Family
courts' veil of secrecy will lift to win back public confidence
Clare Dyer, legal editor
http://society.guardian.co.uk/children/story/0,1074,1657718,00.html
The
Guardian - Monday 5th December 2005
·
Reform to quell 'festering' doubts over justice system
· Judges may let public and media into hearings
The curtain
of secrecy hiding what goes on in the family courts of England and Wales
is to be lifted, after concerns from senior judges and MPs that it damages
public confidence in the administration of justice, the Guardian has
learned.
The move follows claims by parents accused of child abuse and by divorced
fathers denied the right to see their children that the courts are unaccountable
and have mishandled their cases behind closed doors.
The judges believe
that lifting the veil, while preserving the anonymity of the family,
would help dispel fears that courts are removing children from their
families on flimsy or dubious medical evidence, and that miscarriages
of justice are widespread in the family justice system.
A government
consultation paper in the spring will outline a range of options for
reform. The most radical would be to open the courts to the media and
the public, subject to the judge's right to exclude the public in particular
cases.
That would be
in line with a recommendation in February from the Commons constitutional
affairs committee, which said: "A greater degree of transparency
is required in the family courts. An obvious move would be to allow
the press and public into the family courts under appropriate reporting
restrictions and subject to the judge's discretion."
Less radical
would be to make it a rule that all judgments are published in family
cases, unless there are exceptional circumstances. At present, judges
publish judgments at their discretion if they consider them to be legally
important.
The restrictions
on publicity in England and Wales go much further than those in Scotland
and other Commonwealth countries such as Canada and Australia. Not only
are the media and public excluded from family courts - except the magistrates'
family proceedings court - but publishing anything that has happened
in a children's case, including unpublished judgments or evidence from
expert witnesses, without the judge's permission is contempt of court.
The solicitor Sarah Harman fell foul of this provision when she sent
information about a Munchausen syndrome by proxy case to her sister,
Harriet Harman, then solicitor general, as well as to her client's MP
and several journalists. The law has now been altered to allow disclosure
to MPs, but not to journalists.
Mr Justice Munby,
the judge who found Sarah Harman guilty of contempt of court, is a leading
advocate of greater openness in the family courts. His strongest criticism
of her in the case concerned - and probably the main reason why she
was suspended from practising law for three months last week by the
solicitors' disciplinary tribunal - was for misleading the court by
applying to release information without admitting that she had already
done so.
In a recent
lecture Mr Justice Munby made a strong plea for more transparency, suggesting
that the current restrictions may even breach the European convention
on human rights and concluding: "It really is time that something
was done about all this."
Because of the
secrecy, he said, "misunderstandings about how the family justice
system operates are allowed to grow and fester unchecked and uncorrected".
He added: "If
opening the family courts generally to the public is a bridge too far
- but is it, and if so why? - then surely there is a compelling case
for opening all the family courts to the press, in the way in which
the family proceedings court already is." As long as anonymity
was preserved, he suggested, "what would be the damage, either
to individual litigants or their witnesses or to the public interest,
in allowing the media access to the family courts?"
A move to greater
openness is also supported by the president of the family court division,
Sir Mark Potter, and other senior judges.
But family law
barristers have advised caution, pointing to fears that witnesses, particularly
family members and doctors, who have been vilified in the media and
who are increasingly unwilling to act as experts in childcare cases,
would be inhibited about giving evidence.
Local authorities
are also expected to oppose further relaxation of the court restrictions.
