Justice for Families
An enormous response to the articles in The Times highlights widespread concern over the secrecy that shrouds the family courts
Leading Article, The Times Online, July 12 2008
It is five days since The Times launched its campaign to open up the family courts and make social services more accountable for the removal of children from their families. The enormous response so far has bolstered our view that this is a vital debate. Many parents, but also lawyers, social workers and members of the medical profession have written in to sound the alarm about different aspects of the child protection system.
Not everyone supports our position. One common criticism was put eloquently by Sir Mark Potter, Britain’s most-senior family judge, in The Times yesterday. He argued that the family courts are not “secret”, but “private”, operating in what he described as “a minefield of complexity and emotion”. And that most families desire privacy, because family hearings expose deeply personal details.
This is the same argument that Lord Falconer of Thoroton used last year to explain why the Government rejected the recommendations of the Constitutional Affairs Select Committee for opening the family courts and allowing parents to talk about their cases. This week Bridget Prentice, Minister of Justice, has said that “the right of the public to know what is happening has to be balanced with a child’s right to privacy”. But the two should not be mutually exclusive. With proper reporting restrictions in place, it is perfectly possible to have accountability and to keep a child’s details confidential. That is what happens in Canada and Australia, where the courts are open. It is also the case in the Court of Appeal, where most family hearings are held in public.
There is something very wrong when parents are gagged to “protect” their children, while those same children are routinely pictured and named in adoption magazines. Removing a child from his or her family is not just a private matter. It is a matter for all society. That is why the Council of Europe has taken the extraordinary step this week of launching an investigation into the secrecy of family law in England and Wales.
Sir Mark Potter and many other judges support the Government’s proposal that all judgments should be made public in anonymised form, in cases where children are removed. That is a welcome step. But it does not go far enough. Without access to the evidence, it will be impossible to discover whether certain expert witnesses or social workers are making errors repeatedly. The system should meet the very highest standards of accountability, given that its decisions can destroy or save lives.
The Government has committed this week to publishing new proposals after the summer. This is a welcome end to the nine-month limbo since the deadline for its last consultation. But bold proposals are needed to reform a system that is in disarray. These include restructuring Cafcass, the Family Court Advisory Service, to reviewing the cutbacks in legal aid. Parents should have an automatic right to receive copies of the evidence used against them in court, just as they would in a criminal trial. It is outrageous that this point should have to be made at all. A large number of readers have told The Times this week that they have been denied access to papers that they need to mount an appeal. It is a matter of deep concern that parents accused of child abuse have fewer rights than those accused of murder.
Some of those who work in child protection are understandably upset at what they see as an attack on their competence, driven by aggrieved parents who give only one side of the story. But the growing suspicion of the authorities who are meant to support families will not be quelled by continuing to suppress information. We need both sides of the story to be told. That is why The Times will continue to shine as much light as possible on these issues in the coming weeks.