Beyond all ideas of right and wrong there is a field – I will meet you there. Rumi
On 11th November 2014 the Family Justice Council held its 8th Annual Debate and panel discussion at Westminster Central Hall. The topic for discussion was transparency. The motion read: “Transparency in family proceedings – Is the Family Court Open for Business?”
You can download a transcript or listen to a pod cast of that debate.
The issue of opening up the family courts to (hopefully) increase public awareness and understanding of what actually goes on there has long been a matter of keen interest to the President of the Family Division. He has been commenting in judgments, speeches and ‘views’ for nearly a decade now that something needs to be done to deal with both the piecemeal and overly complex development of the law relating to privacy in family proceedings and the woeful quality of journalistic engagement with family law issues – but, as he also points out, we can’t blame journalists for poor reporting if we deny them access to proper information. If you are interested in the history of this debate, please see this post on the general principles of transparency.
The quality of the discussion which followed the FJC debate is yet another depressing example of how we as a species do not appear to either deserve or benefit from the instant and easy access we now have to a wealth of information. In my view, it underscores the need for the Transparency Project to consider carefully how we are going to meet our stated aims of promoting greater understanding of the work of the family courts.
Hurrah for the Daily Mail
We could rely on the Daily Mail to kick the debate off to a sensible start. What they managed to gain from the FJC debate was ‘fury’ at the claim by a ‘children’s tzar’ in ‘the battle for secret justice’ that children would kill themselves if the family courts were opened up. The ‘tzar’ in question was Sue Berelowitz, the Deputy Children’s Commissioner. The article begins:
Children will be pushed into committing suicide if the secretive family courts are opened to public scrutiny, a senior government official has sensationally claimed.
In just that short opening sentence, the battle lines are drawn. It is then impossible for what follows to be any real attempt at discussion. The ‘top rated’ reader’s comment proves my point:
I can think of a lot of comments on this article, non of which would be published in a British news paper. Words fail me that not only is this woman spouting this poisonous drivel,but that she has also been pushed further up the ladder on the back of her many and public failures.No child is safe with people like her in charge.
Attempt to re-position the debate
The blog from Marilyn Stowe entitled ‘Media access to the family courts; Daylight or danger?’ attempted to re-position this debate with a more balanced discussion of what ‘openness’ might mean for children involved. She reminded us of the words of Baroness Tyler, the Chair of Cafcass:
[She] spoke in favour of transparency, but also emphasized the need to protect children and the families. “Transparency,” she said, is “about being open and honest with the individuals in a family-court case.”
She continued:
“But … I also want to say very clearly what I think transparency isn’t about. I certainly don’t think it is about exposing children or their families to the glare of publicity in any way. Shining a spotlight on a child’s needs is not the same as their story being told or, even worse, sold to the world.”
So what comments did a more nuanced and sensible piece of reporting attract?
‘Anonymous’ (o the irony!) said:
The day that the family court is open and transparent in any meaningful way that will allow the public to see what is actually going on there is the day that I will eat my boot.
Instead of having any meaningful discussion of how this could be done in a responsible way, all we have are the same scoundrels debating a non-issue that will result in non-change and non-progress.
Unfortunately, journalists have only shown themselves to be half-wits in their challenge to the secrecy of the family court, because the politicians and lawyers whose job it is to know how to manipulate language best always get the better of them.
StuG said:
The usual bunk from a family law professional admirably demonstrating their linguistic framing skills. Either that, or they simply don’t get the point. If the latter, they similarly demonstrate how unfit for purpose they are. A seemingly benign blog about transparency in family courts that purports to encourage debate but wishes to keep the remit of that debate limited. Very British. Very family court.
Marilyn heralds the advent of judgments on the Bailii website. A judgement is written one person, the judge. It is their choice of how the facts of the case will be presented and how they justify their decision. Like any legal person, they have the ability to frame the case as they feel. Most family court judgments are exactly that – a justification of a decision based on feelings anecdotally supported.
There’s no comment from Marilyn about what every person involved in the family law system knows – it is nigh on impossible, given the lack of evidenciary and procedural safeguards, for any decision made in the family courts to be reliable. There is no follow up study. There is no forensic examination of cases. This is a bunch of improproperly trained, unaccountable people, making decisions in secret about children. No such system should ever have been allowed to live. The kind of person who takes a job making decisions about kids without monitoring is the last kind of person who should be considered. What you read in a judgment is not necessarily the facts of the case, but the story. Most leave out more than they put in. You do not ‘find out first hand what is really happening in the family courts.’
And here we have the problem. StuG actually makes some very reasonable points – I have myself commented on how frustrating it is to find courts making decisions relying on assertions that they cannot support. His language is certainly more reasonable than Anonymous’s casual use of strongly pejorative terms. But I suspect that he and Anonymous come from the same stable; the family court system is corrupt, debate is pointless, anyone worried about the impact of open courts on children is not genuinely concerned for the children’s welfare but more about propping up a corrupt system. But anyone worried about how judge’s may be ‘framing the case as they feel’ equally has to cast that legitimate spotlight of concern on some of the jaw droppingly appalling ‘reporting’ from various newspapers who are campaigning against ‘secret justice’.
The research about what children want
Equally, it seems unwise, to say the least for the Deputy Children’s Commissioner to present her point in the way she did. The temptation to deal in sexy, snappy soundbites must be overwhelming, as we know that is all some newspapers can cope with. But when you fail to realise just how angry and polarised your audience has become, this is a very dangerous game. Further, I am not sure that the research commissioned can bear the weight of what is put upon it due to the very small number of children sampled and no clear explanation of how they were selected.
The 2010 research had a sample of ‘more than 50’ .
For our research, we spoke to more than 50 children and young people, and what they said raises a number of serious concerns. The overwhelming view was that reporters should not be allowed into family court proceedings because the hearings address matters that are intensely private. The events discussed are painful, embarrassing and humiliating and the children and young people said their deeply personal details were the business of neither newspapers, nor the general public.
They did not trust the press to get the facts right and felt strongly that articles would be sensationalised. They were worried about being identified and fear being bullied as a result.
It is of great concern that the children and young people said that if a reporter was in court to hear the evidence, they would not speak freely to professionals charged with undertaking assessments. This could seriously impact on a judge’s ability to make difficult and often life changing decisions in the child’s best interests.
When you dig a little deeper you find the sample was actually 51 children, which I concede is ‘more than’ 50 but in my view an unnecessary and unhelpful attempt to imply that numbers were greater.
This report is based on an independent study of 51 children and young people with experience of proceedings1 and seeking their views regarding press access to and reporting of family proceedings.
The Executive Summary makes no mention of the risk of children killing themselves, so I assume that in 2010 at least this was not at the forefront of concerns. What appears to be the main issue is that the children say if their cases are going to be publicised, they will clam up and not talk to anyone.
Findings indicate substantial problems are likely to arise for children and young people and indeed clinicians and thus family courts, with serious implications for children’s safety and welfare.
Almost all the children and young people interviewed (96%) said once children are told a reporter might be in court they will be unwilling or less willing to talk to a clinician about ill-treatment or disputes about their care, or about their wishes and feeling.
The 2014 research from the Association of Lawyers to children spoke to only 11 children. The children were selected:
primarily from the NYAS young people’s consultation and participation group (a national group covering England and Wales) and from young people who had been provided with a service by NYAS. The process started with an open invitation to participate in the consultation exercise.
Thus one can assume this is a highly motivated and self selecting group. Its therefore surprising that only 11 came forward if the risks are as great as Sue Berelowitz claims.
Conclusion
And this is the problem. When the debate is reduced to two sides just shouting at each other from opposite ends of the room, all that happens is that each becomes more entrenched, more resistant to discussion. The chances of any meaningful debate or resolution of the issues slips further away. We need to reach people before they become committed to a view that the whole family court system is corrupt. There is depressing evidence about how the disconnect between information and insight can explain our ‘dangerous self righteousness’ and even lead to our basic reasoning skills becoming corrupted. See further Professor Kahan’s paper ‘Motivated Numeracy and Enlightened Self Government’ from 2013.
I hope that the Transparency Project can be part of shaping the debate – perhaps by organising some further research with a larger sample of children? Because the tensions between the need for open justice and the need to protect children ARE real and cannot simply be dismissed as the bleatings of corrupt apologists. I will end with what the Children’s Commissioner found in 2010:
Children and young people said the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will ‘cherry pick’ bits of information. They are mostly doubtful that the press will print a truthful story and are doubtful – some cynical – about an educational function.
Children fear ‘exposure’; they are afraid that personal, painful and humiliating information will ‘get out’ and they will be embarrassed. ashamed and bullied at school, in neighbourhoods and communities. This expectation is not limited to children in rural communities and is particularly relevant for those from ethnic minority communities. They also appear unconvinced about the capacity of laws and adults to protect them.
Sadly, I think that children are right to doubt that the adults can protect them, judging from the quality of debate I have seen thus far.
EDIT
I have just been tweeted what looks like some very interesting research from the USA. I will read and consider this further and maybe comeback to amend this post.
FURTHER EDIT – I have now had the chance to consider further the research linked to above.
Opening up the Family Courts – we need to take a trip to Oregon
I was recently tweeted some interesting information from the USA. The first was a literature review from 2011 of open juvenile dependency courts, prepared on behalf of the Southern Area Consortium of Human Services. The SACHS is a program of the Academy for Professional Excellence at the San Diego State University School of Social Work.
The arguments for and against opening up cases involving children set out in that review have a familiar ring. However, as of 2011, 22 US states operate either open or presumed open juvenile courts. The evidence from individual professionals about how these courts operates, appears to be positive. But there is very little by way of formal evaluated research into the impact of opening up the courts on children and concerns that what research there is has a significantly flawed methodology.
What is interesting however is that the experience of the US states appears to be that media interest remains reserved for the ‘sexy cases’ and for some states, individual professionals saw no change at all in court proceedings once they were opened.
However, we do have one state – Oregon – that is almost completely open. It would be interesting to know more about what research has been conducted or which could take place to make us all better informed.
The conclusion of the literature review is that the best system for children is ‘presumed closed’ – i.e courts can be open after particular argument and consideration of the merits.
A more detailed look at the literature review.
In 1968 most states, with the exception of Colorado, Iowa and Nebraska restricted access to their juvenile courts.
However, following amendments to federal law in 2003 and 2005 individual states were given more authority to determine their own polices regarding public access to juvenile courts.
The arguments in favour of opening the courts:
Increased visibility/ accountability: System “lacks accountability because it is a closed system” (Children’s Advocates’ Rountable, 2004, p. 1). Visibility will allow for public scrutiny.
Community inclusion: An open system allows for the opportunity of more informed policy decisions by taxpayers that are more closely based on “community standards”.
Lead to reform: Educating the public on the deficiencies of the child welfare system will lead to reform.
Proceedings involving child abuse already open: Adult criminal proceedings, which are open to the public, deal with issues central to Children in Need of Protection (CHIPS) and Termination of Parental Rights (TPR) proceedings (NCSC, 2001).
Provide uniformity: Will decrease confusion and uncertainty by professionals regarding what can be shared under confidentiality protections (Children’s Advocates’ Roundtable, 2004).
Less restrictive communication: Allows professionals the flexibility to communicate with the public in order to explain actions and clarify misinformation.
Arguments against opening the courts
Emotional Harm: Already victimized children will be further victimized by public exposure.
Interfere with rehabilitation: “Exposing …families’ dysfunctions to the public will not serve and may actually deter [the] goal” (NCSC, 2001, p.8) to rehabilitate and reunite families.
Increase reluctance to report: With fear that family, friends and the public may “learn of their most shameful experiences,” (NCSC, 2001, p.8) children will be less inclined to report abuse.
Increase exploitation: “Special interest groups and disenfranchised family members [can] use the media to further their purpose” (NCSC, 2001, p. 9).
Decrease adult accountability: Allowing adults the option to plead ‘no contest’ defeats the goal of holding adults accountable. Adults will therefore be less likely to successfully rehabilitate, as they have not accepted fault.
Biased closures: Potential abuse of closures under “exceptional circumstances” in order to protect prominent members will perpetuate mistrust in the system.
Irresponsible reporting: It is extremely difficult to ensure that children’s identifying information is not published and it is unrealistic “to expect the media to fully report on cases therefore an accurate picture of cases and system is unlikely” (NCSC, 2001, p. 9).
Sensational cases will skew perception: Cases reported by the media will most likely reflect those that may appeal to the public. This will skew perception of the system as a whole.
Consistent reporting unaffordable: Because assigning a reporter to cover juvenile cases on a regular basis may not be economically feasible, novice reporters unfamiliar with child protection hearings “may misreport cases because of insufficient familiarity with the procedures and substantive events taking place” (Patton, 2005, p.322).
Difficult to monitor media: Successfully enforcing any sort of accountability system for violation of disclosure agreements is close to impossible with the extensive amount of media and social media outlets (Patton, 2005).
The impact of these arguments appears to have been rather different in the US than the UK where the ‘arguments against’ have so far prevailed. However, in the US it seems that individual states are much more willing to look at opening their courts and there is a pretty even split between ‘closed’ and ‘open’ states.
As of 2008 only one state is fully ‘open’ (Oregon) but 21 are ‘presumed open’ (including New York and New Jersey) which means that cases must be open unless specified circumstances exist which warrant closure, for example, if the judge finds that closing a hearing would be in the best interests of the child concerned.
Courts are closed in six states (Arkansas, Connecticut, Delaware, Louisiana, Maryland, Massachusetts, and West Virginia.) and ‘presumed closed’ in 21.
Oregon is interesting as the only state that is almost completely open. According to its constitution “No court shall be secret, but justice shall be administered, openly and without purchase.”
Issues of paternity are excluded and proceedings may not be recorded or televised. The Judge also has discretion to limit access to the court room if it is getting overcrowded or impeding the hearing.
So what has the impact been on those states with open or presumed open hearings? Individual professionals in each state when questioned, reported largely positive things about opening the juvenile courts.
Views of individual professionals in the open/presumed open courts.
Some discussed the available safeguards to protect children, such as a hearing about whether or not a case should be closed, taking care about not naming children etc.
What is really interesting is that 3 states – Arizona, Minnesota and Michigan – professionals reported that opening family cases had made ‘no difference’, in essence because the media was only chasing the ‘sexy cases’ (sound familiar?).
There’s been absolutely no difference. A lot of folks came forward and fought legislation about opening with worry about information about kids and victims splattered over the press. We’ve found the press virtually never shows up. Nor outside people. No effect on cases whatsoever.
“Other than the high profile cases, the media just does not show up. [The cases are] just not sexy enough for them” (Edwards, 2004, p. 18).
“[o]ther than notorious cases, like babies found in dumpsters, the public and the media just don’t tend to follow child protection . . . . So the practical effect of [open hearings] hasn’t been all that great” (Patton, 2005, p. 322).
Further a number of individuals noted ‘positive changes’ to the way cases operated:
- Increased accountability
- Increased visibility and less restricted communication
- Community inclusion
But the plural of anecdotes isn’t data – any more structured information?
However, these experiences are the accounts of individual professionals. It seems that only two states – Minnesota and Arizona – have conducted formal, external evaluation of their state pilot programs to open the court.
Following formal evaluation one state so far – Connecticut – has decided against statewide implementation of an open juvenile court.
The Minnesota research – caution needed.
Of particular interest to the UK debate, the Minnesota research noted:
In the opinion of the child protection professionals surveyed, the content of courtroom documents, exhibits, and statements have not been significantly affected” (Cheesman, 2001, p. 3).
Further, with regard to the ‘potential for harm’
Open hearings/records have not resulted in documented direct or indirect harm to any parties involved in child protection proceedings, with the possible exception of a sensational case in Hennepin County” (Cheesman, 2001, p. 4).
With regard to the ‘responsible media’
Media reporting tends to be dominated by sensational cases, as was the case before open hearings/records. No evidence was found that open hearings/records has exacerbated this tendency” (Cheesman, 2001, p. 5).
The conclusions appear to be that the impact was largely administrative:
There are clearly costs attached to open hearings/records, especially for court administrative staff. Other costs may be borne by the parties to child protection cases, especially children and parents (and foster parents), who risk losing privacy. During the course of the data collection, the NCSC project team did not encounter any cases where harm to children or parents irrefutably resulted from open hearings/records although many professionals expressed concern for the potential of such harm.” (Cheesman, 2001, p. 85)
BUT the Minnesota study (and Arizona study which followed) was subject to very serious criticism about its methodology. For example, regarding its inadequate sample, which ‘did not include abused children, their parents, or private or court appointed psychological therapists; those most likely to perceive abused children’s trauma after publicity’
The study must therefore be viewed with caution:
The NCSC report and its findings are now widely referenced by proponents for open hearings as supporting the view that open hearings do not produce the negative effects that have been argued for by opponents to this practice. However, as indicated by the concluding thoughts of the report itself, the recommendations made by the NCSC evaluators were much more cautious and neutral than later references to the report would suggest. In addition, a number of methodological and other design flaws have been identified in the study by other researchers in area that may further limit the scope and applicability of these findings to other jurisdictions” (Patton, 2009, p. 2).
Patton has stated that the major difficulty with open court studies is the lack of appropriate analysis on the ‘psychological impact of public exposure on children’.
None of those studies has investigated PTSD in child abuse victims and no open court study has included a longitudinal analysis of the abused children’s mental health after the legal proceedings have concluded. Open court studies have merely relied, instead, on anecdotal evidence of short-term psychological trauma observed by some court personnel and advocates. (Patton, 2005, p. 313)
In 2010 the Connecticut Juvenile Access Pilot Program Advisory Board unanimously recommended against presumptively open juvenile courts:
…it was unable to find conclusive data from other states that have contemplated open courts, or have opened their court, that demonstrates open courts are effective in increasing accountability of the juvenile court system and improving services to children and families.” (Juvenile Access Pilot Program Advisory Board, 2010, p.15)
In addition, “significant concerns remained for many Board members that opening child protection proceedings could potentially harm children. These concerns were not alleviated by the experience of other states due to the lack of any reliable data from these states, however, it is noted that no state that has opened its juvenile court has since repealed their statute that provided the public with access to these proceedings.” (Juvenile Access Pilot Program Advisory Board, 2010, p.15)
The conclusion is that the best system for children is probably ‘presumably closed’
The best system is one that grants the juvenile court discretion to admit the press on a case-by-case basis for three reasons:
Empowers children by including them in the decision of whether or not the media will be included.
Requires parties seeking admittance to “articulate their rational so that only legitimately interested individuals will be permitted access” (Patton, 2005, 348).
Provides the court with leverage in relation with the media. If a reporter were to disclose identifying information, the court could deny any subsequent requests for admission.
Thanks for the link to the US research which I look forward to reading. It is much easier in the US to do big follow-up studies of the type (I think) the commentator Stu G thinks are needed. e..g there are some very large studies on how children got on after private law disputes and mediation. For a number of reasons it is very difficult indeed to undertake research about family court cases in England and Wales.
The President believes that having most judgments published on BAILII is a step toward better public understanding of the processes. It’s not a complete answer however.
There were several good points made at the FJC debate and overall the quality of debate was helpful. The Mail and the Times selecting the most sensational comments is a perfect example of the ‘cherry picking’ described by the young people quoted above.
I should probably have emphasised more that the actual FJC debate was productive and sensible. As you say, it’s what happens after that which is worrying. Some newspapers seem to know no other way of operating but to pick on the most sensational angle they can find and emphasise that. Given that very few people outside legal or social work fields are going to a) attend FJC events or b) read the transcript of the debate afterwards, we rely a lot on reporting from others to get the information out.
I haven’t yet read the American research but what has been tweeted to me so far is interesting:
a) some states have had open courts for many years
b) its not an issue because no one ever attends (! – and something I strongly suspect would happen here once people realised there wasn’t some massive conspiracy)
c) children are not killing themselves over this issue – or if they are its not seen as noteworthy and not reported as she isn’t aware of it
d) children can request that court sessions are closed on a case by case basis if the facts warrant it.
And surely (d) is our answer? Instead of a presumption against open court, a presumption in favour but rebuttable by argument that this particular case is too sensitive and may cause harm to the child if publicised.
What children want is to be with their birth parents. Closed courts can only mean one thing, keeping secret the daily injustices faced by birth parents. The evidence presented in family courts is nothing but hearsay which would never hold up in a criminal court. The balance of probability is unlawful and has no place in English law. Probability means we the court can decide whether you did it not; whether you did it or not. Lies, fabricated evidence and perjury are a daily occurence by the many so called professionals involved. The vulnerable are targeted, rather than support them, they are told their children are at risk of future emotional harm. You cannot predict future risk of emotional harm unless there has been evidence of actual risk. More often than not it is merely used to take children. It costs to much money to provide intervention.
I agree most children want to be with their parents, but sometimes children are not safe with their parents and need to be protected.
There are many other reasons for keeping family courts closed than simply ‘keeping secret daily injustices’. You may not agree with those reasons, but you need to acknowledge that many others do.
The balance of probability is perfectly lawful and is the standard of proof in most civil cases. If you think a different standard of proof should apply to family cases, this will have to be changed by Parliament.
I do not agree that ‘lies, fabricated evidence and perjury’ are a daily occurrence. But I accept that professionals can and do act in unacceptable ways. If you have evidence to support your assertion, I would like to see it.
I do not agree the vulnerable are ‘targeted’. Again, if you have evidence in support of that assertion, I would like to see it.
risk of future emotional harm must be based on actual risk arising from behaviour or circumstances which have already been proved. The case law is clear.
I agree that we need more and better focused intervention and this costs money. That is probably the main reason why people don’t get the help and support they need. I don’t agree that intervention is refused because the Government wants to ensure children are ‘taken’.
The same story is told from one end of the country to the other. Parent’s who have never hurt their child, have not been convicted of a crime accused of either hurting their child or risk of future emotional harm. Those who operate in secret, fear transparency. Why? because the scandalous practices in family courts would be revealed for the nation to see. When you speak to the many families who are losing or have lost children they are the most fragile and vulnerable, they are simply easy targets. I have seen parents with specific learning difficulties and Aspergers completely railroaded. They have been denied reasonable adjustments in hearings, and on the basis of their evidence being deemed unreliable, they lost the hearing. They had actually told the truth in way they only could. Even when faced with overwhelming evidence the Local Authority claim it makes no difference.
Future risk of emotional harm has no standing. No one can predict whether a child will be at risk of future emotional harm. This is just a catch all term to remove children from loving caring parents.
It is the lack of central government funding that forces councils to find the shortfall. Adoption and fostering is a billion dollar industry.
‘no one can predict whether a child will be at risk of future emotional harm’. Of course they can. I will quite confidently predict that if you leave a child with an abusive parent, that child is likely to suffer serious emotional harm. I can direct you to a large number of internet fora where the adult victims of such a childhood discuss their experiences and wish they had been removed from abusive parents.
Any sensible points you might have are sadly lost in your hyperbole.
‘Adoption and fostering is a billion dollar industry’. Again, please produce something other than your assertion to support this statement. If adoption and fostering are so profitable, why are many LA looking to reduce the number of care proceedings they bring, in an attempt to save money? Who exactly do you claim benefits from these ‘billions’ of ‘dollars’ ? and what jurisdiction are you talking about?
family courts should be open, not to the gutter press who cannot be trusted to act responsibly but to public scrutiny at the very least.
the laws of this land are ultimately determined by a jury and not by a judge, they and not the system are the law.
only when proceedings are open to scrutiny can the actions of the legal system and its facilitators be truly monitored, not that i suggest every single detail need be laid bare nor the identity of the children concerned revealed, right now the courts are taking steps to conduct terrorism cases where the defendants identities are protected so it isn’t unfeasible for the identities of children or even of whole families to be protected whilst allowing the details of the case insofar as the charges and the allegations to be open to public scrutiny.
this is ESPECIALLY necessary since the decision was made several years ago to remove the borders on adoption cases, a child in the UK taken from parents can be re-homed with foster parents living anywhere in Europe, i forget the actual details of the law whether it be a European law or otherwise but it may even be a case where children can be re-homed across the entire globe, WITHOUT the parents having any knowledge whatsoever of where those children might be.
in light of recent revelations regarding sexual abuse of children and pedophile rings being investigated as far up as Westminster itself and even beyond, and the current trend for child trafficking, openness of the family court system is an absolute necessity FOR the protection of children, families and justice.
i find sue berelowitz statement that “Children will be pushed into committing suicide if the secretive family courts are opened to public scrutiny” to be clinging to extremes by using psychologically emotive triggers inorder to steer proceedings.
it is true that some children may have suffered horrendous abuse and may be so badly traumatised that they attempt suicide on a regular basis anyway, it is not unworkable to protect these children to the fullest sense of the word whilst maintaining an open court system, to protect vulnerable minors from harmful press coverage there simply needs to be a ban on publishing of specifically sensitive cases.
just to ensure there is no ambiguity in what i say, i do not believe that simply because a person works for the state that they are worthy of unquestioned trust, i do not believe facilitators of the state are worthy of unquestioned trust, and that the desire for secret courts would allow those who are deserving of public distrust to abuse the system further to their own ends.
I agree with pretty much all of this Ian. I am not at all comfortable with the way the debate is going so far.
unfortunately uncomfortable is the nature of this beast, all genuine parties involved fully require protection of children and also families both from erroneous prosecution and often irreparable damage and suffering that can be caused when the paper trail gets it badly wrong, and from childrens suffering persisting when the system doesnt get it quite right, it is a fine balance that im sure can not be achieved with secret courts and facilitators beyond public scrutiny and accountability operating behind closed doors.
however realities must be faced for the benefit and to the desired outcome of protection for children.
while there remain various dubious despicable parties petitioning for the lowering of the age of sexual consent to as low as four it is quite clear that certain politically active parties would be very much favourable to a closed system where the scope of opportunity to buy corrupt judgements in their favour would be much wider.
it is imperative that those opportunities be squashed at the outset by implementing and maintaining an open court system that is under public scrutiny, for the benefit of public confidence in the applied system.
it can be done, it need not be difficult nor a mammoth task, it only requires the will to see it done.
i speak as a family member (indirect) for whom the system got it so very badly wrong.
i also speak as a family member who prevented social services and the police from allowing the continuation of an errant young female family members attendance to a known (to the authorities) child grooming residence because of ‘ongoing surveillance’, sorry but my flesh and blood will never suffer at the hands of molesters simply so the authorities can gather the evidence they need.
i was too young to affect the first instance, but it very concretely galvanised my intent to prevent the second.
not all who work within the police forces nor the social services nor even those who possess background check certificates (whatever their correct title may be) are trustworthy or involved in those professions for all the right reasons. child abusers actively seek those positions of power to facilitate their perverted desires.
its uncomfortable but it is a fact, which is why childrens courts should be open to the protections offered by society as a whole and not be allowed to be secreted away behind closed doors and hidden from view, truth and justice can only be achieved when subject to the full light of day.
those who petition for closed courts are either not trying hard enough to devise an open court system or are actively seeking closed conditions for suspect ends.
children need not suffer from an open court system if enough thought and intent are applied.
The abused do not have to worry about feeling suicidal should their case be heard in an open court. When the police are the abusers themselves, they will literally try and murder you to shut you up should you try and expose their wrongdoing, surviving to get a case to court is the hard part when it is those that are paid to protect, that are the wrongdoers!
This is another issue entirely I think. Police corruption is outside the scope of this post. But more openness and accountability in one area should help shine a light in all.
What about the healthy, loved babies and toddlers snatched from parents who have never been convicted of a crime. Criminals who have been convicted of a violent offence get to return home to their children. Parents who have never committed a crime get a life sentence of losing their children.
The evidence in a family court is hearsay and conjecture at best. Stories are gleamed from parents and then seized and elaborated upon by social workers who then collude with solicitors and barristers from both sides to ensure that both parents are in the pool of perpetrators.
Barristers turn up to court on the day and see parents for half and hour and give the most appalling advice. They never take instructions from parents. One such family was told that they could not challenge the medical evidence and told not to seek an independent medical examination. This was totally incorrect. They have now found out that the dates quoted in experts evidence are wrong, which changes the face of things. It was never challenged in court because the solicitor and barrister were inept and working the LA and guardian to have the child adopted.
If this case had been in the public domain it would never have been conducted in the way that it was. The mother who is considered disabled under the equity act and presented evidence of this was informed it didn’t matter. She could not follow the cut and thrust of proceedings due to communication difficulties, she stumbled and was slow to reply to questions. The court thought she was trying to be evasive and decided that her evidence was unreliable. This is what she should have had http://www.bdadyslexia.org.uk/employer/the-justice-system in fact she had none; she lost.
Sadly there are many people who have not been convicted of a crime who are not able to safely bring up children. if you want the law to change to mean that the State only interfere with families when a crime has been committed, you will have to campaign for Parliament to change the law.
Evidence in family courts is not simply ‘hearsay’ and ‘conjecture’. I doubt a LA could prove its case on hearsay and conjecture alone.
If a barrister turns up and sees parents for 1/2 hour and gives appalling advice, then complain about that barrister. That is totally unacceptable. But its not how I operate or how any of the other 100s of barristers I know operate.
I agree there are problems in the system. I agree there are things we need to do better/differently. But while you continue to make wild assertions that you either cannot or will not substantiate, you are not part of any solution, you are part of the problem.
The concern that children will commit suicide if the family courts are opened is an extremely bad and poor excuse for the paedophile cover ups that are happening within ALL professions and government figures involved as is being continually proved recently. More and more horrendous and sickening stories of paedophilia within the care system is continually being reported yet still covered up. Our children are being stolen at a horrendous rate purely to feed these vile humans of our society, whilst everyone agrees there are children who need to be protected, there are however children being stolen every minute of every day on the basis of flimsy excuses, fabricated evidence, hearsay and false allegations. These so-called family courts commonly known as corrupt secret courts MUST be opened it should be for the public to decide NOT the government. Children are commuting suicide because they are being stolen and begging to go home but their human rights are systematically being denied everyday. If these cases are called public proceedings they should be just that PUBLIC. We have a right to trial by jury not by corruption. The human rights act clearly states no person shall be convicted of a crime unless done so by judge and jury. The system is a joke
‘our children are being stolen at a horrendous rate purely to feed these vile humans’ – so you are saying that the only reason for care proceedings is to provide children for paedophiles to abuse? Seriously? That is the only reason you can think of?
I reject that assertion. I have had plenty of experience of parents who may well have loved their children a lot, but who had serious problems with drugs, violence and criminality. There were many good reasons why their children had to be removed, to keep them safe and alive.
it is ironic, to put it mildly, that you reject arguments against opening up the family courts as ‘extremely bad and poor excuse’ but offer some equally sensational and exaggerated assertions in support of your own argument.
I am really beginning to despair of this debate. It seems that only the two extremes have anything to say. The children, as ever, are caught in the middle and the real losers.
Hi Sarah
I don’t know if my two pennyworth will add anything but I have been reading the debate and wanted to comment. I am convinced like yourselves ,that the media will not be at all interested unless a case is scandalous. My case has been heard in the open at the Court of Appeal and it did not stop a miscarriage of justice. My children were removed by social services and the police without an EPO or police protection and placed against their and my wishes with my estranged husband, he signed a letter of expectation, I was told I could not do anything. My son was then accommodated under section 20 days later without asking my agreement,or me even knowing where he was. All is documented within the court bundle.
I was represented by very capable Counsel acting pro bono and the Lord Justice did not seem to understand the principle of children not just being taken . The judgement has not been published.
Secondly , people will not understand what is going on anyway. I had a hearing recently , I ended up being assisted by a friend just to write notes. She has been in a family court before , she also offers legal advice in a voluntary organisation and really had no clue what on earth anyone was talking about.
What makes parents so angry is the inaccuracies in reports and the inability to correct them. I do not know if all social workers lie in court but they did in my case and this is the other bone of contention.
The other problem I had was outside of court getting anyone to listen. I went through the local authority’s complaints procedure , re the unlawful removal , it was not upheld, I complained to the LGO , actually including the Nottingham case, where HHJ Munby as he was then, made it very clear that a child could not be removed at the decision of some official in a room, it was not upheld. I complained to the police, again quoting the Nottingham case , not upheld then the IPCC not upheld. Of course by then I am seen as non cooperative and shifting the blame to social services. I tried my local councillor, he was campaigning as a candidate for PCC, all he did was take my photo without my permission and place it on his campaign leaflet. He won by the way.
So where do parents turn to?
[details of current state of case edited out by Lucy R]
I am tired, I do wonder if it would have been easier to just to let it all out on the internet.
I do think the FDAC type of proceedings should be rolled out to include other cases as well.
I hope my ramblings are helpful.
Sam, you will be intrigued to know that your comment did indeed provoke debate, particularly as to ambit of section 12 of the Administration of Justice Act which makes publishing information about proceedings held in private a contempt of court. My views were a little different to the views of others and prompted me to a late night review of some of the case law, particularly the President’s judgement in Re B in 2004.
of course, I respect the views of my colleagues and the need to proceed with caution. The law is the law. We have to obey it. However, your comment and the discussions that followed in the TP group underscore for me the deeply unsatisfactory state of the current law. If I am wrong, and your comments could legitimately be considered a ‘contempt of court’ then it is very difficult for me to understand the rationale for that. You provided no identifying details of any proceedings or any child, you did not quote from or refer to any court documents. You make complaints about the practice and procedure which are matters of serious public interest.
I may be becoming a little blasé after my daily exposure to the comments on Facebook where every day I can read, in detail about children’s court cases, accompanied by photographs of the named children.
But if a law is repeatedly flouted without consequences (as seems to be the case) I think this has both a corrosive impact on the rule of law and also points to serious flaws in that law. A law which does not command the respect of many of those it purports to rule is a law that needs looking at.
Sarah I hope you had some sleep?
Thank you all for editing and posting my comment. I try my best to add constructively to the debate , not to say like every other parent I have my” sledgehammer” moments.
I have been previously involved in a different type of law enforcement , which involved both criminal and civil proceedings at times. Those enforcing the law had a considerable amount of power, more in some circumstances than the police. Despite this a complaint from the public was extremely rare and taken very seriously. This was because procedure was followed meticulously , any serious decisions were taken higher up the food chain, the law was always read and everyone had appropriate training. Most importantly it was emphasised that the power had to be balanced with a duty of care towards the public.
From my viewpoint this is one of the problems, Children’s Services are fire fighting, under resourced, under trained and they do not have a public service ethos. I also think they operate out of stress and fear. It is what I call the Princess Diana effect, the media and therefore the public/social workers follow the hysteria , which is what happened after the Baby P case.
To balance that they are not accountable, Mr Suess has featured several cases where it is clear that local authority staff have lied to and about parents in yet there appear to have been no criminal prosecutions against council staff. So parent’s have righteous grievances.
I also think that the law is unenforceable, as with the vast majority of people on the internet, it does not have to be the parents leaking anything, if children are removed do you think the neighbours /friends are going to keep quiet or would they be more likely to gossip on face book? Children are certainly going to air their lives on line.
My last point on my previous post was that FDAC’s need to rolled out to other cases. Only from my experience again, the Judges who sat on my case do not have a clue about who I am, what influences me and whether I am a good enough parent. I think there are huge assumptions made as we all do this on a daily basis on how a person speaks, is dressed etc. There will be assumptions about me because of what I have written here. I am sure actually talking to a parent in a more informal setting would break down some of those assumptions. It is said that people were happier during the war, because the barriers broke down and they all pulled together. This is what FDAC appears to achieve, putting the children first, but with support and goals for the parents. I am sure in the long term it would actually save court time and money. Most importantly it would keep more children out of the care system, which for a sizeable number of children has a negative impact.
Its amazing how unsleepy you can feel when suddenly struck by doubts that you have misapplied the law and may now be in contempt of court… but at least now I am reassured that my doubts are pretty commonplace.
thanks for your comment Sam, I agree with everything you say.
Having attended this debate myself, it did open my ears a bit more.
I am all for the courts being open as I feel this will be a massive step forward in exposing the bias, crap, injustices and mockery that goes on. It will also expose those so called professionals that claim to work in the best interests of the children. It will also expose the childrens names….this I do not approve of. Yes the courts should be open, but the childrens names should not be revealed in my opinion. I feel that Sir Munby actually wants them open.
Before, during and after, I listened to a few people that turned up, many were lawyers, barristers and social workers and they clearly did not want the courts open….I WONDER WHY!
Well wonder no longer David. You can see the reasons set out in the post above. You may not agree with them, but you can’t claim they don’t exist and that they are not worthy of some serious consideration, however much the ALC might overstate their case.
Does transparency = fairness ?
It seems to me that something more drastic would need to happen IF the complaints of families regarding the system are to be taken seriously.
It is the fairness of the process and the perception that social workers work outside of the law, which is then ignored by the judge. I am not just going on my experience, the complaints of parents are very similar. Once again the internet comes into play, we find the relevant legislation, we go on forums and discover shared reality. Some of the themes are children are removed without consent or court orders, parents are not consulted for assessments, there is lack of disclosure, local authorities ignore court orders, professionals who actually know the family are completely sidelined. As well as the mechanisms which could be used such as data access requests are not adhered to.
Does something else need to happen as well?
Do judges need more training in the procedure that children’s services are supposed to follow?
Would it help if lawyers were not paid on a piece rate basis( correct me if I am wrong)?
Should it be asked at the start of every case , what have you done to keep this case out of court? I think in theory this should happen( Children Act 1989 Schedule 2 part 7) but only from my experience it doesn’t.
Does transparency = fairness ?
No. It seems unlikely that something could be fair if it wasn’t transparent, but transparency alone is not enough to make sure of fairness. This is a problem we are very alive to at the TP – simply publishingly lots of dense reported cases may well be ‘transparent’ but as very few people can understand what is going on, it arguably cannot be ‘fair’.
It is the fairness of the process and the perception that social workers work outside of the law, which is then ignored by the judge. I am not sure it is entirely fair to say the judge ‘ignores’ this. The reality is more likely that there is a limit to what a judge can do. He or she decides the case on the facts which are presented or found and applies the law to that. The problem with quite a lot of the objections raised by parents, is that they seem to be presented in very absolute and concrete terms – ALL SW are liars/corrupt/paedophiles etc. There isn’t much a judge can actually do with that kind of assertion. But judges don’t ignore clear evidence of bad practice/bad faith and there are many reported cases which set out their anger at sharp practice.
I am not just going on my experience, the complaints of parents are very similar. Once again the internet comes into play, we find the relevant legislation, we go on forums and discover shared reality. Some of the themes are children are removed without consent or court orders, parents are not consulted for assessments, there is lack of disclosure, local authorities ignore court orders, professionals who actually know the family are completely sidelined. As well as the mechanisms which could be used such as data access requests are not adhered to. I agree with this. Too many of the complaints are similar and chime with my own experiences for me to dismiss this as ill-informed or fanatasy. But I think the problems arise from your what you set out in your earlier critique – if SW are often under resourced, under trained, defensive, fire fighting then the quality of their work and engagement with parents will inevitably suffer.
Does something else need to happen as well?
Do judges need more training in the procedure that children’s services are supposed to follow? I don’t think this is needed. Judges are very aware about what makes procedures fair, and if they aren’t the parents lawyers will remind them.
Would it help if lawyers were not paid on a piece rate basis( correct me if I am wrong)? I don’t understand this point. Solicitors – as far as I know, but I am bit hazy on this – get a lump sum for the care proceedings, out of which they have to pay a barrister if they chose to instruct one. The fees have been cut several times in last decade to the point that a recent survey found only 4% of junior lawyers would chose to practice in a legal aid field. I will carry on working in this field for as long as I can because I am now sufficiently senior to earn a living wage but if I was starting out, I wouldn’t.
Should it be asked at the start of every case , what have you done to keep this case out of court? I think in theory this should happen( Children Act 1989 Schedule 2 part 7) but only from my experience it doesn’t. I don’t think this would help, unless sanctions were going to be applied to those who failed to act sensibly to keep the case out of court. If those sanctions were financial and applied to cash strapped LA, I don’t see who that is helping. The money will just come out of some already pulverised budget.
What we do need is a clear recognition of what we are supposed to be doing and why. A commitment to fair and efficient practice, not fire fighting or promoting any particular agenda. I thought it was interesting what you said about SW not having a public service ethos. I am certainly uncomfortably aware that more and more I am meeting SW teams who seem very aligned to the narrative that they are here to ‘rescue’ children, which I think disables them from properly meeting their other obligations in terms of family support.
“The problem with quite a lot of the objections raised by parents, is that they seem to be presented in very absolute and concrete terms – ALL SW are liars/corrupt/paedophiles etc. There isn’t much a judge can actually do with that kind of assertion. But judges don’t ignore clear evidence of bad practice/bad faith and there are many reported cases which set out their anger at sharp practice.”
Do parent’s actually make these allegations in court or is it just on the internet? I do wonder if when a parent does say that a social worker has lied , that the judge automatically assumes that the parent is just another nutter rather than examining the allegation in a fair manner. There’s that word again fair. A small word but so important. Actually I don’t think that all parents are nutters just in an immense amount of pain.
I don’t know if it’s politically correct to use the term nutter, I could not find a more appropriate term.
Parents tend to be more measured in court, but I am seeing a clear rise in the numbers of people who are prepared to make such allegations in front of judges. And whether or not they say it in court, it infects their engagement with the whole process.
I agree that judges will generally be reluctant to accuse a social worker of ‘lying’ – as opposed to mistaken, misinterpreting or confused – as that is a pretty serious allegation and would require serious evidence to back it up.
I don’t think enough consideration is given to the pain many parents are in. I think this is the inevitable consequence of the ‘rescuing children’ narrative that now seems to drive child protection as well as professionals inevitably getting jaded when they see these cases day in day out; but for parents it is the only case that matters.
re Sam’s question:
‘Should it be asked at the start of every case , what have you done to keep this case out of court? I think in theory this should happen( Children Act 1989 Schedule 2 part 7) but only from my experience it doesn’t.’
I’m not arguing with your perception, but think the answer might now be that this is a routine expectation, because of the pre-proceedings stage before court.
There’s also an argument that keeping cases out of court denies parents their rights to representation (and, in theory, it’s less public).
Julie I agree , as much as a lay person can,that pre- proceedings should sort this out. Perhaps practice has changed now, but during my previous proceedings this was not my experience . It was actually a ground of appeal. Once again I don’t know if I am supposed to say anything , so by all means do not publish this post if it means I am in contempt of court.
If my story seems rather strange, the solicitor who first represented me, had not read the Children Act , even though she only dealt with care proceedings. I am not making this up.
It seems extremely surreal to me ; it reminds me of the tale of the Emperor’s New Clothes. I have been saying look at what is the actual reality for such a long time now.
Once again, I am aware of other parent’s especially within my area being given misleading advice by local solicitor’s. I am not a conspiracy theorist , but I suspect it is more that this is the way these very established firms have conducted their business for years.
I apologise if I have gone too far off the topic.
Do you mean that she hadn’t read any of the Children Act or that some of the less trodden pathways of various sections and schedules weren’t familiar to her? Because I certainly couldn’t quote you with great certainty anything other than the most commonly used sections; I would certainly need my Family Court Practice to refer to once we got off the beaten track. If she hadn’t read any of the Children Act then I am genuinely flabbergasted.
I have just had another judicial kicking . Its funny how this particular High Court judge, can recognise infringements of the Human Rights Act in Judicial Review but fails to see more serious infringements behind closed doors.
No justice in this particular secret court for my children or me .
I vaguely remember reading skeletons can be published now is that right ?
No it isn’t right Sam. Not yet anyway.
http://www.familylaw.co.uk/news_and_comment/transparency-the-next-steps-a-consultation-paper-issued-by-the-president-of-the-family-division-on-15-august-2014#.VM
Here is an extract from it:
When a family court sits in public, there are various legal consequences. There are two in particular which will need the most careful consideration.
First, section 12 of the Administration of Justice Act 1960 does not apply to a hearing where the court sits in public. What are the implications of this? Will other restrictions and safeguards need to be put in place, and if so which?
Secondly, the confidentiality which attached to documents and information produced under compulsion ends when the material is read out in open court. This has particular ramifications in the context of financial remedy cases. Again, what are the implications of this? Will other restrictions and safeguards need to be put in place, and if so which?
It will be especially helpful to have the observations and comments of anyone who has had experience of a family case of whatever type which has for any reason been heard in open court.
It has actually caused me to have a revelation. I have already been in open court at a permission to appeal hearing so I can go public. This has given me the stone that I am going to throw at my Goliath. If anyone has any press contacts or would be willing to tweet I would be grateful. I can email the permission to appeal skeleton and any supporting documents. The President says so it must be right. The Independent Police Complaints Commission would also investigate the appalling conduct of the police, if it was in the public interest, which they kindly translated for me as if I happened to get the story in the public domain .