Restoring Public Confidence
We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.
James Munby (Kent County Council v Mother, Father and B, 2004)
Following the two seminal cases of Clayton and Webster the Department for Constitutional Affairs (DCA) launched a consultation in September 2006 on the issue of opening up the family courts to the public and press. The consultation invited contributions from interested parties, and set up two internet fora to which adults and children could post their comments. Responses were carefully steered in pre-determined directions and substantially censored. Public confidence was predictably low and the consultation itself was widely viewed as a PR exercise; the adult forum netted around 200 responses, and the children’s about 30, some of which were manifestly from adults. The consultation culminated in a conference held in London on 30th October. The Government’s view was represented by Harriet Harman and that of the judiciary by Nicholas Wall.
Wall’s speech illustrates the dilemma the Government and family judiciary faced: he professed himself on the one hand in favour of open justice and press freedom, but was quite clearly alarmed by the idea that either press or public – whom he held in equal contempt – should have any routine right of access. He explained the justification for open justice was to serve the system: to enable informed and proper public scrutiny of the administration of justice, to facilitate informed public knowledge, understanding and discussion of the important social, medical and ethical issues which are litigated in the family justice system, and to facilitate the dissemination of information useful to other professions and organisations in the multi-disciplinary working of family law. He showed no understanding at all of the vital role open justice plays in holding the system and its employees to account.
He acknowledged the public should have access to other courts, ‘The actions of public authorities directly related to matters such as arrest, detention and the collection of evidence must all be open to public scrutiny’. Why, then, should the actions of public authorities directly related to matters such as care orders, forced adoption, denial of parental contact, etc., be any different? There are, he said, two reasons: the presence of the public would be likely to inhibit the parties and their witnesses and, provided there is the opportunity for responsible media reporting of the proceedings, the public’s presence would serve no purpose in the public interest. The first is a reiteration of the European Court of Human Rights position (Chapter Ten) and unsupported by evidence; the second is an opinion, and demonstrates the paucity of the argument against openness; Wall’s real fear lay in his distrust of the public, ‘it is to guard against the public’s sometimes prurient curiosity that I am opposed to opening up family proceedings to members of the public’.
He would grant entry, therefore, only to the press, employing a carefully controlled system in which they would have access only on the basis of ‘clear ground rules about what they can and cannot report’. In more sensitive cases they would be issued with carefully vetted ‘anonymised’ press releases. But Wall’s contempt for the press was only a little less than his for the public, ‘I remain permanently dispirited about the way in which the media seize on family disputes involving the rich or those otherwise perceived as celebrities’.
Citing coverage by the Daily Mail of a case involving neither the rich nor celebrities (Re H (Freeing Orders: Publicity), 2005) Wall said his principal aim was to prevent tendentious or sensationalist reporting and suggested the judiciary should ensure ‘the issue in question is presented to the press in a way in which the press can properly use it’. Thus revealing his desire to control which cases were covered and how they were presented, and failing to understand that the public needed to know whether judges were doing their jobs properly. Wall expected the press to be the mouthpiece through which the judiciary could create an illusion of public confidence. The Daily Mail defended itself, ‘We thought then – and we still do – that the court’s decision was cruelly wrong’ (Daily Mail, 2006). Columnist Melanie Phillips wrote that the report, ‘brought to light the hitherto unrecognised scandal of social workers routinely removing children from their families on account of nothing more than the presumed impact upon them of their parents’ low IQ’ (Phillips, 2006). She continued,
Incidentally, the Press reporting of this case made clear that only the mother had a low IQ; the father was mistakenly classified as such by social services.
This error was itself only brought to light by the ‘tendentious and illicit’ reporting of this case.
Is it not more than a little worrying, therefore, that a Lord Justice of Appeal, threatening to fetter Press freedom because of ‘distorted’ reporting, himself misreported the media and also failed to note the sloppiness of the social workers’ false description of the father in the case?
Harriet Harman, Minister of State at the Department for Constitutional Affairs, then began (Harman, 2006),
Taking a child from its mother and placing it for adoption changes lives – and changes them irrevocably. That decision will affect, for the rest of their lives, the child, the child’s mother (and sometimes father).
Questioned from the floor by veteran campaigner Ray Barry (chairman of the splinter group Real Fathers for Justice) on her evident bias against fathers, she replied unconvincingly that male on female violence is more likely to result in death and that in her book ‘it’s the body count that matters’. Her speech was platitudinous and repeated the complacent Government position that there really isn’t very much it can do about all this – ‘Public policy cannot make men and women happy together in their relationships’, or, ‘Everyone agrees that it’s better for children when adults can agree about their care’.
The consultation process was driven not by any concern for greater justice, but by the awareness that public confidence in the system was at crisis point. Harman identified three areas of disquiet: the failure to facilitate contact, the failure to protect, and enforced adoption. For her the problem was the public’s lack of appreciation: ‘How can we ensure that the important work of the family courts is understood and valued?’ Her solution was the same as Wall’s: ‘Allowing the press in, and others in on application to the court. But with reporting restrictions which guarantee anonymity. And we need to ensure that we have tough penalties for those who overstep the mark’. Penalties would include the removal of accreditation from journalists who published objectionable reports. She planned to wait and see what conclusions New Zealand would come to when they reviewed their new system later in the year and then to follow this with a new Family Justice Bill; Melanie Phillips again:
Permitting only an approved reporting of proceedings would open the way to the Press being forced to censor itself in order to keep on the right side of the judges – thus producing a truly distorted picture with a likely collapse altogether of public confidence (Phillips, 2006).
Perhaps the most startling revelations of the conference were those from 16-year-old Tammy Coulter who was removed from her mother at the age of 7 months and adopted; she said (Coulter, 2006),
The judge who heard my case made his decision on the basis that social services had delayed my case for over two and a half years. On reading his decision to my mum (he stated), ‘Miss Coulter, if I return your daughter home to you, you will be a stranger to her’, and on that decision I was freed for adoption and my whole future was completely changed… however my foster parents and my adoptive parents were also strangers.
Finding out that you are adopted is one of the worst feelings in the world because you feel that all your identity you have known of yourself is a lie; for example your whole childhood and personality.
The detrimental emotional effects and the separation, has on children torn apart from their birth families, lasts a lifetime.
Tammy’s case shows how false are the assumptions of the industry that children can be reallocated at its whim. The ties between children and their parents remain extraordinarily strong, and Tammy was eventually reunited with her mother and siblings; she condemned the decisions made in family courts which are founded on opinions and not on facts, and are made beyond their professional competence by unqualified personnel. She showed the routine removal of children from families to be the most damaging solution and recommended greater support for families where low IQ, depression or domestic violence was an issue,
[The] slow integration of a child back with its natural family should be paramount and decisions to take away the child should be the last resort.
Seeking a compromise, the Government turned to New Zealand, where a new system allowing accredited journalists into the courts had been pioneered in July 2005. The British Lord Chancellor, Charlie Falconer, travelled to New Zealand to see for himself:
One of the things I am very keen to see while I am here is the arrangements you make for letting people come and watch what is going on in family courts.
We’ve had in England and Wales a large number of cases in which, particularly fathers, have alleged that the system has not been fair to them [sic].
The press coming in means nobody can say it’s being done behind closed doors.
The New Zealand arrangement was enabled by the Care of Children Act 2004; details were agreed between the Ministry of Justice and the Newspapers Publishers Association: any organisation applying for accreditation of an employee had to have a code of professional standards and a mechanism for dealing with complaints. The response of the media was not overwhelming. The NZ Justice Ministry reported that in the first 12 months after the Act there were only 40 requests to attend, which resulted in 12 instances when a journalist was recorded as attending, 20 instances when no journalist attended, and 8 where media attendance was not recorded. Journalists who had sat through hearings had not found them particularly news-worthy and had not witnessed the bias and prejudice for which they had hoped. It isn’t good use of a journalist’s time to sit, possibly for days, through such a hearing. A report in March 2007 indicated no increase in the level of reporting on custody proceedings and that opening the family court to media scrutiny had done little to improve public understanding (Cheer, Caldwell, & Tully, 2007). The reasons identified for the lack of media interest were ‘a combination of a lack of high-profile cases; the time already spent in the courts; and the suppression of orders which dilute public interest’. One reporter stated,
Because the limitations of reporting mean we can’t be open, we don’t go. What we have is a half-arsed approach to the Family Court. We can see a little bit but can’t report most of it.
The report concluded,
The door to the Family Court is open, but the media has not gone through. Some of the reasons for this are practical limits imposed within the highly competitive media sector. However, others appear to be lost opportunities or failure to capitalise on or adapt to new sources of information. Meanwhile, protests about the Family Court continue. While the media could assist public understanding of the work of the court by taking more advantage of the new openness, it will be assisted in this if the plans for opening the court more fully are brought to fruition.
Peter Boshier, principle family court judge, complained bitterly that the style of media reporting was still antagonistic and unbalanced, with assertions made by litigants which could not be challenged. He alleged, for example, that the media presented the views of fathers, but not those of the mothers or children. Reporters had the right to read the courts’ judgements, but seldom did so. For their part, equal parenting organisations in New Zealand believed nothing had changed; they even quoted one family court judge, Christina Inglis, admitting the system was biased against fathers. They demanded shared parenting as a starting point, a far higher standard of evidence when allegations were made, legislation to prevent a parent taking their child out of the family home; and they wanted judges to be better trained and to follow the law rather than invent it.
Campaigning against the family courts increased following the Care of Children Act, with an emphasis on targeting individuals’ homes – they called this ‘bothering’. In May 2006, Jim Bagnall, Children and Family spokesperson for the Republic of New Zealand Party, advocated the complete abolition of the family court. He said family lawyers encouraged false allegations of abuse with impunity, and made thousands from alienating children from their fathers. He would replace the court with a mediation service based on equality.
On 22nd March 2007 the responses to the UK consultation were published (Department for Constitutional Affairs, 2007). What emerged was how at odds the judicial and legal professions were with the media and public. For example, on the issue of allowing the media to attend proceedings as of right, the media were 100% in favour and the public 72%; the legal profession and judiciary were respectively 78% and 73% opposed – remember those figures. On the issue of allowing others to attend, the media and public were 100% and 92% in favour and the judiciary 61% opposed.
The Lord Chancellor had given a speech at Gray’s Inn the day before which was a master-class in circumlocution (Falconer, 2007). He offered his definition of openness as the means by which government delivers information to the public, by which better government can be brought about, and by which the relationship between the citizen and the state can be improved, ‘Openness promotes good government; good government promotes openness’. But this openness must be of a specific and circumscribed kind, ‘Unfettered, unregulated access to information does not bring about good government. Nor is it in the public interest’. Limits to openness must be established, and who better to do so than the judiciary? Where there is any risk of justice being impaired by being seen to be done, he said, then justice must take priority over openness. Thus some courts must remain closed and where they are open there must be restrictions. He came then to the responses to the consultation and to those of the children involved,
Overwhelmingly they rejected the idea – with the clear support of key third-party organisations speaking up for the interests of children. They are clear – crystal clear – that they do not want the family court filled with people who have no involvement in proceedings.
In fact of a group of children who attended an event in Leicester on 16th October 2006 organised by the Office of the Children’s Rights Director 78% approved allowing the press to attend if the parties agreed; of another group consulted on 30th September by the Office of the Children’s Commissioner 53% agreed the public should be allowed into the courts if they could show a legitimate interest. One of the ‘key third-party organisations’ was NAGALRO, the union representing 600 CAFCASS staff. Needless to say, they didn’t want the public to see what they were up to; they said, but without justification,
NAGALRO believes strongly that increased publicity about family court cases will generally be detrimental to the interests of children in these cases.
Falconer concluded, somewhat defensively but most enlighteningly, ‘When government seeks to restrict or regulate the information that is accessible it is not a rejection of openness. It is not evasiveness or secrecy – it is good government’. Camilla Cavendish in the Times was scandalised:
That is a bizarre interpretation of the consultation findings… One can only conclude that he was expressing his own view, not that of children (Cavendish, 2007).
Thus was Government policy legitimised on the falsely represented opinions of 187 court-damaged children, and the Government took its abuse of children to new depths. In June the Ministry of Justice launched a further consultation exercise to consider four additional details pertaining to the transparency of the family courts (Ministry of Justice/Her Majesty’s Courts Service, 2006). One of these asked whether, unless there were welfare grounds to the contrary, the identity of the child should be protected beyond the conclusion of a case. In the distorted thinking of the Government the child’s welfare had become synonymous with anonymity.
In December the Government announced a ‘new approach’ to openness in family law through the publication of Family Justice in View (Ministry of Justice, 2007a). This document professed, ‘We propose to change the law to allow access to the court so that family justice can be seen’, and it is in the light of this that the arrangements must be understood which have allowed access to the family courts by accredited journalists since April 2009. As can be seen from the forgoing, the reason for these changes was primarily to place tighter controls on the information coming out of the family courts and halt the haemorrhaging of public confidence; the desire to protect the courts from scrutiny and its personnel from accountability remained.
The changes introduced access by the media broadly following the model adopted unsuccessfully in New Zealand. Its efficacy was illustrated by the BBC journalist Sanchia Berg who spent two weeks in the family courts and produced a report for Radio 4’s Today programme on 24th June headed, Family Court doors remain closed. She said, ‘because I wasn’t allowed access to the experts’ reports – so far no-one has – I could not really assess the case for myself… I didn’t have the full picture. Jeremy Rosenblatt, a leading barrister in the Family Courts, told me that no journalist could fully grasp a case without those expert reports’. Because the changes only applied to the Family Proceeding Rules they only affected attendance and had no bearing on reporting. Thus journalists were able to attend (if the judge approved and the parties did not object) but were not able to report on proceedings other than in a very generalised way, and even then, only with the court’s consent.
The second reform was to enable parties to disclose more information than previously for the purposes of seeking advice or support, mediation or the investigation of a complaint. They were also able to disclose anonymised information for the purposes of training and research.
Finally, courts in Leeds, Wolverhampton and Cardiff were to publish online an anonymised written record of their decisions. These judgements were, as Justice Minister Jack Straw admitted, carefully selected and it is difficult to see, therefore, how the measure was to restore confidence. They were all public law cases, and though no explanation was given as to why these, and not other, cases were published, they were, for the most part, unremarkable applications for care and placement orders, either unopposed, or unconvincingly opposed, so that all applications were granted. They did not reveal anything about those aspects of the courts which had caused the loss of confidence the exercise was designed to restore.
The Justice Minister, Bridget Prentice, presented the measures as a move towards greater transparency while again misrepresenting the results of the Consultation, ‘Some of the judges were in favour of giving media access as of right and others were not’. Sir Mark Potter, President of the Family Division, went even further, ‘The broad view of the judiciary was that the media should be admitted to family proceedings’ (Gibb, 2008). This, of course, was untrue, as you will recall, three quarters of the judiciary had rejected media access. The result of the new rules was chaotic, with court staff seemingly unaware of them, lawyers resistant, and those few journalists who did attend insistent on their new rights. The Newspaper Society expressed its view that ‘these proposals are a grossly backward step that will do nothing to restore public confidence in the family courts’.
On 7th April 2010 the Lords passed Part 2 of the Children, Schools and Families Bill which, Labour claimed, would extend the relaxation of reporting restrictions, allowing journalists to report more detail of proceedings and possibly to report some of the documents in cases. The Bill received Royal Assent on the 8th, just before the dissolution of Parliament on the 12th in readiness for the General Election. The new Coalition Government deferred putting the Act into operation pending the outcome of the Family Justice Review. As written the Act would have repealed both Section 12(1)(a) of the Administration of Justice Act 1960, which prohibits the publication of information relating to child proceedings heard in private, and Section 97 of the Children Act 1989, which makes it a criminal offence to publish information identifying or likely to identify a child as subject to proceedings. This legislation would have been replaced by a general prohibition on the publication of information from family cases conducted in private (i.e. from which the general public are excluded), whether child related or not.
The Act was far more restrictive than the law it was intended to replace, and would have made identification of parties, witnesses (other than expert witnesses) and children or disclosure of substantive information in most kinds of family proceedings a contempt of court. This would have reversed the findings in both Clayton v Clayton and Clibbery v Allen; the latter case established that the exclusion of the public from a court must be justified, and that the exclusion of the public from cases other than children and ancillary relief proceedings does not itself have the consequence of a ban on later publication (Clibbery v Allen, 2002). Publication of a judgement in non-child proceedings which was currently permitted would have been subject to publication only by leave of the court. A party would only have been able to publish worthless trivia, because they could not have included information likely to identify themselves, other parties or the child.
Accredited news organisations would have required leave of the court to publish orders or judgements. No identification information could have been published without leave. News organisations would have been able to acquire information to be published from a party, but only by being present in court. Currently the media are free to publish any information on non-child proceedings from any source without being present in court (as established in Clibbery); under the new rules they would have lost this freedom, and Ms Clibbery would no longer have been able to talk to the press about her case or publicise any injustice suffered.
Labour’s averred opening up of the family courts was revealed as a cruel hoax: a confidence trick, while Jack Straw’s pledge on ITV’s This Morningnot to reverse Clayton was exposed as a lie. The Times legal editor Frances Gibb said family law would have taken ‘a long, long step backward’. The Coalition Government finally decided to abandon Part 2 of the Children, Schools and Families Act and the entire consultation process ended, having achieved nothing more than to reveal the preoccupation of all vested interests to keep the system secret.
In 2013 James Munby, champion of open justice and newly-appointed President of the Family Division, issued new guidance on openness, directing that in contact and care cases judgements should be published unless there were ‘compelling reasons’ to keep details out of the public domain (Munby, 2013a). It was about as far as he could go without new legislation, but the identity of local authorities and expert witnesses still remained obscured behind a veil of anonymity.
Cavendish, C. (2007, March 29). The forces of secrecy are prevailing. The Times.
Cheer, U., Caldwell, J., & Tully, J. (2007). The family court, families and the public gaze. University of Canterbury, NZ.
Clibbery v Allen,  1FLR 565 CA (Court of Appeal 2002).
Coulter, T. (2006). In the best interest of the child. Care and Health Conference.
Daily Mail. (2006, November 1). Comment. Daily Mail.
Department for Constitutional Affairs. (2007). Confidence and confidentiality: Improving transparency and privacy in family courts: Response to Consultation.
Falconer, C. (2007). Lord Williams of Mostyn Memorial Lecture, Gray’s Inn. London.
Gibb, F. (2008, January 9). Family courts: everybody out. The Times.
Harman, H. (2006). Listening to children: in open and accountable family courts. Care and Health Conference.
Kent County Council v Mother, Father and B,  EWHC 411 (Fam) (2004).
Ministry of Justice. (2007a). Family Justice in View. London: Stationery Office.
Ministry of Justice/Her Majesty’s Courts Service. (2006). Confidence and Confidentiality: Openness in family courts – a new approach. London: Stationery Office.
Munby, J. (2013a, July 12). Transparency in the Family Courts and the Court of Protection: Publication of Judgments. Ministry of Justice.
Phillips, M. (2006, November 1). You can’t silence justice. Daily Mail.
Re H (Freeing Orders: Publicity),  EWCA Civ 1325 (Court of Appeal 2005).