be permitted. In Ireland the courts were opened this year to the extent that legally trained people can report on cases, although access to the public is still not permitted.

How is it that jurisdictions such as Canada and Australia have operated with such a degree of openness and still managed to promote the welfare of the child, and our courts even prohibit the publication of information not relevant to the child's welfare, that is the identity of experts.

Canada, although it has a family law system like ours, has a different culture. What works there might not work here. But Canada is also different from Australia and New Zealand, which in turn are different from Ireland.

The secrecy of the British family courts has often been challenged, mostly by aggrieved parents who want to and are prevented from raising concerns. It fuels the Fathers 4 Justice lobby, which can claim all manner of injustice without effective challenge as we cannot know the details of the campaigners' cases - or rather we should not know.

Cases where a child loses a parent because a judge has been too easily persuaded by a controversial expert, or where children are put up for adoption because a judge tends to favour local authority plans, may be rare (although we cannot know because of the secrecy of proceedings). But the very possibility merits scrutiny of court processes, standards of evidence and individual judgments. The welfare of the child demands that we know better how family judges function.

Consider this recent comment by a High Court family judge: "We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential."

Many would agree. The judge was Mr Justice Munby, the very same who refused the mother in Re B the right to identify the expert on Munchausen's syndrome by proxy in her case and who condemned as inappropriate the disclosure of details of a childcare case to the Minister for Children.

The author is the senior partner at Harman & Harman in Canterbury

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