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Transparency, transparency

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March 28, 2024

Transparency. These days a word that you can’t escape. The word of the moment, the fad that everyone is talking about, from the President of the Family Division downwards. Encouraged by his lead, many judges, family lawyers and others are working feverishly to improve transparency. It is the universal panacea that will solve the image problem of the family justice system.

Or is it?

There are some, whether as a result of bad personal experiences, or whether following a particular agenda, who accuse the family courts of operating a system of secret unaccountable justice. They should loud, from rooftops (literally) and via whatever means they have available, not least social media. They use whatever tactic they can to attract attention, including the hackneyed one of outrageous exaggeration, saying such things as that the ‘corrupt family courts steal our children’.

Like any message that is shouted loudly enough, it is picked up by the popular media. Seeing a good story and never letting the truth get in its way, they run with it, ratcheting up the clamour for the system to be opened up and exposed for the corrupt edifice that it is.

Rather than staying aloof from such nonsense, those at the top of the family justice system and many within it start running scared. Something must be done to counter these false allegations, or there will be dire consequences.

Those who give in to the loud feverish voices are like politicians responding to the popular media; pandering to the masses, for fear of losing votes. Instead of standing up for what is right, for example that there is actually not a problem with human rights or ‘interfering European Courts’, they give in to the clamour and promise to ‘do something about it’. The family justice system apologists are just the same. Instead of ignoring those voices they insist that action must be taken to defend the system.

Their response is summed up in one word: ‘transparency’. If we are transparent in everything we do, all of those who criticise the system will see that they were wrong: the system is not secretive, and it operates in the best interests of families and, in particular, of children.

Well, there is one fundamental flaw in that argument: it presupposes that the critics are all reasonable people, who will understand why the family courts do what they do, and accept that they were wrong. Unfortunately, many of the critics are not reasonable, and will not listen to reason. In fact, no matter what you say to them, they will still be convinced they are right.

So instead of rising to the bait, all that needs to be done is to ask a simple question.

The simple question is this: Is there a good reason why some family cases are dealt with privately, and some details of cases withheld? If the answer is ‘yes’, then that is the end of the matter.

The answer is ‘yes’.

Now, I’m sure that many will find this to be appallingly complacent. However, I am not for one moment saying that the system never gets things wrong. Like any system, it does get things wrong sometimes. I am also not saying that we should not look for ways of improving the system. On the contrary, we should be constantly aware of the possibility of improvement. However, the driving force for change should never be the volume of the calls for change, but rather the rightness of those calls.

As I’ve said above and before, this is an argument that the family justice system simply cannot win, and it shouldn’t expend precious scant resources trying to. Let us therefore forget transparency and get on with the job in hand.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Dr. Nigel Miles says:

    I am sorry John but in some instances the Court do get it wrong and changes have to be made. Any evidence provided has to be empirical and when it is not it is not a ‘slap on the wrist for those who perjured themselves acting for society. We are realising serious abuse to children and knowing lt when Local Authority public servants lie and pervert the Course of Justice then the law had to take the full affect.

    Sometimes you have to be out of the system to be able to framework and react with holitical empiricism which most family Court Judges and solicitors and their counsels do rarely.

    It makes a mockery of justice compared to mature democracies in the EU especially when justice speaks only through the bank balance. It is unfortunate that Family Courts in respect to certain aspects of Private (what a tern!) Law relate absolutely nout to FACTS over coercive influence by some parties causing mayhem. This is an outrage and is similar to events in Courts hundreds of years ago at the time of Judge Jeffries.

    One aspect of Private Law which is so anachronistic is Parity in responsible parenting when hundreds of thousands of children are raised sub normally when the other parent in their family is hostile firewalled by perjury of the other in Court.

    So John please don’t discuss transparency to me. ln this case it is an insult and to my family and me and unworthy but may be typical of those certain interpreters of the laws made in Parliament and to be honest of one who is relatively well educated, this is a sham.

  2. Nordic says:

    Increased transparency is unlikely to solve the courts’ image problem, since this presumes the problem merely is one of image. It will however shine a much needed light on a deeply flawed system of family law.
    Where privacy is the default and openness an elective judicial privilege, secrecy is the result. Without openness, justice cannot be assured and the judicial becomes a state in the state beyond the reach of parliament. There are plenty of examples of miscarriages of justice which only got redress because MPs used parliamentary immunity to expose the facts. How many miscarriages are you willing to tolerate to keep a lid on malpractices?
    Your arguments against opening up our family courts do not stand up to any scrutiny. Naming restrictions work in our criminal courts, they work in most other family law jurisdiction across Europe, where openness many places is a constitutionally secured right. I share your concerns about misuse of social media, but this is unrelated to the issue of openness since such misuse also breaches reporting and naming restrictions. Additionally, often the perpetrator was in the court room and hence privacy proved no restraint. Indeed, I suspect such abuse is more prevalent here precisely because our family courts remain secret.
    Your dismissal of those who oppose the current state of affairs is offensive. I am an average bloke who have never shouted from any roof top. You need not be a radical to appreciate the importance of respect for fundamental democratic rights and good governance.

  3. JamesB says:

    Two things. One post this time as I thought about it a while.

    Justice should not only be done, but it should be seen to be done.

    If the family courts discussed here have nothing to bad hide with being open, then they should be open.

    Therefore the conclusion will be drawn unless otherwise that bad things happen in there and with lack of openness and evidence suggesting otherwise then that opinion will prevail.

    Even Harriet Harmon, and I don’t normally side with feminists like her or her sister, said it is not possible to defend these courts while they are closed. On that I agree with her. I also think if you open them up they will be seen to be bad and then move to changing for the better, which will be a good thing. When I was a student at school I remember one of the prerequisites for fair society was freedom of the press. Well, its the same thing here, these places need to be opened up to more, a lot more public scruitany for their own and societies good. Indeed they are, or rather should be, public courts, owned by the public, rather than a ruling elite establishment anyway. Public institutions need to have the public’s confidence. Not sneer at them (the public) behind locked doors.

  4. Luke says:

    “Now, I’m sure that many will find this to be appallingly complacent. ”
    Oh, I don’t think the word ‘many’ remotely covers it…

  5. Harry Dischler says:

    Those within the system are the last to understand the need for transparency always, they continue to defend failing systems that work for them and their buddies and always say there is no need for transparency.

    The Police in the past said there was no need for transparency, then we had PACE and subsequent reforms which exposed the poor practices that were endemic in the system.

    The NHS in the past said there was no need for transparency, then we had a measure of light shone on the NHS and poor practices were exposed.

    John is yet another defending a system that is failing its users. He reacts as many do within these failing systems by closing his ears and mind to substantial change.

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