From my latest Solicitors Journal column “Family Business”, 17/04/2012.
The family courts process is more transparent but legislation is needed to achieve true openness in public law cases, says Marilyn Stowe.
Exactly what should be made public from Family Division courts has been contested ground for many years now; it is an unfortunate irony that efforts to try to ensure greater transparency have resulted in some distinctly muddy waters. Despite Times journalist Camilla Cavendish’s successful campaign to open up family courts to the press in 2009, the arguments for and against continue. In the meantime, the most vulnerable in our society remain open to miscarriages of justice.
This was brought home to me by Professor Jane Ireland’s recent study ‘Evaluating Expert Witness Psychological Reports: Exploring Quality’ commissioned by the Family Justice Council. A damning critique of the role of so-called ‘expert’ witnesses in family proceedings, her study analyses the professionals whose words carry power of influence over family law judgements. The figures would be laughable if they weren’t so outrageous: 65 per cent of reports judged to be ‘poor’ or ‘very poor’; a culture of career ‘experts’ that provide cut and paste psychological assessments on people they have never met or spoken to; and 90 per cent of reports authored by non-practicing psychologists aside from their court work. These are people whose ‘insights’ decide the fate of children, 903 of whom were removed from their parents in January alone.
The issue here is the importance of peer review in such submissions. It seems beyond comprehension that the same degree of scrutiny of expert witness afforded in criminal cases is not employed in family law, despite similarly irrevocable decisions. Where there is the chance that rulings might be controversial or involve the vulnerable, there has to be greater openness. We may not like to imagine that experts and as a knock on effect, the judiciary, can get things wrong, but the reality is that they can and they do. I’ve seen it first-hand.
Paediatrician Sir Roy Meadow’s assertion that “there was only a one in 73 million chance of both children having died from natural causes” convicted Cheshire solicitor Sally Clark of the murder of her two infant sons. He was a leader in his field; he knew and worked well with judges and his views were sacrosanct. The loss of her case at appeal resulted in details being all over the news. Despite having no experience of criminal law, I felt something in the evidence didn’t add up and was compelled to lend my time to help. By investigating and approaching the hospital, I was able to unearth a microbiology report that had not been considered as evidence but which cast unquestionable doubt on Meadow’s assertions. Sally Clark was cleared by the Court of Appeal in 2003.
Transparency in family law is a topic that still evokes polarised opinion. At the Staffordshire University Law School’s Annual Family Law Conference last month, I listened to the counter argument; Mavis Maclean was involved as an adviser between politicians determined to see openness, and lawmakers concerned with protecting the parties and the professionals involved. Her concern over violating the human right to respect private family life is appropriate. And in private law cases, I think the parties should always be entitled to anonymity, even in the Court of Appeal where they are currently not. But public law is different.
You would be forgiven for being unaware that the first steps of reform have actually been taken. In a two stage process to reform the current state of affairs, stage one was the Children Schools and Families Act, which became law in 2010 and featured a mollified version of a transparency clause. However, stage two is yet to happen and the law remains frustratingly unclear. While the family courts may now be open to the press, journalists are in limbo and unsure about the legalities of what they can report. The threat of being held in contempt of court acts as a convincing censor, and the ability to challenge expert evidence is vastly reduced if not extinguished. However, human rights also extend to the right to a fair hearing. If expert evidence is unchallenged (as it largely will be on costs grounds alone), and the press aren’t able to examine and report with suitable safeguards, can we be sure the expert is correct and the hearing has been fair?
Mavis Maclean has written on the fact that the road from good idea to good practice is long and hard and there’s no doubt that transparency is a nuanced issue. What is certain is that greater clarity must be legislated for to protect those at risk and, judging by Professor Ireland’s report, it must be done so quickly.