Family
Courts are more Secret than our Prisons and that must change
By
HARRIET HARMAN MINISTER FOR FAMILY JUSTICE
Mail
on Sunday - 4th June 2006
IT'S HARD
to overstate the importance of the work of the family courts, or the
difficulty of making judgments that affect people's lives for ever.
Over the more than two decades during which I have been an MP, my advice
'surgery' has seen a steady stream of constituents making heartfelt
but contradictory demands on the issue.
Women complain
that their children have been taken from them; neighbours allege child
cruelty; mothers take issue about violent ex-partners; fathers claim
they have been banned from seeing their children.
As shown
by the case of Mark and Nicky Hardingham, reported in today's Mail on
Sunday, the stakes could not be higher. To take a child from its mother
and place it for adoption can save the life of that child. But a bad
decision is no less an injustice than a wrongly imposed life sentence
- both for mother and child.
Similarly,
a father denied contact with a child suffers a terrible loss; yet in
some cases failing to prevent a father's visit can put lives at risk.
Which is all the more reason why our family courts should command the
confidence of the public and be seen to operate with fairness and compassion.
In this respect, the system is failing through its lack of openness.
Public
confidence depends on public scrutiny. Something has to be seen to be
believed and justice not only has to be done, it has to be seen to be
done. People don't understand the complexity and ' importance of the
work of the family courts - an unfortunate but inevitable consequence
of the fact that they sit in secret and make judgments behind closed
doors.
PUBLIC
confidence in any part of the legal system is necessary for its own
sake but also to ensure people affected by court judgments accept them,
and for the professions involved in the system to be respected.
I have
concluded that it is now impossible to defend a system from accusations
of bias and discrimination if it operates behind closed doors. Even
as Minister for Family Justice, I find the rules make it hard for me
to establish what is going on.
It is my
job to reassure Parliament that the family court system is working properly.
But how can I know? I can't read newspaper reports of cases; I can't
just go and sit at the back of the court, as I can - and do - in magistrates'
courts. And how can MPs hold me to account for a system they cannot
see? Parliamentary accountability for the family courts is wholly theoretical
while the system remains closed. How can the influential Constitutional
Affairs Select Committee conduct investigations into its workings?
And when
we debate family law in Parliament, neither MP’s nor Ministers can really
know what we are talking about. We have to legislate in the dark.
Her Majesty's
Inspectorate of Court Administration can't go in to the family courts
unless the court lets them; yet even the Prison Inspectorate has the
right to enter prisons to inspect without giving notice. In that respect
our family courts are more secret than our prisons.
The context
in which the family courts work has changed significantly and it is
time for us to acknowledge that many of the comfortable certainties
of family life are no longer there.
There are,
for example, many more cases in the family courts today - more than
400,000 a year. There is more divorce, more separation, more couples
living together, greater cultural diversity and growing social problems
such as drug addiction. Once, married people stayed married. Now one
in three couples divorce. Women used to have babies only in wedlock
-but, in 2004, 42 per cent of births were outside of marriage. One third
of children now live either with a lone parent or with one parent and
a step-parent.
New patterns
of family life pose new problems for the courts. Courts in the past
would rarely have had to deal .with children of parents who live in
different countries and would never, for example, have had to deal with
a child born through IVF to a woman in a lesbian civil partnership that
has collapsed.
Courts
in the past would rarely have had to deal .with children of parents
who live in different countries and would never, for example, have had
to deal with a child born through IVF to a woman in a lesbian civil
partnership that has collapsed.
ATTITUDES
have changed, too. It is now recognised that sometimes it is in a child's
best interests to live with the father, not the mother, and that sometimes
it is right to leave a child with parents who have learning difficulties
- with the right support. The main principles are no different, however.
The courts
have to make decisions when warring parents cannot agree, and work to
prevent cruelty and neglect. And each case must be judged on its merits
and in the child's interests.
But we
need to make the courts more open. Privacy is necessary to protect families
seeking justice - but privacy is not necessary to protect the courts,
which should have nothing to hide. At the same time, we must ensure
we have tough penalties for those who breach anominity restrictions
and name children.
We can't
allow a situation where confidence in the family courts grows as their
work becomes more transparent, only for it to plummet through children
or parents suffering the anguish of being identified.
So we shall
include proposals on enforcement when we publish plans to reform the
family courts next month and put them out for consultation.
We also
need to see what can be done to open up the courts in the near future,
even before we change the law.
I have
already held discussions with the most senior judge in the family court,
the President of the Family Division, on directing the High Court -
where the most serious family cases are heard - to let the Press in
to all cases (subject to reporting restrictions).
This way,
when we do come to legislate, we shall be more confident, with a clearer
sense of what the legislation that we are debating will do in practice.
The protection
of children is of the greatest importance. Only when we open the family
courts, and the Press can write about them, shall we be confident that
justice is being done in this most difficult area of law.
