UK Family Law Reform

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Open or shut case

Interviews by Mark Gould

The Guardian - Wednesday 19th April 2006

The government has delayed a consultation on opening up the family courts by allowing cases to be heard in public. Is more transparency required?

Ian Johnston
Director, British Association of Social Workers
I have some sympathy with the objectives of removing barriers and sharing information, but this is a sensitive area and more openness raises serious questions. Children have a right to be protected from information being inappropriately shared with others. There are anomalies in the family court system. If it seems reasonable to be able to complain to the General Medical Council when an expert witness's conduct has been questionable [in the criminal courts], why can't you complain to the General Social Care Council about a social worker who is an expert witness [in the family courts]? The most important aspect is the child's right to be protected. Family courts deal with care proceedings, abuse, neglect and other contentious issues. It isn't helpful for a lot of that to be publicly available. Child sexual abusers may more readily gain access to information they could use for their own gratification. The way forward would be to remove this from any politically-driven process and instigate an inquiry under an independent expert, but the ultimate aim should be protecting the child.

Sarah Harman
Solicitor, founder of Families Action for Court Transparency and Openness
There have been concerns about how family court judges evaluate expert evidence they rely on, but how real these concerns are can never be more than anecdotal because of the secrecy under which courts operate. In the criminal courts, experts have to be identified, and the suggestion that a witness should give evidence on an anonymised basis would be considered scandalous. In the family courts, experts can propound untested theories, which the judges may rely on in deciding to separate children from their families on a permanent basis. An example is the "Munchausen syndrome by proxy" theory put forward by Professor Sir Roy Meadow and now discredited. Without even meeting children or their families, Meadow and his acolytes would advise the courts that parents might harm their children to draw attention to themselves. The research on which such theories were based was highly suspect and was successfully challenged in the criminal cases against Sally Clark and Angela Canning. We do not know how many family cases have been decided on such dubious evidence. Courts in Scotland, New Zealand and Canada are open to media reporting, and children in those jurisdictions appear to be unharmed by the transparency. Children need to be protected from being identified, as this might expose them and their families to unwelcome gossip. But openly discussing the issues involved in child protection cases is a different matter entirely, and a democratic society cannot afford to have such important decisions made behind closed doors. Family court judges insist they are in favour of more transparency, but are still reluctant to make judgments public, except in rare circumstances.

Glyn Farrow
Chief executive, Children Law UK
There may be some cases where it would be suitable to include the press and public, but for others it would be disastrous. It is terribly delicate and we need to get it right. To do that we need more research. We need to know about what happens in other jurisdictions and countries. In Scandinavia, they have a totally different approach to family courts, and I would like to know how successful they are. In Scotland, courts are more open to members of the family, but you can't just wander in like getting a grandstand seat for a showpiece trial at the Old Bailey. I think we probably will have some form of openness in family courts at some stage, but we need to take our time over it. The interests of the child are paramount.

Adrienne Burgess
Research and policy officer, Fathers Direct
It seems incredible now, but in the early days of our English Parliament anyone disclosing "account of its debates" could be prosecuted, and it wasn't until 1803 that the press was admitted. Future generations will be similarly shocked that English family court proceedings were, in the early 21st century, conducted in camera. The aim of protecting family and child privacy is laudable, but the consequences of this secrecy have been disastrous: little scrutiny, public accountability or consistency in process or outcome; universal ignorance of regional and other variations; and the fuelling of fantasies about cruelty and injustice polarised along gender lines, as so open happens with divorcing couples. Thus women's groups have battled it out with the fathers' rights groups - one lining up to represent lone mothers as being regularly obliged to release terrified children into the care of abusive fathers, the other claiming "anti-father" bias throughout the land. That either scenario should prevail is shocking enough; that we don't know how often they do is equally dreadful. Only when family court proceedings are open to public scrutiny - with appropriate safeguards for child privacy - will we be able to begin normalising the process of separation and divorce, and establishing and monitoring agreed standards for all the parties involved.

Layton Bevan
Families Anti-Social Services Inquiries
Harriet Harman [minister for constitutional affairs] should immediately announce that parents prosecuted in the family courts and who were acquitted or had cases dismissed, or were awarded costs against the local authority, could disclose all their papers to the press. Current laws prevent anyone who feels they have been unjustly treated from complaining publicly. No parent or family member claiming that they have suffered an injustice should be restrained by secrecy rules from making public their own names or any details of family court proceedings. Unless there is a genuine intention to come clean and admit that the purpose of secrecy is to protect the social workers, paediatricians and other expert witnesses, utterances of "transparency" will be seen for what they are: "spin". It is quite absurd that officials can accuse parents and children, and then, in a secret court, gain further anonymity, while simultaneously being handsomely paid by the state for every aspect of their court appearance and their reports.

Anthony Douglas
Chief executive, Children and Family Court Advisory and Support Service
The real question is: do the family courts make the right decisions for individual children? Outcome studies of family court decisions are fewer than for other parts of the justice system. The test of a decision is whether an individual child is more secure, safer, happier, healthier, better educated, and has stronger, lasting attachments. What happens earlier on to positively sort out issues without going to court matters more, as does ensuring support for everyone involved to make a court order work. Opening up the family courts in a way that protects the identity of individual children is important. We are uncomfortable with what is happening close to home, and most risks for children are in the home. So, yes to transparency - but transparency to advance the needs, wishes, feelings and rights of children.

"The cost to the good citizens for their indifference in public affairs is to be ruled by evil men"

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