An Exercise in Absolute Futility: Chapter Ten
The Soul of Injustice
Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.
Jeremy Bentham, philosopher and legal reformer (Bentham, 1843).
It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Lord Sankey (Rex v Sussex Justices; Ex parte McCarthy, 1924)
Perhaps the most sinister and destructive aspect of the family justice system is that it operates behind closed doors, closed substantially to the media and closed completely to the public; closed to scrutiny and closed to accountability. Closed courts mean that there is no independent audit of family court activities; no appraisal of judges, no assessment of the judgements made, of court process, of delays, or of the involvement of CAFCASS. As no records are kept of outcomes, no evaluation can be made of them. Without evaluation what are judgments to be based on? No assessment is ever made of the impact of family court intervention on a child or his family. Margaret Booth, a High Court Judge, admitted,
The fact that so much of what we do takes place behind closed doors may now be having a marked effect on the professional approach of solicitors, barristers and judges alike. I do not see that effect as being beneficial. Everything is in danger of becoming too cosy and too informal and we are forgetting that we are lawyers. We do not have the Press or the public or even members or our own profession there to keep us up to the mark (The Times, 1987).
Within this protected environment judges have developed a ‘virtual new legislation’ (Mears, 2005), usurping the role of Parliament and promoting concepts not incorporated in the parliamentary legislation; family judge Sir Paul Coleridge warned that if Government won’t produce the laws judges want, the judges would do it for them,
The current laws are not suited to modern social mores or the way we live now… In 2002 in Cowan (Cowan v Cowan, 2001) and again last year in Charman (Charman v Charman, 2006) Lord Justice Thorpe in two long and careful judgments in the Court of Appeal called for urgent reform… The attempts by the House of Lords with White (White v White, 2000) and Macfarlane (McFarlane v McFarlane, 2006) and more recently the Court of Appeal in Charman to put a new supercharged engine into the old chassis are imaginative and perhaps better than nothing… (Coleridge P. , 2008)
Numerous excuses are offered for secrecy – or ‘confidentiality’ as its apologists would call it. The most prevalent is that children will be traumatised by media coverage; that while exposure could bring attention to judicial errors it could also be psychologically damaging. It is often argued that children will be bullied in the playground if their identities are revealed in court. It is argued that the public and press will only express interest in notorious cases, such as those involving celebrities, and opening up proceedings will thus not necessarily increase accountability or scrutiny, and will give the public a distorted view of court operations; that openness will result in the disruption of the system through the additional demands made on the court staff and facilities; that judges will worry about protecting themselves rather than children; that greater openness will not necessarily achieve the reforms campaigners desire; and that jurisdictions which have opened up their courts to the public have not seen a corresponding increase in public interest.
Opponents of media access cite a report prepared for the Children’s Commissioner by Julia Brophy of OXFLAP (Brophy J. , 2008). The methodology was curious: it presented 51 children with two hypothetical scenarios involving children going through family court proceedings and invited their responses at various stages. The final report does not detail the scenarios, so we don’t have all the data, but it has been criticised for influencing the children’s responses. It appears that media coverage was presented to the children as an arbitrary intrusion into that which should remain private; they were not told, for example, that appropriate scrutiny of the exercise of justice is essential if miscarriages of justice are to be avoided and children are not to be taken from their parents on the basis of false allegations. How these issues are presented to children will manifestly dictate their responses, and it is hard to consider the report representative. Open, accountable justice has little to do with media access or with allowing parents to continue their disputes in the press. There is no other evidence suggesting that media access is harmful to children.
The veteran equal parenting campaigner Dr Michael Pelling fought a number of cases seeking to challenge the secrecy of the family courts and to expose the feeble reasoning on which it is justified. In 2001 he forced the European Court of Human Rights to reveal their perverse belief that court openness would have an inhibiting effect on the parties and witnesses,
The proceedings which the present applicants wished to take place in public concerned the residence of each man’s son following the parents’ divorce or separation. The court considers that such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment (Pelling v United Kingdom & Bayram v United Kingdom, 2001).
Note that the ECHR actually believed trial in open court would prejudice the interests of justice – which not only turns Article 6(1) of the European Convention on Human Rights on its head (‘everyone is entitled to a fair and public hearing’) but is patently absurd. Even were this explanation valid there are other ways of achieving confidentiality without closing the courts to the public and it is clear the effective immunity from scrutiny they have has not merely allowed diffident litigants to attend court but has gravely compromised the exercise of justice; indeed, the future President of the Family Division, James Munby, warned, ‘We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system’ (Kent County Council v Mother, Father and B, 2004). In 2004 Pelling extracted the following definitive explanation from the UK Court of Appeal,
In the end the more convincing defence of the practice in our jurisdiction may be the most simple, namely that it is reflective of a long standing tradition, of general but not universal application, that has been franked by the European Court as Convention compliant (Dr Michael John Pelling, Appellant v Mrs Veronica Nana Bruce-Williams, Respondent; Secretary of State for Constitutional Affairs, Interested Party, 2004).
In other words, when the finest minds in the judiciary were called upon to justify the suffocating secrecy that smothers family proceedings, the best they could come up with was that it was a tradition, a habit.
There are three elements to preserving secrecy within the family justice system: restrictions on who may attend hearings, restrictions on who may view court documents and what they can be told about them, and restrictions on the publication of information. Secret hearings are conducted ‘in chambers’: they are private, and open only to the parties, their legal representatives or lay advisors (known as McKenzie Friends), and to CAFCASS Family Court Advisors (FCAs) and their legal teams. The rules allow the judge discretion to open his court if he wishes; consider for example Munby’s ruling that the rules were designed to make privacy the ‘default provision’ and were not to be construed as indicating a heavy presumption in favour of privacy (Re Brandon Webster (A Child) sub nom Norfolk County Council v Nicola Webster & Ors, 2006). The judge can use his boundless discretion to open his court, though in practice judges are rarely inclined so to do.
Publication of details of proceedings conducted in the secret family courts is made a Common Law criminal contempt by the Administration of Justice Act 1960. Section 12 prohibits publication – including purely oral communication to any third party – of what goes on in front of the judge sitting in camera; documents filed in court such as position statements, witness statements, reports, and legal arguments; transcripts or notes of evidence, submissions and judgments; and extracts, quotations and summaries of such documents, whether or not anonymised; any breach is a contempt of court. More familiar to litigants is the law which prohibits the publication of any material likely to identify a child involved in proceedings. This is enforced by Section 97 of the Children Act 1989 which makes identification a criminal offence (rather than merely contempt).
The default position is that children should remain anonymous unless it can be shown to be in their interest for anonymity to be lifted. As with the rules on access, there is a get-out clause. This means a judge can decide to publish a judgement – usually to counter allegations of a miscarriage of justice – while the parties involved are obliged to remain silent. To some extent Section 97 merely confirmed what was already law: the Children and Young Persons Act 1933 had forbidden publication of the name, address, or pictures of a child who was the subject of proceedings, or of particulars ‘calculated to identify’ him or her. The Children Act 2004 slightly relaxed the Section 97 rules on publication by amending them to cover publication only ‘to the public at large or any section of the public’.
Contrary to the fears that admitting the public would cause disruption, the experience of open jurisdictions is that the limited public interest shown has caused very little. Judge Pitt of Michigan admitted that before the juvenile system was opened she thought, ‘the sky would fall,’ but once it was opened, ‘it didn’t’. There was a similar belief in Minnesota – one of very few jurisdictions with a truly open system – that the system would be ‘flooded’, but after some proceedings were opened, the public only seemed interested in high-profile cases (Minnesota Supreme Court, 1996).
Politicians, judges, self-appointed children’s advocates and others who defend secret justice maintain that open courts would damage children. There is not a shred of empirical evidence to support this claim. Instead it is based on supposition and is, in James Munby’s words, ‘in significant measure speculative’ (Norfolk County Council v Nicola Webster and 5 Others, 2006). No member of the judiciary or Government has yet been able to show that harm has befallen a child whose identity has been revealed in court. In Scotland there are no restrictions on access to family courts by either the public or the media and no evidence this harms the children concerned. The identity of the parties can be published, though the court can prohibit the naming of children involved in proceedings, which restricts the publication of some cases. Closed courts were introduced not to protect children’s interests but to protect adults’ prejudices, ineptitude and dishonesty and the system itself. Secrecy, excused on the grounds that it protects privacy, is in reality the cloak beneath which privacy may be invaded without restraint.
Public confidence in the impartial operation of the family courts collapsed long ago. The Labour Government was caught between public pressure to open the courts to scrutiny and pressure from the judiciary and others to keep them closed. Clearly the prospect of revealing what actually went on in the courts was unthinkable, so for a time a compromise was considered: something which would have created the illusion of integrity, restored public confidence, and neutralised the campaigners for change. Following the Children Act 2004 breaches of Section 97 would only be a criminal offence if information were disclosed to the general public. Giving evidence to the Select Committee on Constitutional Affairs, Dame Elizabeth Butler-Sloss, then President of the Family Division, said,
I would recommend that there should be a presumption of access by the Press unless specifically excluded by the judge or district judge (Butler-Sloss, 2004).
That December the Department for Constitutional Affairs released a discussion paper, Disclosure of Information in Family Proceedings Cases Involving Children (Department for Constitutional Affairs, 2005). It proposed further relaxation of the court rules to allow for the disclosure of information to a wider range of people, including close family members, health care professionals, the Children’s Commissioner, mediators, constituency MPs, MEPs, members of the House of Lords, the General Medical Council, police officers and members of the Crown Prosecution Service, and it was implemented at Hallowe’en 2005 with the tantalising promise that there would be ‘wider consultation on the transparency of the family courts next spring’. In February 2006 the House of Commons Constitutional Affairs Committee duly published Family Justice: The operation of the family courts (Department for Constitutional Affairs Select Committee, 2006). It looked at the dwindling public confidence in the courts and the perception that prejudice and injustice were flourishing under the rules of privacy; it conceded,
Some of the evidence we received was that the lack of openness prevented proper scrutiny of the work done by family judges or court officials, and made it impossible to prove or disprove perceived unfairness.
In the same month fathers’ rights campaigner Simon Clayton had applied to the Court of Appeal to be allowed to discuss in public the agreement for shared parenting he and his former wife had come to at the conclusion of proceedings concerning their daughter Esti (Clayton v Clayton, 2006). He wanted to be able to debate issues about the family justice system in public by reference to his own case, and to campaign for better and more open family justice, including the sharing of Tax Credits and Child Benefit where there were shared parenting arrangements. He also wished to put photographs of Esti on his website recording ordinary family happenings. Nicholas Wall ruled the prohibition from identifying children in Section 97 of the Children Act 1989 only applies whilst the proceedings relating to the child in question are in progress. Once proceedings have concluded, the protection given by the Act comes to an end, the entitlement to anonymity thereafter being dependent upon an exercise in balancing the Convention rights of those involved. Wall admitted,
I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child’s family or private life.
In November James Munby declared the belief that Section 97 outlasted the proceedings to have been ‘exploded for what it always was – yet another of the many fallacies and misunderstandings which have tended to bedevil this particular area of the law’ (Norfolk County Council v Nicola Webster and 5 Others, 2006). Munby ordered that gagging orders should be lifted,
It is a fundamental and long established principle of our legal system… that justice is administered in public. Legal proceedings should be conducted in public and should be fully and freely reported.
If the media are to be permitted access to the forthcoming hearing that access cannot properly be confined to the particular organs of the media who are before me. It is not for a judge to licence the media, preferring one over another.
The case concerned the 5-month-old fourth child, Brandon Webster, of parents whose 3 other children had been made the subject of care orders and subsequently adopted. Munby ruled that the parents, Mark and Nicola Webster, could take Brandon home. He also ruled that the media could attend. Munby considered two separate issues: one, the admittance of the media, and the other, the identification of the parents. The judgement relied on 4 facts: the parents (and the media) had alleged a miscarriage of justice, the parents themselves wished for publicity, the case had already been extensively publicised, and the publicity had led to the need for the truth and facts of the case to emerge in order to command public confidence. In other words, a cynic might say, the judgement was an exercise in damage limitation. The case itself applies only where the four criteria are satisfied, and therefore only in a tiny minority of cases. Munby did NOT sit in open court as he only admitted the media and not the general public; as any judge sitting in chambers may do, he admitted those to whom he chose to grant the privilege. As a precedent, the danger is that censorship by the judiciary will be replaced by censorship by the parties and media. Munby, who was particularly concerned about poor public confidence in the family courts, provided a comprehensive review in his judgement of the law relating to media access, fully covering and reviewing both the statutes and key authorities.
Webster demonstrated that the welfare of the child is not the only consideration, nor need it be paramount in proceedings not determined by the Children Act, and that the child’s welfare must be balanced against other factors including the parents’ wishes; the public interest in the case; the effect of identification on others, such as siblings; and the fact that identification had already been made in the media. Furthermore, Munby described the risk of harm as speculative, particularly given the age of the child and the level of identifying material already in the public domain.
In 2007 the Websters sought an application to reopen the care hearings which took their three other children from them and were granted legal aid for the attempt. The case was heard in 2009 and the appeals were dismissed; Nicholas Wall said ‘it is far too late for the applicants to bring appeals in which to press that these orders be set aside and that the applications for them be reheard’ (Re W (Children), 2009b). Judge Nicholas Wilson, however, was left feeling ‘profoundly uncomfortable’: there were ‘substantial grounds’ for believing the injuries to the children were not non-accidental and were the result of a poor diet deficient in vitamin C and iron; were the case to be heard again he doubted that Norfolk would succeed, ‘Yet the finding of non-accidental injury to child B was the foundation of the permanent removal from the applicants of himself and indeed of their two other children’. Wall dismissed the suggestion that publicity would have prevented the miscarriage of justice.
It is manifestly in the public interest that where there has been a clear miscarriage of justice or where a severe miscarriage has been alleged such cases should be open to public scrutiny. In the case of the Websters they wanted their case publicised and the press wanted to report on it; in the vast majority of cases the press would not wish to do so, which is why access to the public and not just to the press must be granted.
Rex v Sussex Justices; Ex parte McCarthy,  1 KB 256,  All ER 233 (1924).
(1987, May 22). The Times.
White v White,  UKHL 54 (House of Lords 2000).
Cowan v Cowan,  EWCA Civ 679 (Court of Appeal 2001).
Pelling v United Kingdom & Bayram v United Kingdom, 35974/97 & 36337/97 ( European Court of Human Rights April 24, 2001).
Dr Michael John Pelling, Appellant v Mrs Veronica Nana Bruce-Williams, Respondent; Secretary of State for Constitutional Affairs, Interested Party,  EWCA Civ) 845 (Court of Appeal 2004).
Kent County Council v Mother, Father and B,  EWHC 411 (Fam) (High Court 2004).
Charman v Charman,  EWCA Civ 1791 (Court of Appeal December 11, 2006).
Clayton v Clayton,  EWCA Civ 878 (Court of Appeal February 28, 2006).
McFarlane v McFarlane,  UKHL 24 (House of Lords 2006).
Norfolk County Council v Nicola Webster and 5 Others,  EWHC 2733 (Fam) (High Court November 1, 2006).
Re Brandon Webster (A Child) sub nom Norfolk County Council v Nicola Webster & Ors,  EWHC 2733 (Fam) (High Court 2006).
Re W (Children),  EWCA Civ 59 (Court of Appeal 2009b).
Bentham, J. (1843). Draught of a New Plan for the Organisation of the Judicial Establishment. In France, The Works of Jeremy Bentham (Vol. IV, p. 316). Edinburgh: Tait.
Brophy, J. (2008). The Children’s Commissioner for England’s report on: The views of children and young people regarding media access to family courts . Oxford: The Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work, University of Oxford.
Butler-Sloss, E. (2004, November). Supplementary written evidence submitted to the Select Committee on Constitutional Affairs.
Department for Constitutional Affairs. (2005). Disclosure of Information in Family Proceedings Cases Involving Children. London: The Stationery Office.
Department for Constitutional Affairs Select Committee. (2006). Family Justice: the operation of the family courts. London: The Stationery Office.
Mears, M. (2005). Institutional Injustice: the Family Courts at Work.
Minnesota Supreme Court. (1996, September 6). Memorandum from Open Hearings Subcommittee Members: Representative Wes Skoglund, Erin Sullivan Sutton and Heidi S. Schellhas to Foster Care and Adoption Task Force.