Family justice: what we can do to protect our children
A ten-point plan to make our courts system fairer
Camilla Cavendish, The Times Online, July 9 2008
Over the past three days The Times has set out some of the ways in which it fears the child protection system is being subverted by forces that are largely unaccountable. We believe that the Children Act has unintentionally handed enormous power to local authorities and experts, which some are using arbitrarily. And that secrecy keeps injustices from public view.
Opening up the system sounds easier than it is. Yet there are concerns that it could lead to paediatricians and other experts being vilified and refusing to do child protection work, social workers becoming demoralised and the exposure of families’ private troubles. That journalists would not keep confidences. That reports by local papers might inadvertently add to the suffering of children by revealing their identities to people living near by.
These are valid concerns. I know two couples who have adopted children in very difficult circumstances. The natural parents of those children are quite unable to care for them, but they are also vengeful. Those couples and those children should not have to live in fear of being tracked down. They have made me think very carefully about the nuances of this. But I feel that these considerations can no longer outweigh the risk of grave injustices being perpetrated against children. And that we can put safeguards in place that will work.
When the Constitutional Affairs Select Committee heard evidence on this issue three years ago, many of the respondents seemed to assume that media access would inevitably hurt children. That is wrong. In the Court of Appeal almost all family law hearings are in public with reporting restrictions imposed. The press attends family proceedings in magistrates’ courts, again with reporting restrictions. The press simply does not identify children when it is illegal to do so. Many of my articles may seem incomplete precisely because I am bending over backwards not to publish information that might identify the child.
The Australian and Canadian family court systems are open and transparent. Children’s identities are protected but judgments are public, and so is the evidence on which they are based. That means that justice can be done, and be seen to be done. Their press apparently takes no interest at all in the majority of cases. This would surely be the same here.
The Constitutional Affairs Select Committee took the view that courts should be opened in all but exceptional circumstances. In July 2006, the Government seemed to agree. It published a consultation paper stating that greater openness was required in family court proceedings “so that people can understand, better scrutinise decisions and have greater confidence”. It proposed that the media should attend proceedings “on behalf of and for the benefit of the public”, with reporting restrictions to keep the parties anonymous. Almost a year later, the Lord Chancellor, Lord Falconer of Thoroton, rowed back, citing a survey of 200 children in which a slender majority had expressed anxiety about letting the media into the family courts. He said that openness would be improved “not by numbers or types of people going in to the courts, but by the amount and quality of information coming out of the courts”. A second consultation paper proposed keeping courts closed, but encouraged judges to release anonymised judgments.
That was a tragic loss of nerve. For there is no way that the growing lack of public confidence in the system can be solved by the publication of a bit more information that the authorities decide to let us see. Publishing an anonymised judgment without the evidence will not let ordinary citizens see what is being done in their name. We cannot tell, for example, whether witness X repeatedly goes beyond their remit or offers hearsay evidence. We cannot tell whether local authority B or judge C repeatedly gives X’s evidence undue weight. If it was felt too risky to reveal their names, I would suggest that each expert witness could be given a unique code. That would deter the sensationalist hack from malice, but would enable the determined truth-seeker to track the behaviour of individuals over time, and hold them to account.
Many of the children’s charities and lawyers who lobby against openness are trying to protect vulnerable people from damaging publicity. It is a tricky balancing act. But the clincher for me is this. One of the most draconian decisions the State makes is to deprive a child of a parent’s love and care. Removing a child from its family is not simply a private matter. It is a decision that demands the very highest standards of accountability and transparency.
I believe that wholesale reforms are needed, which can be summed up in ten points:
1. Open family courts to the press in all but exceptional circumstances (as recommended by the Constitutional Affairs Select Committee).
2.Let any parent or carer accused of abuse call any witnesses they need in their defence. At the moment, they are routinely refused permission to do so.
3.Give automatic permission for parents who are refused legal aid to get a lay adviser to help them present their case. This is routinely refused.
4.Remove the restrictions that prevent families from talking about their case (as recommended by the Constitutional Affairs Select Committee).
5.Review the definition of “emotional abuse” across local authorities, to make sure that it cannot become a catch-all for overzealous officials.
6.Provide an automatic right for parents to receive copies of case conference notes and all evidence used against them in court, just as they would in a criminal trial.
7.Create an independent body to oversee the actions of social services, with proper sanctions. If that body is to be the General Social Care Council, make it easier for parents to go directly to that body rather than having to face delays from the local authority.
8.Let children in care waive their right to privacy if they wish to speak out. For gagging children is surely not consistent with promoting their welfare.
9.Restructure CAFCASS, the Family Court Advisory Service, from being an organisation that reports on the parents to the courts to one that actively promotes the parenting needs of children. The primary focus should cease to be assisting the court process. It should be diverting parents away from contested hearings into the making of parenting plans.
10.Review the recent legal aid cut-backs that are deterring lawyers from taking on these complex family cases. It is quite wrong that desperate parents are unable to find a lawyer to help them in their time of need.
Thank you for listening. As Jeremy Bentham said, where there is no publicity, there is no justice. If you support these ideas, please do go online, support our campaign and e-mail your MP.