Transparency, openness and the family Courts, and the President’s proposal for changes.
The title of this piece comes from an American Supreme Court Justice, Louis Brandeis, and is a remark often quoted by the President of the Family Division, meaning that exposing something to scrutiny is the best way to make sure that it is clean.
The President has long been a believer that the best way to manage the family Courts beleaguered reputation is to have the information about the way cases were decided out in the open, rather than remaining secret. Having transparency means that an informed debate can be had, rather than one based on supposition and partial accounts, and suspicion.
There’s obviously the balance and tension between making cases public and preserving the confidentiality of the children concerned, but the constant cry from the Press and commentators that the secrecy of the family Courts is proof that miscarriages of justice are routine and that the system is flawed, perhaps even corrupt, means that transparency was always going to be required at some point.
If the system is flawed and children are being removed by the State for the sort of reasons that the Christopher Brookers of this world claim, then it is vitally important that the evidence and information that would allow that claim to be proved is out there and available to those campaigners. That is important even if it is only a few cases where these things are happening.
This is the DRAFT practice guidance, issued by the President on 13th July [sorry 13 July]. It is not in force yet, but I would anticipate it coming into force in the foreseeable future.
Unlike the other guidance published the same day, which for some inexplicable reason considers that what words are capitalised and whether one writes 17 May 2013 or 17th May 2013 is the pressing issue facing the family courts (rather than financial meltdown, injustice etc) http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-c-family-orders-project-house-rules.pdf
I am actually rather supportive of the transparency proposals.
The draft guidance effectively proposes that the STARTING point in all care proceedings, adoption cases or deprivation of liberty cases should be that an anonymised version of the judgment should be published, and posted to Bailii unless there are compelling reasons not to do so. [I would be slightly interested to know whether the MOJ are going to give Bailii some money for this project, I hope so]
Other categories of cases should have anonymised judgments available on request.
I happen to believe that it is appropriate (providing that the anonymisation process is done carefully so that the identity of children cannot be deduced) that the public are able to see the reasons for the State making orders, particularly Care Orders or Placement Orders about children.
At the moment, anonymised judgments are available only where the case involves an important legal principle, or is an appeal hearing.
This proposal of all judgments being published will be across the board, not limited to cases of a particular type, and will allow firstly, journalists reporting on a case to actually read the judgment in the case to have an INFORMED understanding of what happened, and secondly, allow for proper analysis of the reasons for State interventions and patterns, themes and trends that emerge.
It will also give researchers the opportunity to collate information from cases overall, mapping out whether there are trends, differences in areas, differences over time.
It will also allow for proper, evidence-based research and debate over things such as emotional harm, when we can see the extent to which emotional harm (or obesity, membership of UKIP, or any other “hot-topic”) is a factor in State intervention.
I have 3 thoughts that come to mind :-
1. There does need to be some thought as to how these cases will be searched for or stored on Bailii – the signal to noise ratio problem. At the moment, practitioners know that every family law case posted on Bailii has something of potential significance and wider principles on it, and can read it (or read the summary of such cases that family law bloggers write).
But those cases of wider significance are a very small proportion of the cases being decided every day (and soon to be published every day). Each and every one of those cases is deeply significant for the people involved, and will be statistically significant for research purposes, but in terms of practitioners spending time reading them most of them are very fact-specific and not of wider interest.
Do we increase the chance of the cases of wider significance being missed or drowned out by a volume of material?
- In amongst all of the other judicial duties, including the much more robust case management ones being imposed by the revised PLO, will the Judges be allocated time to the careful anonymisation work that is necessary?
- This one is undoubtedly more fanciful, but it might be worth some thought. Knowing your tribunal is always helpful, but this system would allow the carefully prepared to look at the decisions and judgments that an individual judge has made, and to pick up on themes, trends, perhaps even idiosyncrasies. Perhaps Judge Anderson seems to very often go with the conclusions that Dr Burner reaches, but doesn’t care much for Dr Honeydew. Perhaps Judge Broad seems to be quite hard on substance misuse cases, but has a soft spot for parents who had been in care themselves. Perhaps it appears that Judge Finn prefers local counsel to out of towners – perhaps even that Judge Trott has certain counsel who always seems to do well in front of him, and you should book them for your case, but that they really don’t like Alastair Smoothie of local chambers. All of this is currently about by hints and anecdotes and suspicion, but if the hard empirical evidence of all the cases were known it would be a bit different.
[Of course, one might say that Judges ought not to have those little foibles and idiosyncrasies and should come to each individual case as a tabula rasa and judge each case entirely on its own merits; and the overwhelming majority of them do, but one might argue that it would be a GOOD thing that the MOJ could potentially work out where this was not the case.]
If that raw data is there, one could also extrapolate, if one had the time and resources, some actual league tables – of the 81 cases that Alastair Smoothie represented parents on, what were the outcomes? How does that compare to Juliet Handwringer? That could be a good thing, if parents and solicitors had hard data on which barristers are more likely to produce good outcomes – it could also be a bad thing, if counsel fight shy of taking on the more difficult cases to win if they are worried about their place in the informal league tables.
[In reality, I don’t think that anyone will have the time and resources to undertake those exercises with the raw data, but just in case, I’m going to trademark Compare The Counsel. Simples]
None of my 3 thoughts are, in my humble opinion, good reasons not to go ahead with transparency. It is an idea whose time has come.
suesspiciousminds 
25,000+ families in the UK are destroyed every year by UK secret family courts and the
equally secret Court of Protection.What is a democracy? It is surely a country allowing the right of its citizens to protest publicly if they feel oppressed by the State; Elections are no guarantee. Hitler was legally elected, but was revealed as a dictator by suppressing any form of open dissent or protest. In the UK now secret family courts take newborn babies from their mothers for “risk of emotional abuse”, give them for adoption to strangers, and JAIL any parent going to the media to protest! Similarly elderly folk are snatched from caring relatives by the court of so called “Protection”, and put into expensive private nursing homes, their bank accounts are then looted and houses sold (ejecting their relatives) to pay the fees! If relatives protest to the media they too are JAILED! The democratic right of public protest to the media should be restored to victims of UK secret courts NOW.
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Well Ian, the judgments will be out there for us to read soon. I’ve never actually done a case based on risk of emotional abuse, and can’t imagine doing so; but where I do agree with you is that we need transparency to know if this is actually happening to families. By the way, Godwin’s Law does apply on this blog…
As a mother who would have had a newborn baby taken at birth, if I had not escaped UK jurisdiction, I would never have believed anything that I have read, or believed any of the other mothers of the same fate. I would merely have said “that cannot happen here in the UK”
Our democracy needs returning to the people, as things are getting pretty bad out there. Mothers are now killing their children and themselves in fear of social workers taking them.
We need our right to protest, otherwise how do the people know what is going on, until it happens to them?
I think that I am seeing the beginning of the end of the huge miscarriages of justice happening in this country, and certainly not before time. I lost one child, nearly lost another and have tried to protest the whole way through, I have been in prison, twice, a total of 11 months and it becomes bewildering how the secrecy of the system can cover the injustice. The press are fed propaganda and reporting restrictions cover the rest. At last it seems as if the press will have access to reports and judgements that were kept secret before.
I am sure the recent exposé of the NHS hospitals will soon be followed by our Social Services system, as what is being revealed are that none of the complaints avenues worked and I can quote from experience they do not work in this system either.
I have been reported by Irish social workers and qualified child experts within the prison service, that I am an excellent mother. I pose the question, if this is true, then how has something like this happened to me and the countless other innocent parents in the UK?
“The press are fed propaganda and reporting restrictions cover the rest.”
There are reporters who have been covering the issue (Booker, Sue Reid, Cavendish), but yes, the restrictions make reporting very difficult. I cannot blame journalists for not doing more than they currently do.
And what could be a compelling reason not to publish a judgment? I believe it was John Hemming who said that there must be an information commissioner who would make such decisions, not a judge handling the case. And I agree with him, although I would prefer complete transparency without exceptions. I believe in the US they have a near complete transparency in family courts and there is no evidence that anyone is harmed by it.
The social services machine (and judiciary) hides behind a mantra of ‘confidentiality’ preventing anyone from knowing how they operate or judge people. It is not children who seek confidentiality- it is merely assumed to be in their best interests just as forced adoptions are.
I was astounded recently to note that my reporting to SW a fact that GP’s and clinicians had not agreed with a diagnosis amongst themselves, was recorded as I had disagreed with doctors. That is how bad all social workers in my experience are- this will be their record of ‘evidence’ when you are in conflict with them. If I was not able to challenge this (.e.g. from records etc.) I can imagine how bad / erroneous information on records could be used against me when in conflict with a SW. So not only must there be transparency but the courts must allow people to gather their own evidence to refute social workers- people need help and time to do this.
Social work has agressively strived to establish itself as a bona fide profession, althoough the educational and intellectual ability of many social workers remains low- compared to most other serious professions. It is no wonder that many of these persons do not relish transparency- they would be under the spolight. But the same holds for the decisions of the judiciary who, as Suesspiciousminds has noted, may be found to have their own idiosyncracies and biases when in the spotlight of transparency.
Compelling reasons – well, it would have to be that the facts of the case would make it such that even a high level of anonymising would still make the children identifiable, I think. For example, say that the family was from the Scilly Isles and the issues in the case in part were related to the parents being Jehovah’s Witnesses, and the children were twins. I can see that if you called the children A and B, it would still be pretty straightforward for any local person reading the judgment to know who the children were. You’d also have to be pretty careful with children of celebrities. For example, before the injunction was lifted, the reporting on the injunction proceedings about the child that Boris Johnson had fathered made it pretty apparent to anyone reading it that Boris was the anonymous politician being discussed, even though at that stage the case report was about the judge’s decision to preserve his anonymity. Lines such as “The press wanted to obtain a photograph of the baby in order that they could claim that the baby shared his father’s distinctive hairstyle” when you know the alleged father is a politician makes it a no brainer.
The understandable fear about ‘compelling reasons’ would be that if they are not spelled out like that, you might think that cases that would bring the family justice system into disrepute would be covered up, and those are of course exactly the ones that should go into the public domain.
I don’t think it is necessarily a bad idea for a Judge considering that there are compelling reasons to provide the Information Commissioner with the anoymised judgment and the compelling reasons, to see if the Information Commissioner agrees, that seems a good safeguard to me.
I also forgot this. Imagine I am a parent in a case, let’s say Mr Tufnell. I have a bad relationship with the mother of the children, there’s no love lost between us. There’s a set of care proceedings, and within the judgment there’s all sorts of material about the mother’s history – perhaps that she was sexually abused as a child, perhaps that she has worked as a sex worker, perhaps that her new boyfriend has got convictions or allegations of paedophilia.
After the case is up, I can’t share with people that my children were the subjects of care proceedings or this information. The laws about identifying that the children were the subject of care proceedings are still there.
But, I have a facebook page. And I put on my facebook page “Interesting case – link” and link to the judgment. Anyone who knows me who reads it will know that it is about my kids and my ex. Have I breached the law, or not?
What if I am a crusading journalist, and I put a small article about Mr Tufnell (unrelated to the case, and a photo of him and his kids) and then I write a big article on the same page about the family and quote from the published judgment and link to it? Have I breached the law, or not ?
What if I am a crusading journalist, and I write about the published case, and link to it and I have a comments section, and the very first comment is FROM Mr Tufnell, saying “Brilliant article, thank you so much for writing it”
I haven’t expressly identified the case, in any of these examples, as being about THESE children, it is just that anyone with a brain will guess that the case is about them {well, certainly the first two}. In the last example, people might infer it, but it isn’t necessarily obvious. Is Mr Tufnell legitimately allowed to post that comment? Are the newspaper allowed to publish it?
What if it is a contact dispute, and mum wins, and posts up on her facebook page, the link to the judgment, saying “Interesting case” and anyone who knows her and knows the dad can read the case and all the confidential things that are said about dad – say, he used to have an alcohol problem or he once hit mum, or that the children said they are frightened of him? What if mum sends a copy of the judgment to a woman dad has just been on two dates with? She doesn’t say that it is about Mr Tufnell, but the potential new girlfriend/boss/client of dad might well guess.
So, whilst I am massively in favour of publication of anonymised judgments, one has to bear in mind that a lot of people in court proceedings have very very strong feelings about the other people, and spreading around all of that sensitive and delicate information could have consequences.
I see every now and then the scenarios you describe here (“see an interesting link here”). Why don’t wait until children grow up and judge for themselves whether their parents were right or wrong?
By the way, remember you referenced a court judgment about two Slovak boys who were returned to their grandmother (and mother)? I believe that the only reason why Slovak authorities intervened was that this case (and some others) received a huge publicity in Slovakia. I also believe that chances are very high that in this case (and a couple of other Slovak cases) families could have lost had it not been for the intervention of the Slovak authorities, which came in the wake of big protests, which, in turn, were brought about by public disclosure of the stories. I am mildly wondering if you talked to these Slovak parents and their friends and supporters what sort of argument would you give them in favor of preventing full public disclosures?
As always Arhivistka, you make points which are very thought-provoking. It is certainly right that having transparency about cases can prompt public debate and perhaps even a recalibration when the State or the Courts are going wrong. The problem is, as we know, the Press are far more interested in a story of “Mr and Mrs W G Grace and their children” than “Mr and Mrs G and their children” with no photos and nobody to interview. How does one square that circle whilst protecting the children from attention that they didn’t ask for. The Press, for example, probably would not have devoted a hundredth of the attention to the disappearance of Madeleine McCann, had they been compelled to call her “Child M” and not be able to provide photographs and names – the human interest angle goes a long way. On the other hand, if a Court case is making findings of fact about alleged sexual abuse of children, is it right that a google search of that child’s name will throw up those incredibly painful and intimate details to classmates, parents of classmates, future employers, future partners and families of those partners? I’ll be writing soon about a case involving a debate about whether a child was fathered naturally or by artificial insemination, and neither of the adults in the case come out of it looking like good, honest people. If the child and adults were named, that judgment about the conception and the lies and animosity and hatred would all be there, waiting for anyone who searched for the names later in life. Tricky.
I’m in favour of transparency, but anonymity for the adults and children, for those reasons. Perhaps it should be the case that where a parent wants to involve the media (as in Ian’s examples) the Court would hear the arguments about lifting anonymity and decide it on a case by case basis rather than general principles. Of course, we know of cases (one of the few where we DO know the parents name, for example) of false allegations being made in private law proceedings, and if the Press were naming the individuals, there’s no certainty that the coverage of “W G Grace found to have not raped his children, Court finds” gets anything like the coverage before the final hearing of “W G Grace raped his children, mum claims”. (You only have to look at the disparity between splash pages of lurid claims as against the tiny box apology tucked away in the smallest print available). That sort of thing could easily ruin W G Grace’s life, when the Court testing the evidence found that the allegations were false.
Just as every member of the public had a view on Michael Jackson, or O J Simpson, or Louise Woodward, without hearing all the evidence, based on the limited information produced by the Press, is there a risk of W G Grace undergoing trial by media, and have his life ruined when he has done nothing wrong? (For a really stark example of this, take Colin Stagg, who the media spent years insinuating, implying and outright saying that he had murdered Rachel Nickell as a sex beast and got off on a technicality, when we now know definitively he did not do anything of the kind.)
If one has a very responsible press, anonymity might not be such an important issue, but pretty much everything we have heard in the last year gives me cause for concern that we don’t have that in the UK (at least not yet)
Put simply:- If someone takes your newborn baby away you should have the right to rush to the media to protest identifting yourself and your children.That is what demcracy is all about.
If we are to embrace the brave new world of openness, honesty and transparency, in the family courts we should include the scrutiny of Cafcass. A quick look on the “What do they Know”, website which transacts FOI questions will reveal that Cafcass is most reluctant to give any information away which may impact adversely on them. They choose evasion, spin, dissimulation, dissembling and outright deception to promote and present a picture of their service which would do Dorian Gray proud.
Latest Nspcc stats for children under a care plan during the last 12 month period are:-
Physical abuse =2012; Sexual abuse=2220;and EMOTIONAL ABUSE= 12,330 !!
I am sure suespicious minds that you will soon come across a case of emotional abuse or risk of it !
Sorry physical abuse =4690 Maybe I need specsavers ……
At any rate Emotional abuse is the buzzword !
MUNBY plays a confidence trick !The cloak of secrecy in family courts will not be lifted simply
because L.J Munby now says” judgements will in future be published unless there are compelling reasons not to do so .Who decides the reasons? Why the judges of course !
1:-Judges will still find “compelling reasons” not to publish dodgy judgements.
2:-The public(including grandparents and relatives of parents) will still be excluded from family courts.
3:-Mothers whose babies have been taken at birth will still be threatened with jail if they” go
public”Forced adoption will uniquely in UK continue unabated so babies are” lost for life”
4:- More children will still be taken for emotional abuse (or risk of it !) thahthose removed for both sex abuse and physical abuse added together;
5:-The media will still be forbidden to name parents who want to protest openly and publicly
6:-Children taken into care will still have their mobiles and laptops confiscated to isolate them from family and friends, Conversation with visiting parents will still be strictly censored
7:-Children in care receiving visits will still be forbidden to report abuse by fosterers,care workers,or social workers,and nearly half will still end up in jail or as sex workers.
8:-Agencies like Barnardos and N.F.A (founded by 2 social workers and sold for £130million+) will still make fortunes from recruiting fosterers and adoptive parents
9:- Foreign visitors who are single parents here for a holiday or to meet with relatives will be prevented from returning home their children will still be taken for forced adoption.
10:-Pregnant women fleeing the uk before any court proceedings start will still be tracked down in foreign countries by the SS who will snatch the children for forced adoption uk
11:-Judges will continue to issue injunctions forbidding parents who have committed no crime from contacting directly or indirectly their own children for periods of many years.
12:-PUNISHMENT WITHOUT CRIME will continue to be inflicted on parents, as experts (called hired guns in the Ireland report)predict risk of harm to children who are then adopted
Really interested in point 9 Ian – without giving any names or anything that would identify the persons involved, have you really been contacted by people who don’t live in the UK who had their children removed and adopted whilst they were on holiday or visiting relatives here? I think there would be some serious difficulties with jurisdiction if the parent is not ordinarily resident here.
Absolutely yes ! A French woman coming over to visit her ex husband in UK ( with whom she was on civilised terms)for 10 days with their two children who lived with her in France is still struggling more than a year later to take them home but they blame her because her “ex” was said to have injured his daughter by a previous relationship when cutting her hair !! The lady was not present if or when this happened but got blamed.
Christopher Booker wrote a column about Slovak children who were eventually allowed to go home ON APPEAL after protest and pressure from the Slovak government;
There are many more,and there was a recent meeting of representatives of several countries (including Ambassadors) to discuss this issue in a room at Parliament.
The Slovak case isn’t that at all, but never mind. Those children were ordinarily resident in the UK and the argument was about moving them to relatives in their mother’s home country. [There were very real criticisms of the way the LA had handled that case, and I’ve written about it – the LA got a kicking from the Court of Appeal on 3 separate occasions)
Your French one does sound as though someone should have been arguing jurisdiction really early on.
I don’t think jurisdiction comes into it .If for instance a mother slaps her child in public and leaves a small bruise she is breaking uk law just the same as if she had murdered the child and is subject to uk jurisdiction.The point is that if she had not been convicted of harming a child why not let her and others return to their own country where it may be acceptable to smack children ,sleep 5 in one bed,or let the kids stay up until midnight ? Keeping them here is a ridiculous and unecessary expense unless they are adopted (maybe the main object)which is even more cruel and shows a complete lack of confidence in the social services of the family’s home country.
Ian has hit on something which is relevant but which is not acknowledged. People from other culture and countries in partiular do not have social workers (Norway apart it would seem) that home in on family ‘cultural behaviours’ as child protection ones.
Social workers here are theory orientated. Anyone who has a good education will know theories have nothing to do with evidenced based fact- they are notions / belief systems, where academics or others give voice to a generalised explanation for something. But in science theories are supposed to be treated as something to be rigorously proved or disproved through a null hypothesis. Unfortunately the standard of social sciences research are very varied and academics put forward any number of theories which are applied by social workers with insufficient research evidence to back then up with good quality research.
What you have is individual social workers applying theory uncritically- mostly as use of ‘stock in trade’ phrases repeated in documents they write.
Many people from other cultures are unaware just how easy it would be for a cutural norm, (which may not be harmful or abusive as it is common behaviour in their home country), might be picked up by the vicious child protection system here to be pronounced harmful, on no evidence. Slapping children in public is just an example, or children sleeping 5 in a bed with others- as Ian points out. There are of course harmful behaviours of other cultures which are criminal ones here e.g. forced child marriage, FGM are just two examples.
So Ian is right to repeatedly point out that parents are being punished for having committed no crime, on the say so of the most incompetent, unskilled and untrustworthy bunch of people I have personally had the misfortune to deal with. Years ago this behaviour I considered benign- save in the mental health system, now it is dangerpus to children’s and society’s well being. Who says children are being protected? The evidence of the state as parent just does not support this to be true.
Social work will end up with the criticism now being meted out to nursing staff, police and care workers, (all who deal with assisting others), through criticism of their standards of work, When this happens it will be long overdue. Non criminal families and their children may then be treated more fairly by the system and not torm apart.