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UK Looks To Make Family Courts Open And Accountable

Source: by Charlotte Bendall, UK Centre for Policy Studies
Posted on: 29th November 2009

New proposals were unveiled by the Ministry of Justice last week which were intended to contribute further towards the contentious opening of the family courts.

Jack Straw has tabled amendments to the Children, Schools and Families Bill which would provide the independent press with greater access to the family courts and allow judges to name paid experts “in the interest of open justice and to improve public confidence”.

If adopted, this move will be introduced by way of a two-stage process, under which the media would initially be able to report family proceedings, including placement proceedings for the first time, and thereby be allowed to name professional expert witnesses (but not social workers, unless the judge directs otherwise). Should this prove to be successful, it is hoped that an open reporting system would be adopted eighteen months later, albeit with a strict ban on the publication of the identity of the children and families involved in proceedings.

This latest move follows, and appears to build upon, the rules allowing the press to attend the family courts which were entered into force in April of this year. There had been high hopes for these rules, with many anticipating both the eradication of the secretiveness of the family courts and the introduction of public scrutiny by the independent press to the administration of justice in the courts.

However, in reality, whilst they permitted journalists to attend family courts and report, they also specifically prevented them from reporting the detail of cases, even at the end of a case. As a result, reporting is presently about the system, rather than the substance. The reforms were met with a vast amount of criticism, with many arguing that the stringent reporting restrictions imposed alongside them would make a mockery of the idea that the family courts had been, in any sense, “opened up”; indeed, Mr. Justice McFarlane, stated that the media had been put in “no better position” to evaluate the complaints of parents about what goes on within the family courts.

Journalists, such as Camilla Cavendish from the Times, also expressed disappointment that the courts would “not be open as we had expected”, and consequently that the “need to shed light in dark corners” had not be met.

The newly proposed system goes some way to address the perceived deficiencies of the earlier rules. In particular, it seems to represent a giant leap towards what might be termed “open justice”, with the media potentially being able to act as the eyes and ears of the public in reporting the detail of court proceedings. Accepting that the new proposals should increase both transparency and accountability, as is suggested by Mr. Straw, this, in turn, should engender increased public confidence in the family courts and quell concerns that injustices are occurring behind closed doors.

Indeed, the leading force towards this transparency has come from those who feel aggrieved about the way in which the courts have treated them, such as fathers who say that judges are biased against them, or parents who allege that their children have been removed on the basis of unreliable expert evidence. Should the new proposals be adopted, the public at large would finally be in a position to assess the truth of such assertions to an extent which, due to a lack of information, has not been previously possible.

The newly proposed system of naming experts has also been extolled by those such as John Hemming, a Liberal Democrat MP, for allowing for comparisons to be made between cases. This is clearly advantageous for the purpose of ensuring that they are treated in a like-for-like manner.

I’d argue that the newly proposed reforms come closer than ever towards achieving a balance between the need to make family courts open and accountable and protecting the welfare of children and families who are involved in such proceedings. The proposals have been criticised on the ground that experts, such as doctors, may be inhibited in their reports. Indeed, one judge commented that, were they to be implemented, “I don’t think doctors would want to do the work” for fear of being named and shamed. It is also uncertain as to how much interest the media would take in the family courts even if they were to be provided with further access; a widespread observation since April has been that they have shown little interest except in big-issue cases, and this has also been the experience in New Zealand, where the family courts were “opened” to the media a few years ago.

Nevertheless, the proposed reforms represent, at least, a significant step towards greater accessibility to, and understanding of, the family courts.

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