Media access to the family courts: daylight or danger?

Family Law|December 12th 2014

Earlier this week the Family Justice Council devoted its annual debate to the topic of transparency in the family courts – asking Is the Family Court Open for Business? The debate specifically addressed plans by the President of the Family Division to permit wider public reporting of cases heard in the Family Court and the Court of Protection.

Deputy Children’s Commissioner Sue Berelowitz  took part in the debate, and made some startling claims about the potential dangers of doing so.. She argued strongly that the family courts should remain private – emphasizing the term “private” rather than the media’ favourite term in relation to family courts – “secret”.

In remarks subsequently reported by the Daily Mail, she went on to emphasize what she claims are the risks posed to vulnerable children in the family courts, declaring:

“I have worked closely with profoundly distressed and damaged and trouble children all my working life. I know and understand their minds; it is my job so to do. I know how little it takes to tip a child over the edge.”

First thing this morning, in response, Radio LBC was on the phone, as I was literally reading the story, asking for my comments. It’s not easy to summarize the law as it currently stands in exactly one minute and give an opinion, but I had a go!

What I would have said, had I been given a little more time, something like the following.

What is the truth of this media furore? Are the family courts really secret? Are decisions really taken secretly, as opposed to in private. and does reporting them to the current extent really cause injustice and place children in grave danger?

The starting point in this discussion began on 29th April 2009, when the Family Courts were first opened to the press. Registered members of the press were permitted to attend any family court hearing which was not for the purposes of judicially assisted negotiation. I should add that attendance at a hearing was not the same as reporting those proceedings.

I spoke about the first stirrings of the press being allowed to report family court hearings in a speech to the Staffordshire University Annual Family Seminar the following year, when things were moving on with the Children Schools and Families Act 2010 coming into effect. This was designed to be implemented in two stages. This year the President implemented the critical second stage, which I recall many legal academics thought was mere wishful thinking that might never happen. Stage two prompted this debate.

The guidance issued by the President in relation to the judgments issued in Family Courts and the Court of Protection, by the way, can be found here and here.

No doubt the substantial press interest in high profile cases helped to speed up the process – for example, the Italian mother who was mentally ill and who had a cesarean section pursuant to an order obtained at the Court of Protection.

The National Youth Advocacy Service (NYAS), which supports young people, is a campaigner for more not less privacy in the family courts and shares the views of the Deputy Children’s Commissioner. It has produced its own report (worth a read) which found that of all 11 children interviewed, not one wanted the case reported in the media for fear of suffering negative feelings reading about it, and the potential harmful impact of such an experience. NYAC is so concerned about the move to greater transparency by the President that it has launched a petition aimed at attracting the requisite 100,000 signatures for a Parliamentary debate on the subject.

Reading all this first of all brings to mind Article 16 of the Convention on the Rights of the Child, which I mentioned at the speech back in 2010. This protects arbitrary or unlawful interference with children’s right to privacy, and the right to the protection of the law from such interference.

But many adults take a different view, and do not think the interests of the child are harmed by reporting judgements – instead they believe they are reinforced. I can guarantee this blog will receive a comment from a disgruntled parent pretty much once a week complaining about a “secret” decision taken in the family courts of this country, and I can also guarantee that there will be a comment critical of the “secrecy” of those courts. Equally certain is that some journalist with a substantial national media platform will frequently make similar unguarded assertions and complain bitterly about the decisions judges apparently take in “secret” and how this impacts adversely on poor, downtrodden families. MPs often make similar claims too, protected when they do by privilege in the House of Commons. Liberal Democrat MP John Hemming is one prominent example.

So what has been happening?

As a result of the new guidelines, it is now possible to read on the Bailii website many such judgments, and find out first hand what is really happening in the family courts. Judges are reporting cases and permitting them to be the subject of press scrutiny. On this blog only last week I wrote very critically of a decision involving a child and the local authority in Rotherham. Experts were named, the Judge fully explained his reasoning, it was all public and transparent, but what was not under the spotlight was the identity of the parties or any features that could identify them. It was in my view as a lawyer/reader, carefully balanced and very well done. It explained what was done and why and personally, I think that’s as far as we should go in public law cases.

Then there is the position in private law. Back in 2010 at the Staffordshire Conference I expressed my concerns at the amount of publicly available information that could surface with reporting of divorce cases. I think the situation has now become even worse. I recently wrote about Mrs Justice Roberts’s judgement in relation to media reporting of the divorce of Sir Chris Hohn – a spectacular £1 billion case. The judgment considered the balance to be effected between the rights of the couple to privacy and the public interest in a case where a husband was arguing a “stellar contribution.” It’s a detailed, careful judgement and well worth reading.

However, in my speech to the University I argued that couples going through divorce be entitled to absolute privacy – divorces are, after all, private law family matters and the participants may have had little choice but to take part in them. I personally don’t see what any of Sir Christopher Hohn’s business affairs, or those of his wife, let alone full details of the extent of their wealth, have to do with any of us – but of course, the development and application of the law itself is a matter for public knowledge. Surely in the interests of personal security, these couples and their children should be entitled to their privacy in the court system, no matter what informaton may be publicly available elsewhere?

Getting the balance right is important- I therefore support anonymizing all identifying details of a couple in judgments, in order to concentrate fully on legal principles without the distractions of personal details. I would go even further and argue that it should be done even in the appellate courts.

As an arbitrator I should now point out, there is another answer for concerned couples, anxious not to let the world learn the extent of their wealth, or the amount each of them ultimately receives – and that is to arbitrate, a process in which privacy is a given.

But what about the often shocking facts contained in children’s cases, where children can as a result be removed from their parents, put into care and/or adopted? Should those public law children’s cases be reported, where the most serious allegations can be made, documentation made available, and experts named, with all the resulting potential for a child to read about their case in a newspaper or hear it discussed on a radio, whether now or in years to come?

At the Family Justice Council debate, Mr Justice Newton spoke of his own experiences in the glare of the media spotlight, and declared:

“To put it really rather bluntly, if a judge can change the whole of someone’s life by the stroke of a pen, then there is a pressing need , an overwhelming need I would say, for openness.”

Meanwhile, Baroness Tyler, the Chair of Cafcass, spoke in favour of transparency, but also emphasized the need to protect children and the families. “Transparency,” she said, is “about being open and honest with the individuals in a family-court case.”

She continued:

“But … I also want to say very clearly what I think transparency isn’t about. I certainly don’t think it is about exposing children or their families to the glare of publicity in any way. Shining a spotlight on a child’s needs is not the same as their story being told or, even worse, sold to the world.”

Quite.

We also heard from James Turner QC, who spoke about the complexities inherent in the reporting of financial cases and whose views seem to be along the lines of my own.

Arguably, in cases involving children, their interests are paramount, and so such cases should of course be publicly available for debate. What we have on Bailli so far seems to get the balance right. The argument goes that the power of the Judiciary and the power of the State as exercised through local authorities, should be publicly scrutinized, along with the opinions of experts. I can see how this is being implemented and it’s hard to argue with the principle or the manner in which identifying features are being redacted from the judgments. The volume of the judgments on Bailii and the information contained in them is to my mind extremely helpful, sensitively done and therefore impressive.

But I’m conscious that I’m not the litigant in public or private law cases. It’s not my case that is being handled in this way and I’m not subject to those constraints. SO I’m interested in your opinions.

In private law cases, do you believe that the parties may be identified and all their dirty linen should be washed in public?

Are you for or against what is currently happening: transparency balanced against the interests of the parties, above all the child? Are you happy that important identifying features are being redacted from judgements and it is left to the judge in each case to decide what salient features may or may not be reported: is that the right balance?

Let me ask this too:- Would you go even further? Would you want to be able to freely discuss the case in the media, referring to documents and reports produced without fear of being held in contempt of court?

You can listen to Family Justice Council debate here or read a transcript here.

Author: Stowe Family Law

Comments(14)

  1. Dave Darby says:

    Having attended this debate myself, I found it abhorrent that not once person spoke out about the incompetence of CAFCASS and Social service workers and some lawyers and barristers. Whilst I fully appreciate that it might be in the best interests of some children, to keep their names out of the spotlight as such, I feel that the incompetencies of the aforementioned, must be brought out into the public domain and rightly named and shamed, so that parents can check who they are dealing with to see if they have been named and shamed.
    I will not mention a certain CAFCASS service manager who dealt with my own tragic case, but I felt it was only right to name and shame said person on a certain website, as I have done with those so called professionals involved in wrecking my sons life. I for one would be only too happy to supply my bundle to the media.
    I can only hope Sir James Munby opens the courts. I feel it will be hugely beneficial to do so. However, as many know, family courts are secret and chose to be to protect said incompetence professionals in it that continue to abuse a child’s right to family life because of money.

    • Marilyn Stowe says:

      Dear Dave
      Thanks for this, but what do you mean by opening the courts? That’s the question Im asking readers to answer. Id very much like to know what more readers think needs to be done.
      Regards
      Marilyn

  2. Anonymous says:

    The day that the family court is open and transparent in any meaningful way that will allow the public to see what is actually going on there is the day that I will eat my boot.

    Instead of having any meaningful discussion of how this could be done in a responsible way, all we have are the same scoundrels debating a non-issue that will result in non-change and non-progress.

    Unfortunately, journalists have only shown themselves to be half-wits in their challenge to the secrecy of the family court, because the politicians and lawyers whose job it is to know how to manipulate language best always get the better of them.

  3. anon 2 says:

    I am aware that if my case had been heard in open court there would have very likely to have been a different outcome. I can not imagine the Judge would make the same comments in an open court .I would also been able to have support from family members. It is rather strange watching the extended family and friends going into court supporting those facing criminal charges and I could not even have my Mum with me.
    I do try to maintain an open mind though. I do wonder if the whole debate is rather like putting water in a leaking bucket, parents are simply just using social media to publicise their cases. I have yet to do this , and would not name my children though I have every sympathy for those parents whose children are adopted. What do they have to lose?
    I think the Aysha King case showed what a difference openness made, I am sure that an emergency protection order or interim care order would have been made without the publicity.
    The other point is who on earth apart from family/supporters and the occasional law student would be likely to want to attend the family court. If they want sensationalism they will watch Jeremy Kyle or Judge Judy. Journalists would be equally unlikely to attend the average family hearing.
    Provided that the parties are not named and there is sufficient redaction I would like all hearings to be heard in open court.

  4. anon 3 says:

    I personally think, alongside making family issues far more transparent, every decision should be recorded and monitored. We now benchmark Hospitals, GP’s, Schools and recently new legislation for care homes. How do we really know if progress is actually being accomplished with the slow changes that Parliament are introducing? I feel, I was extremely lucky that I had a CAFCASS officer who actually produced a report with insight and certainly addressed my child’s best interest. Furthermore, I had a judge who i cannot praise enough to be honest. I am one in a hundred that had a positive outcome, although, the alienation has not stopped from the resident parent. I pray, that within time, it will be apparent that my child will only enjoy a viable relationship with both his parents if the courts can enforce a change of residence. Time will tell.

  5. anon 2 says:

    I would also add that parents ought to be able to take discrepancies in reports to the media.
    At the moment there is no realistic way to hold Cafcass , Judges or Children’s Services or legal professionals to account. I know in theory there is, but in practice there actually isn’t. The NHS is overhauling it’s Complaint’s procedure since Stafford, other public bodies need to follow.
    There also needs to be adequate protection and encouragement for whistle-blowers.

    There has only been a very small number of children asked and how were they chosen?

  6. Nick Langford says:

    I agree that there is a balancing exercise to be done and it is by no means an easy one. Even people with apparently strongly held views are sometimes inconsistent and F4J, for example, has wavered between full transparency and some degree of anonymisation.

    Those who argue for more privacy/secrecy often misrepresent the risks – Bailii is not widely read in the school playground, and even with full transparency few cases will be reported, the press just aren’t interested in run-of-the-mill cases (see Ursula Cheer on the NZ experience).

    Transparency should not merely be seen in terms of media access – which is how it is often presented – and there needs to be greater access for academics, students, ministers, researchers for bona fide organisations and others with a legitimate interest.

    A sample of 11 is not representative or of any value, and we would need to know what questions were asked. Children in these surveys are often asked leading questions like, “do you want all your personal life splashed across the tabloids?”

    I would be inclined to agree with Mr Justice Newton: these are huge, life-changing decisions and they need to be made on the very best of evidence, following the very best procedures, by highly trained and capable individuals. Even such openness as we have shows that this is rarely the case: cases which reach the Court of Appeal reveal that in the lower courts there is often a dearth of evidence, poor adherence to proper procedure and decisions are made by judges unable to put together an argument. Everyone who has been through the system can tell horror stories.

    If the balance is between a slim risk that some details of a child’s private life become public knowledge or the very real chance that a far-reaching, irreversible decision will be made on insufficient evidence and poor reasoning, I know which way I will vote.

    People like Sue Berelowitz need to be challenged. If she is right then the recent relaxations of privacy should already have resulted in the effects she warns about. Obviously the courts don’t monitor cases – one of the gravest failings – so we don’t have the data, but debates like this need to be based on sound evidence rather than gut-feelings. Has any child ever been damaged by transparency? Has any child ever been protected by secrecy? These questions need to be answered.

    As far as my own research has been able to penetrate, the answer to both questions is a resounding “no”, but there is also the issue that the main justification for secrecy according to the ECHR (April 2001) is that the interests of justice will be compromised unless “parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment.” Is this fear substantiated, and if it is, how can parents and witnesses by reassured on this point?

    Baill is a wonderful resource, but it reveals little about the process, and those who read the judgements there cannot determine whether justice has been done. One further problem with anonymising cases is that some judgements in the same case can be published under different names, and it can be difficult to follow through a long-standing case.

    Finally, is it not ironic – to say the least – that some of those here arguing for greater transparency have chosen to be anonymous?

  7. Vincent McGovern. says:

    In private law children’s matters I support more and better reporting of judgments etc, particularly in Fof. But the children especially should never be identified. In certain cases where there has been abhorrent behaviour by a parent especially where there has been extensive facilitation and promotion of risible but damaging false allegations by a parent with the eager ideological support of local services (provision dependent on gender), I believe this should be brought to public attention.

    I say this based on the fact I have had 4 Ombudsman Investigations, 2 were Parliamentary and Health Services Ombudsman with findings in my favour including Cafcass and Solicitors Regulatory Authority. In reality this has made absolutely no difference to their working practice. The virtual unregulation and lack of accountability is why I have twice petitioned the Petitions Commission of the European Parliament in 2014. Much better results there.

    Vincent McGovern

    Chair, Central and North London Branches Families Need Fathers.

  8. StuG says:

    The usual bunk from a family law professional admirably demonstrating their linguistic framing skills. Either that, or they simply don’t get the point. If the latter, they similarly demonstrate how unfit for purpose they are. A seemingly benign blog about transparency in family courts that purports to encourage debate but wishes to keep the remit of that debate limited. Very British. Very family court.

    Marilyn heralds the advent of judgments on the Bailii website. A judgement is written one person, the judge. It is their choice of how the facts of the case will be presented and how they justify their decision. Like any legal person, they have the ability to frame the case as they feel. Most family court judgments are exactly that – a justification of a decision based on feelings anecdotally supported.

    There’s no comment from Marilyn about what every person involved in the family law system knows – it is nigh on impossible, given the lack of evidenciary and procedural safeguards, for any decision made in the family courts to be reliable. There is no follow up study. There is no forensic examination of cases. This is a bunch of improproperly trained, unaccountable people, making decisions in secret about children. No such system should ever have been allowed to live. The kind of person who takes a job making decisions about kids without monitoring is the last kind of person who should be considered. What you read in a judgment is not necessarily the facts of the case, but the story. Most leave out more than they put in. You do not ‘find out first hand what is really happening in the family courts.’

    The media does not operate in the manner the courts want them to, and the courts know it. The media does not hang around in courts. Most journos are self employed and busy. They don’t get paid for stuff that does not get printed. ‘Opening up the courts’ was merely another form of censorship. Real transparency would be to film hearings to allow access by litigants in that particular case, forensic studies, legal studies, human rights observers….and the media. Reporting restrictions could still apply. Anything less is a pretence of transparency. Keep framing the pretence, Marilyn: if they hear it enough, they’ll believe it.

    I agree that all cases should be anonymised. But in divorces, a financial spreadsheet should be prepared at every hearing, so people can look up how to do divorces themselves and cut the lawyers and the courts out. It is because of the variable performance of lawyers and the capricious nature of the courts that they are used at all. That flies in the face of your comment about the public knowing about the development of the law.

    Baroness Tyler: “Transparency,” she said, is “about being open and honest with the individuals in a family-court case.”Nice words. From the single most agency delivering the greatest amount of dishonest and bias reporting in court. Again, a pretty much unaccountable mob.

    Marilyn uses the euphemism ‘shining alight on the children.’ Another framing technique. Opening the courts is about shining a light on the professionals. Name the professionals, protect the identities of the children. Easy.

    “The volume of the judgments on Bailii and the information contained in them is to my mind extremely helpful, sensitively done and therefore impressive.”

    How would you know without being at those hearings? Bailii is the public face of the private courts. It’s where the judiciary gets to market their work. When I see the judgements put up with comments allowed I’ll be more impressed. When the court system allows litigants a 4 week period in which to question judgements before they are final I’ll be even more impressed. Until then, I’ll be less impressionable than the professional sycophants who revere judges.

    “The argument goes that the power of the Judiciary and the power of the State as exercised through local authorities, should be publicly scrutinized, along with the opinions of experts.” And that happens on Bailii, right?

    Transparency is not about “washing dirty linen in public.” It’s about education and legal consistency so people don’t have to use the courts at all. It’s about keeping tab on the professionals. It’s about protecting children and court users from the professionals, because too many act outside their legal remit. It’s about ending the monopoly of professionals over all matters: for instance, I note not a single family court user was on the Family Justice Panel. Says it all, really.

  9. anon 2 says:

    To reply to Nick regarding being anonymity. I do this for a two fold reason , firstly to protect my children and secondly I believe, maybe wrongly that I can not disclose my name publicly without contempt of court. I would be happy to be corrected on the second point if applicable.
    I have actually been had a case in the Court of Appeal and I was not at all bothered about it being heard in public and apart from someone taking notes,no one else was there .
    What does have to be sorted out is parents assertions of professional bias and perjury. Many would love to pass on court documents to the media, I realise this could be inappropriate but can someone please come up with some other way for greater accountability?

  10. Saturday Evening Posts Worth Reading and the 25- Hour News. says:

    […] Marilyn Stowe on Media Access to the Family Courts. […]

  11. Nick Langford says:

    I obviously wouldn’t want to encourage anyone to break the law, but sometimes if you believe in something strongly enough you have to stand up and be counted. I’m not convinced that keeping children anonymous actually protects them – from what, exactly? Where’s the research? And as far as I know no one has been successfully prosecuted for breaching the rules such as Section 97 of the Children Act. I wasn’t really having a go – I just thought that all the people posting about greater openness while remaining anonymous was ironic.

  12. Bailli Legal Website | Best Simple Legal Advice says:

    […] Media access to the family courts: daylight or danger? – It’s not easy to summarize the law as it currently stands in exactly one minute and … As a result of the new guidelines, it is now possible to read on the Bailii website many such judgments, and find out first hand what is really happening in the … […]

  13. Paul says:

    What I received from the family court was little more than a witch trial. There is no doubt in my mind that more truth openness and transparency is the way forward for these appauling courts.
    My faith in justice has been completely destroyed by what I witnessed in these court rooms. If a family court professional was on fire do not look to me to call the fire brigade. Thats all im saying.

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