Open
or shut case
Interviews by Mark Gould
http://society.guardian.co.uk/societyguardian/story/0,,1755965,00.html
The
Guardian - Wednesday 19th April 2006
The
government has delayed a consultation on opening up the family courts
by allowing cases to be heard in public. Is more transparency required?
Ian
Johnston
Director, British Association of Social Workers
I
have some sympathy with the objectives of removing barriers and sharing
information, but this is a sensitive area and more openness raises serious
questions. Children have a right to be protected from information being
inappropriately shared with others. There are anomalies in the family
court system. If it seems reasonable to be able to complain to the General
Medical Council when an expert witness's conduct has been questionable
[in the criminal courts], why can't you complain to the General Social
Care Council about a social worker who is an expert witness [in the
family courts]? The most important aspect is the child's right to be
protected. Family courts deal with care proceedings, abuse, neglect
and other contentious issues. It isn't helpful for a lot of that to
be publicly available. Child sexual abusers may more readily gain access
to information they could use for their own gratification. The way forward
would be to remove this from any politically-driven process and instigate
an inquiry under an independent expert, but the ultimate aim should
be protecting the child.
Sarah
Harman
Solicitor, founder of Families Action for Court Transparency and Openness
There have been concerns about how family court judges evaluate expert
evidence they rely on, but how real these concerns are can never be
more than anecdotal because of the secrecy under which courts operate.
In the criminal courts, experts have to be identified, and the suggestion
that a witness should give evidence on an anonymised basis would be
considered scandalous. In the family courts, experts can propound untested
theories, which the judges may rely on in deciding to separate children
from their families on a permanent basis. An example is the "Munchausen
syndrome by proxy" theory put forward by Professor Sir Roy Meadow
and now discredited. Without even meeting children or their families,
Meadow and his acolytes would advise the courts that parents might harm
their children to draw attention to themselves. The research on which
such theories were based was highly suspect and was successfully challenged
in the criminal cases against Sally Clark and Angela Canning. We do
not know how many family cases have been decided on such dubious evidence.
Courts in Scotland, New Zealand and Canada are open to media reporting,
and children in those jurisdictions appear to be unharmed by the transparency.
Children need to be protected from being identified, as this might expose
them and their families to unwelcome gossip. But openly discussing the
issues involved in child protection cases is a different matter entirely,
and a democratic society cannot afford to have such important decisions
made behind closed doors. Family court judges insist they are in favour
of more transparency, but are still reluctant to make judgments public,
except in rare circumstances.
Glyn
Farrow
Chief executive, Children Law UK
There
may be some cases where it would be suitable to include the press and
public, but for others it would be disastrous. It is terribly delicate
and we need to get it right. To do that we need more research. We need
to know about what happens in other jurisdictions and countries. In
Scandinavia, they have a totally different approach to family courts,
and I would like to know how successful they are. In Scotland, courts
are more open to members of the family, but you can't just wander in
like getting a grandstand seat for a showpiece trial at the Old Bailey.
I think we probably will have some form of openness in family courts
at some stage, but we need to take our time over it. The interests of
the child are paramount.
Adrienne
Burgess
Research and policy officer, Fathers Direct
It
seems incredible now, but in the early days of our English Parliament
anyone disclosing "account of its debates" could be prosecuted,
and it wasn't until 1803 that the press was admitted. Future generations
will be similarly shocked that English family court proceedings were,
in the early 21st century, conducted in camera. The aim of protecting
family and child privacy is laudable, but the consequences of this secrecy
have been disastrous: little scrutiny, public accountability or consistency
in process or outcome; universal ignorance of regional and other variations;
and the fuelling of fantasies about cruelty and injustice polarised
along gender lines, as so open happens with divorcing couples. Thus
women's groups have battled it out with the fathers' rights groups -
one lining up to represent lone mothers as being regularly obliged to
release terrified children into the care of abusive fathers, the other
claiming "anti-father" bias throughout the land. That either
scenario should prevail is shocking enough; that we don't know how often
they do is equally dreadful. Only when family court proceedings are
open to public scrutiny - with appropriate safeguards for child privacy
- will we be able to begin normalising the process of separation and
divorce, and establishing and monitoring agreed standards for all the
parties involved.
Layton
Bevan
Families Anti-Social Services Inquiries
Harriet
Harman [minister for constitutional affairs] should immediately announce
that parents prosecuted in the family courts and who were acquitted
or had cases dismissed, or were awarded costs against the local authority,
could disclose all their papers to the press. Current laws prevent anyone
who feels they have been unjustly treated from complaining publicly.
No parent or family member claiming that they have suffered an injustice
should be restrained by secrecy rules from making public their own names
or any details of family court proceedings. Unless there is a genuine
intention to come clean and admit that the purpose of secrecy is to
protect the social workers, paediatricians and other expert witnesses,
utterances of "transparency" will be seen for what they are:
"spin". It is quite absurd that officials can accuse parents
and children, and then, in a secret court, gain further anonymity, while
simultaneously being handsomely paid by the state for every aspect of
their court appearance and their reports.
Anthony
Douglas
Chief executive, Children and Family Court Advisory and Support Service
The real question is: do the family courts make the right decisions
for individual children? Outcome studies of family court decisions are
fewer than for other parts of the justice system. The test of a decision
is whether an individual child is more secure, safer, happier, healthier,
better educated, and has stronger, lasting attachments. What happens
earlier on to positively sort out issues without going to court matters
more, as does ensuring support for everyone involved to make a court
order work. Opening up the family courts in a way that protects the
identity of individual children is important. We are uncomfortable with
what is happening close to home, and most risks for children are in
the home. So, yes to transparency - but transparency to advance the
needs, wishes, feelings and rights of children.
