On 1 January The Times published a piece under the headline “Judge attacked over bid to hold family cases in public” (£). Frances Gibb, legal editor, reported that Sir James Munby, President of the Family Division, “could be forced to delay or radically rethink moves to allow the public into family courts after hitting a wall of opposition.”

The story concerned the responses by some childrens’ groups and family lawyers to the President’s current “Transparency – The Next Steps” consultation (see our earlier blog here). They had expressed doubts about his plan to open the courts still further to public and particularly media scrutiny than hitherto. In particular, they had “warned that children will decline to give evidence if they know that the public may attend, even though names would be anonymised, because they fear inadvertent identification.”

The article quoted Resolution, an association of 6,500 family lawyers, mediators and others, questioning the demand for transparency and claiming that “any benefit to the public would be far outweighed by the disadvantage to children and the court user in relation to their privacy and ability to give their best evidence.”

The article unsurprisingly prompted discussion among the contributors to this blog. The discussion took place via email, and this post is an attempt (with minimal tweaking) to capture the thread of the discussion in a blog post.

Lucy R:

Have seen articles about Resolution response before now (poss on Jordans or FLW) but unsure if the actual response is on their site. Will check…

Resolution response here (pdf). knew I had seen it.

Am about to do a post on Pink Tape. Would be good to collate links to other response we know about on TP [Transparency Project], although not sure how many have been published.

Alice T:

Yes good idea. I only know of the ALC [Association of Lawyers for Children] one [here (pdf)]

I hadn’t read the Resolution one but will now.

Lucy R:

I’ve found quite a few of them actually. Is anyone able to do a summary of the various responses for TP? I’m going to publish a blog on Pink Tape later which has the links in it. Still writing it at the moment….

Sarah P:

I could do a summary if no one else is keen – I have on my to do list reading through the American research I have been sent; it might be interesting to do a compare and contrast.

I will certainly aim to get something done by the weekend – I will summarise the stuff from the U.S. and have a bash at summarising the domestic responses unless anyone else is keen to do it. I think it would be very helpful to present it in a tabular form, i.e. identify the main points and flag up who is pro and con.

At the moment we have the worst of all possible worlds. For e.g. The father in the ‘Baby no name’ Herts case is all over the Internet, publishing very clear photographs of both his children with emotive and in accurate accounts of why they were taken. And I remain concerned that ALC/the Childrens Commissioner base their responses on a sample of 61 children. I certainly don’t think that is a sufficient number to make serious claims about risk of harm to children from increased publicity.

Lucy R:

I posted a list of responses last nite [here] and we have started summaries of them in separate posts.

Alice T:

Sarah I’ll have a go at a first draft summary of domestic responses (tab form).

Julie D:

I have just posted a summary of the Resolution response [here]. I hope it’s an accurate reflection but please comment on anything that occurs to you, especially if you don’t agree with my comments.

Sarah P:

Brill, can we at some stage bring all individual summaries into one document?

I will do separate post on US stuff or amend my earlier post.

Lucy R:

I am linking to the summaries in the list post

Sarah P:

But wouldn’t one single document with all responses be quite useful? Sort of ‘transparency at a glance’. I am assuming they all deal with similar issues so we could tease out headings then do précis of responses in tabular form.

Lucy R:

Yes but I think it might be too long to be manageable – have a look at the 2 summaries we’ve done and see what u think.

Alice T:

Agree about vital importance of underlying research base and Julie’s / Sarah’s plan to pull it together.

Experience of JR lawyers as cohort re media use of children’s cases and impact on those children in civil open court regime subject typically to anonymity orders, starts to be ‘research’ rather than opinion. Helps on jigsaw reporting though not risk of children not revealing abuse etc. Think Sir J Munby hoped they would respond eg practitioners doing asylum age disputes routinely or care leavers etc.

As to a document in one, don’t think it matters so much whether it’s actually in a table /tabular form but more that it follows tabular logic ie. analyses responses in a coherent consistent order /framework. Headline on 1/2 short pages or even a table. Linking or footnoting to more in depth information but only under headings so voluminous and growing material stays under some control/analysis.

Let me know if you want me to do anything or not. Happy either way. I might even try to tab it for myself anyway out of interest!

Lucy R:

FYI – not read it yet but thought you would all like to see Dr Brophy’s article in Dec’s FLJ.

[Brophy, Dr Julia: Irreconcilable differences? Young people, safeguarding and the ‘next steps’ in ‘transparency’ [2014] Fam Law 1685]

Sarah P:

I am happy to give it a bash – I have a gift for précis. (she says modestly).

I think it would be sensible to have just one document ‘transparency lite’ that we can boil down to essentials, otherwise I bet there is quite a lot of our intended audience who won’t read it.

I have attempted to précis the US literature review and added it to my earlier post – disappointingly it seems it doesn’t take us much further forward as the Minnesota research which purported to find only positives about opening up the family courts seems so methodologically flawed as to be useless.

BUT on a semi serious note, if we can get funding from any source, a trip to Oregon might be worthwhile as a ‘fact finding’ mission. (hopeful). This is the only state that has (almost) entirely open family courts, only exception are cases about paternity apparently.

Lucy R:

thanks Sarah.

And thanks for the info on Oregon / US, v interesting.

Are there other jurisdictions where courts are open?

We should maybe look at that too…

Julie D:

Ireland has just started ‘opening’ its courts. I have some info on it – will find next week. It looks like quite a sensible project.

I’ve got some international stuff, may be bit old. E.g Australia, Canada

Lucy R:

ah well Australia – there will be research coming out of our ears I’m sure!

Sarah P:

I have finally put my finger on what is bothering me so much about the open court debate – sorry if it is so staggeringly obvious that it has already been discussed and dismissed elsewhere.

But it’s the gathering together of all children and ‘young persons’ and imposing one solution to all when surely the impact of publicity is going to be much greater on the older Gillick competent child. And the big objection from the ALC that children will ‘clam up’ fearing publicity has no relevance at all to pre school children who are highly unlikely ever to be interviewed or assessed on their own account.

We appear to have a number of jurisdictions similar to our own, most notable in the US which have had open courts for many years and don’t seem to report the kinds of problems the ALC fear will arise. But as yet it seems there has been no proper formal evaluation of these courts, using a respectable methodology.

Am I right about that? Or is there such research? If there isn’t then I think we have identified another clear goal for the TP and my flippant remark about a trip to Oregon actually takes on some force.

Paul M:

That makes sense, but I think the public perception may be that the younger the child the more vulnerable. What you suggest implies a sliding scale the other way – so they are potentially more in need of protection from publicity the older and more Gillick competent they are … Until the point when, at adulthood, the criteria suddenly evaporate and they are treated as no longer susceptible. Would that be the case?

I certainly agree that there can be no one-size-fits-all solution. What Munby seems to be about is reversing the default or presumption from privacy to openness, and requiring any variation from that norm to be justifiable. That may involve a Gillick-like assessment, or separate private sub-hearing or something, surely not impossible?

Speaking as a non expert so forgive me if I’m barking up wrong tree.

Julie D:

I agree that most of the arguments put forward by or on behalf of ‘children’ are about older children, as epitomised by Sue Berelowitz, and that it’s not helpful to apply that to a blanket policy. However there are also other arguments to be made on behalf of _all_ children, which get lost in this focus on the older ones.

So far as comparing E&W courts with other jurisdictions, some work was done during the run-up to the 2010 Act.

I’ll try post something succint on these points on the blog!

Sarah P:

I like (the little) I have read so far about the ‘presumed closed’ courts in the States, where the onus is on the person or entity who wants the case opened, to make their arguments.

The reason we don’t protect most adults from publicity is I assume because we put the interests of fair and open justice in the scales against their embarrassment, and fair and open justice wins.

However, we protect children in such cases from publicity because they are usually the victims of adult misbehaviour and we don’t want to compound their misery by making their names and faces widely recognised.

However, the harm done to children in such cases is only a real issue if they are aware of that as a risk and if they are identifiable. So I think the issue of pre school children is very different. I know Julie is not keen on Munby’s observations that all babies look the same but I do see his point! I don’t agree that the younger the child ‘the more vulnerable’ – unless you can clarify what you mean by ‘vulnerable’

If you are a baby or toddler in some of these parent videos, even if you are named, five years down the line it is unlikely that anyone would recognise you from your facial appearance alone. Plus, as a baby or toddler you will be utterly unaware of the prospect of media interest in your case. Thus – what is the harm? That in ten years or so someone will google you and dig up something embarrassing about your past?

I just don’t see that this ‘harm’ has yet been sensibly weighed against the massively corrosive impact of the ‘secret family courts’. I note with horror that on UK Social Services Facebook group, one woman is posting in lingering detail an injury to her baby’s scrotum, many people are piling in, naming the doctor, the hospital, recommending all manner of nonsense. She is being advised to sack her solicitor, make Subject Access Data Requests for ‘all your files’ and conduct the case herself. It’s getting increasingly crazy out there.

What is interesting and can’t be ignored is the fact that the American experience seems to confirm what I have always suspected – once the media find out just how unsexy most of these cases are, they will drop them like proverbial hot potato. I think the ALC overstate the risks and understate the impact of continued dogged refusal to consider even some degree of open court.

Alice T:

Specifically also ‘other’ harms to children such as loss of trust and co-operation of cohorts of parents, susceptibility to misinformation etc are not addressed in various consultation responses.

Also the younger the child more vulnerable (voiceless) in that we must speak up for them as if we know what they might say etc but I don’t think they are actually more at risk, rather less at risk.

Lucy R:

Also, there is a cohort of young people whose expressed wishes and feelings are for open family courts because they believe they have been wrongly prevented from a relationship with (typically) their father by the family court – see F4J – there are of course issues about how reliable their w&f are or how representative they are but why should we give credence to the homogenous sample in the ALC / NYAS study over these yps? All are no doubt influenced by adults

I have also been thinking about the private law public law distinction a little more – there is a cohort of dissatisfied customers of both private law proceedings (sometimes with mutually incompatible complaints about the bias of family judges and CAFCASS) all of whom share a desire for open courts to show the world it is as they perceive it to be. Broadly speaking those who want full openness consider the court broken and for them the balance of harm falls differently than for those who want privacy who are generally of the view that it works and may be broken *by* transparency.

I *think* we broadly fall in a third category of people who think the system is flawed but functioning and who wish to see that demonstrated to the public through greater transparency without there necessarily being fully open / public courts all the time.

Alice T:

For completeness, if looking at that point there is equally a cohort of children in the care of mothers who feel their parent’s DV or their own child sexual abuse allegns/other were ignored and they forced to go for contact against wishes etc.

Thinking on about private/public differences and similarities.

Sarah P:

Reluctantly agree with you Lucy about the need for debate on TP / in public. Could the same conversation be freely had? I fear that it could be quite difficult for some FJS professionals in the current climate to ‘come out’ as anything other than wholly aligned to the ALC/NYAS position. Which is of course why it’s important. Or is it just me who has that sense?

Paul M:

You may be right. If so, it would be useful to hear from professionals who feel they cannot “come out” in favour of more openness in the current climate, perhaps by commenting anonymously on this blog.

Further comments may be added below.