MOST people know that children cases are heard in private
and children cannot be identified on the rare occasions that
proceedings are reported. They may also be aware that court
papers, such as expert reports and statements, cannot be read
by anyone outside the court without its permission.
A parliamentary committee is considering amendments to the
Children Bill which would introduce a degree of openness into
family proceedings. But will the amendments go any way towards
addressing the increasing criticisms about the secrecy of
family courts?
Most people, including a good few lawyers, do not know that
legislation passed more than 40 years ago, before the welfare
of the child was considered paramount, prohibits the
disclosure of any information in family proceedings outside
the court without specific permission. But section 12 of the
Administration of Justice Act 1960 is breached willy-nilly.
Parents talk to their families, their priest, their MP and
even the media. They in turn often publish features giving
details of children cases but avoid identifying the parties.
All such publication and disclosure is technically in
contempt.
Problems arise over strongly contested cases. Such a case
was that of Re B where a finding was made by a family
court that the mother suffered from Munchausen’s syndrome by
proxy. She disputed the expert’s opinion, and as there seemed
no chance of an appeal she sought advice from other accused
parents, her MP and the press. Kent County Council (the local
authority involved) pursued the mother and me, as her
solicitor, to the court alleging contempt.
We had also disclosed papers to my sister Harriet Harman,
the Solicitor-General, who had announced a review of childcare
cases after the Angela Cannings judgment. The mother wanted
her case to be part of the review. The papers were in turn
passed to the Minister for Children. I was condemned by the
judge for my ignorance of the Act and the mother’s discussions
with her MP were declared to be contempt.
My experiences led me to research the position in other
jurisdictions. In Canada and Australia family law is very
similar to our own. The family courts there have operated open
to the public and media for as long as most people can
remember, although there are restrictions on identifying
children and the courts can be closed in sensitive cases.
In New Zealand, after extensive consultation, media
reporting of cases is to be permitted. In Ireland the courts
were opened this year to the extent that legally trained
people can report on cases, although access to the public is
still not permitted.
How is it that jurisdictions such as Canada and Australia
have operated with such a degree of openness and still managed
to promote the welfare of the child, and our courts even
prohibit the publication of information not relevant to the
child’s welfare, that is the identity of experts.
Canada, although it has a family law system like ours, has
a different culture. What works there might not work here. But
Canada is also different from Australia and New Zealand, which
in turn are different from Ireland.
The secrecy of the British family courts has often been
challenged, mostly by aggrieved parents who want to and are
prevented from raising concerns. It fuels the Fathers 4
Justice lobby, which can claim all manner of injustice without
effective challenge as we cannot know the details of the
campaigners’ cases — or rather we should not know.
Cases where a child loses a parent because a judge has been
too easily persuaded by a controversial expert, or where
children are put up for adoption because a judge tends to
favour local authority plans, may be rare (although we cannot
know because of the secrecy of proceedings). But the very
possibility merits scrutiny of court processes, standards of
evidence and individual judgments. The welfare of the child
demands that we know better how family judges function.
Consider this recent comment by a High Court family judge:
“We cannot afford to proceed on the blinkered assumption that
there have been no miscarriages of justice in the family
justice system. This is something that has to be addressed
with honesty and candour if the family justice system is not
to suffer further loss of public confidence. Open and public
debate in the media is essential.”
Many would agree. The judge was Mr Justice Munby, the very
same who refused the mother in Re B the right to
identify the expert on Munchausen’s syndrome by proxy in her
case and who condemned as inappropriate the disclosure of
details of a childcare case to the Minister for Children.
The author is the senior partner at Harman & Harman in
Canterbury
