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.”
“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.
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.
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.
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.