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Family courts' veil of secrecy will lift to win back public confidence
Clare Dyer, legal editor
The Guardian - Monday 5th December 2005
· Reform to quell
'festering' doubts over justice system
The curtain of secrecy hiding what goes on in the family courts of England and Wales is to be lifted, after concerns from senior judges and MPs that it damages public confidence in the administration of justice, the Guardian has learned.
The move follows claims by parents accused of child abuse and by divorced fathers denied the right to see their children that the courts are unaccountable and have mishandled their cases behind closed doors.
The judges believe that lifting the veil, while preserving the anonymity of the family, would help dispel fears that courts are removing children from their families on flimsy or dubious medical evidence, and that miscarriages of justice are widespread in the family justice system.
A government consultation paper in the spring will outline a range of options for reform. The most radical would be to open the courts to the media and the public, subject to the judge's right to exclude the public in particular cases.
That would be in line with a recommendation in February from the Commons constitutional affairs committee, which said: "A greater degree of transparency is required in the family courts. An obvious move would be to allow the press and public into the family courts under appropriate reporting restrictions and subject to the judge's discretion."
Less radical would be to make it a rule that all judgments are published in family cases, unless there are exceptional circumstances. At present, judges publish judgments at their discretion if they consider them to be legally important.
The restrictions on publicity in England and Wales go much further than those in Scotland and other Commonwealth countries such as Canada and Australia. Not only are the media and public excluded from family courts - except the magistrates' family proceedings court - but publishing anything that has happened in a children's case, including unpublished judgments or evidence from expert witnesses, without the judge's permission is contempt of court. The solicitor Sarah Harman fell foul of this provision when she sent information about a Munchausen syndrome by proxy case to her sister, Harriet Harman, then solicitor general, as well as to her client's MP and several journalists. The law has now been altered to allow disclosure to MPs, but not to journalists.
Mr Justice Munby, the judge who found Sarah Harman guilty of contempt of court, is a leading advocate of greater openness in the family courts. His strongest criticism of her in the case concerned - and probably the main reason why she was suspended from practising law for three months last week by the solicitors' disciplinary tribunal - was for misleading the court by applying to release information without admitting that she had already done so.
In a recent lecture Mr Justice Munby made a strong plea for more transparency, suggesting that the current restrictions may even breach the European convention on human rights and concluding: "It really is time that something was done about all this."
Because of the secrecy, he said, "misunderstandings about how the family justice system operates are allowed to grow and fester unchecked and uncorrected".
He added: "If opening the family courts generally to the public is a bridge too far - but is it, and if so why? - then surely there is a compelling case for opening all the family courts to the press, in the way in which the family proceedings court already is." As long as anonymity was preserved, he suggested, "what would be the damage, either to individual litigants or their witnesses or to the public interest, in allowing the media access to the family courts?"
A move to greater openness is also supported by the president of the family court division, Sir Mark Potter, and other senior judges.
But family law barristers have advised caution, pointing to fears that witnesses, particularly family members and doctors, who have been vilified in the media and who are increasingly unwilling to act as experts in childcare cases, would be inhibited about giving evidence.
Local authorities are also expected to oppose further relaxation of the court restrictions.
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