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The forces of secrecy are prevailing.
Last week a High Court judge denounced the “nightmare” suffered by a couple who were wrongly accused of harming their baby son. They were separated from that child for 12 months, the first and formative year of his life. During that time the mother became pregnant again but had an abortion, because she could not bear to risk the authorities taking that child too. So those who rushed to judgment ruined four lives.
“This is not a case,” said Mr Justice Ryder, “where there is no smoke without fire. This is a case where a family court and the expert who advised it got it wrong.” The consultant neurologist, Wellesley Forbes, was “too absolute” in blaming the parents. Two courts refused to let the parents seek a second medical opinion. The appeal court finally agreed to call a paediatric neurologist, who found that the injury had been caused before birth.
Mr Justice Ryder described a doctor who “strayed from the role of expert into the role of decision maker” and a family court judge who “failed to detect that that was what had happened”. Even more shocking is that we would know nothing had Mr Justice Ryder not chosen to make his judgment public.
Oldham Council, which brought this case against this couple, opposes the Government’s proposals to open up the family courts to scrutiny. No surprise. Oldham’s response to the Government’s consultation is that open courts could worsen “an already upsetting experience” for children. But who will be more upset by transparency, children or sloppy professionals? What is most upsetting about the family courts is that they can pass an effective life sentence, the permanent removal of a child from its parents, on the word of an “expert”, with no criminal conviction and no accountability. The family courts operate in secret. Secrecy is a gift to the incompetent and the corrupt.
County court judges, family lawyers, doctors, children’s charities and councils are massing to block reform. This was predictable. Harriet Harman, the Constitutional Affairs Minister, still has a strong hand to play as her reforms were recommended by the Constitutional Affairs Select Committee. But a new and unexpected obstacle has thundered into her path: her boss. It is becoming clear that Lord Falconer of Thoroton, the Lord Chancellor, is a staunch ally of the forces of conservatism. He is deeply uncomfortable about letting the press and public into family courts. As a lawyer married to a county court judge, he is being heavily lobbied by his profession.
In a little-noticed but important speech last week, Lord Falconer left little doubt where he stands. He explained his extraordinary recent decision to limit the Freedom of Information Act by saying that it had become “a research arm of the media”. He went on to make the breathtaking claim that children had made it “crystal clear” that they did not want journalists in family courts. That is a bizarre interpretation of the consultation findings: a third of children agreed that the media should be allowed into family courts automatically, with a majority agreeing that the decision should be up to the people involved in the case. One can only conclude that he was expressing his own view, not that of children.
That is not to dismiss the genuine concerns about how to protect children. Of course they should not be named, or be at risk of being tracked down by abusive parents. Of course some journalists may seek to breach their privacy for a headline. But other countries have found ways to resolve this, including strong sanctions for breaching reporting restrictions. Many options are being debated. This is not the real issue.
The opponents of openness claim that their concern is the “welfare of the child”. Yet the true interests of the child lie in protecting him or her from a miscarriage of justice. At the moment we are simply protecting the professionals. The Royal College of Paediatricians fears that doctors will not give evidence if they can be named. But the Chief Medical Officer has found that 80 per cent of paediatricians have never been expert witnesses, not because of adverse publicity but because they have never been asked. The lawyers say, in effect: “Trust us.” But the few cases made public reveal errors by judges who were confident that their reasoning would never be read by anyone.
Lord Falconer says that striking the balance between privacy and open justice “may well involve allowing the press or the public in only where the judge expressly agrees as an exception”. That would be the death knell of these reforms, a blatant attempt to preserve the status quo. Judges are free to publicise their judgments now. But few do.
It seems that Lord Falconer may not be content only to scupper the Harman reforms and turn the clock back on freedom of information. He is also considering giving magistrates discretion to close their courts. Is that really his solution to the anomaly of family courts being secret and all others open: more secrecy?
Ms Harman will not stop — yet. But she needs the legal profession to understand that more openness is the only way to ensure that justice is done, and is seen to be done. In Oldham, the only reason the parents of that baby boy have got him back is because of the courage and tenacity of their defence lawyers in pursuing a second medical opinion.
They are the heroes. Is it not better that we should know them? Is it not better that we should know if Dr Forbes has been criticised by other judges in the past? In the dark, we cannot see whether patterns of injustice exist. We cannot help the victims. The Lord Chancellor cannot believe that secrecy serves justice. He cannot.
We should be abolishing social services altogether. Although they were created by well meaning people (I think), their net effect on society seems to be negative. Some genuine cases of abuses would go undetected and some children would be worse off. However, a far greater number would be saved from the 'care' industry.
The money saved could be used to cut taxes on the poor, which aggravate their poverty and social problems, leading to healthier, happier families overall.
George Bathurst, Windsor, Berks
The secrecy which abounds
in the 'Family Justice System' and The Family Courts is breeding public
contempt for the law. The fear of entering into any family justice procedure
is rendering, many cases, which should be being heard in the courts,
mute. The result is that children are being failed. Justice for children
is not being served. The sooner the family courts are opened up, the
better. It is possible to strike a balance, which will enable all family
justice procedures to be transparent and available for scutiny, without
compromising the identity of children and families.
Tessa Boo, London , W11 1NR
I have practised as a barrister
for twenty years, in and out of the family courts in this country. From
top to bottom (judges down to the lowliest social worker, Cafcass officers
and soi-disant childcare experts) all the people involved (with odd
exceptions) are lefty-liberals. The 'best interests of the child' appear
to be to separate the child from its father (who is presumed to have
done something wrong otherwise the case wouldn't be at court in the
first place) and ultimately to take the child into care to feed the
vast 'childcare industry' that has grown up in the judicially imposed
secrecy of the 'family court'. Common sense has no place in these courts
where experts' opinions - based largely on fashionable theories by academics
(whose own child-rearing often doesn't bear too much scrutiny) trying
to make a career for themselves - tend to decide the case.
philip walling, Newcastle upon Tyne,
In my experience as an FNF member (families need fathers), this is by no means an extreme case. Fathers are particularly prone to being excluded from their children’s lives on the so-called expert advice of often all female cafcass offices. It may not be particularly PC to say this, but it also happens to be a fact. If they have nothing to hide why the secrecy? Indeed!
Angelo , Bristol, UK
for goodness sake how many more travesties of justice must occur, before the powers that be, grant parents the right to a fair and open court hearing. to have your child taken away, based on opinions of social workers and expert witnesses, surely ,warrants scrutiny of the highest calibre.....a decision to remove a child should be avoided at all costs and if this means that open courts and press participation ensures that this happens, then so be it! nothing can be gained from the family courts remaining secret, what lessons can be learned from mistakes made, but then swiftly hidden....we are not that naive as to believe this doesnt happen surely!!! accountability for professionals and dare i say social workers that commit perjury or cause harm must be dealt with.....we are not blind, nor will we be blinded by the grossly inaccurate reports that are dished out daily in the courts. i can hear people saying THATS NOT TRUE...then why doesnt someone prove me wrong, they cannot....
sam, manchester, uk
Excellent article. Secrecy is the mother of incompetence and corruption, and in the family courts, secrecy has had a huge litter!
Boris, London, UK
At least lift the secrecy on contact cases where there is no suggestion of foul play. This would then show the miscarriages of justice for what they really are.
Four years in family court,
five judges, useless solicitor, £15,000 spent, implacably hostile
ex-wife, evidence of PAS that is ignored by unqualified CAFCASS officers
who prefer not to upset mother.
This is an extraordinary civil rights abuse that no one in power gives a flying fig about, and which the majority of those who work in family law seem blind to.
The phrase 'best interest of children' is repeatedly trotted out, but no one has precisely defined it, and CAFCASS are their own masters - they make it up as they go along.
Treat every case on its merits? - NOT.
richarddorset, worcester, UK
All secrecy in the UK family courts should be abolished making them transparent and open to public scrutiny, to incorporate the present laws being used in the criminal courts concerning the identities of individuals/cases.
The public/media should be admitted into family courts. Any person feeling that they have been unjustly treated should be free to complain publicly. No parent or family member claiming that they have suffered an injustice should ever be restrained by secrecy rules from making public their own names or any details of family court proceedings.
Layton Bevan, Neath, Wales
This is not just a UK problem, it happens in the US, too. My wife's and my personal experiences in both countries have convinced us that the secrecy serves primarily to protect the incompetence of social workers and their bad decisions. As foster parents in both countries (at different times) we cared for a number of children but were left in no doubt that if any child made any complaint against us for any reason, whether founded or not, we would be judged guilty in secret and our lives shattered, with no recourse or appeal. Although we cared deeply for the children in our care there came a point when we could no longer expose our own family, children and grandchildren to this vicious regime and we no longer have any contact with social services. In the meantime there are children crying out for a caring home but we can''t face the risk and above all the stress of the system as it stands. If this secrecy was stopped, would we consider fostering again? Absolutely!
Disillusioned ex foster carers, Surrey & Massachusetts, UK & USA
I welcome the possibility of transparence in this antiquated close shop ritual that is family court, I have just gone through a year long court battle for custody of my son and although I was successful I was mortified at the inept so called experts. Coming from a highly regulated industry into the shambolic court system was more horrifying than you can imagine, no clear procedures everything is done had hock and the last person who matters is the child, for all the posturing that is performed by the so called experts. It is time that the government dragged these overpaid under worked people into the twenty first century, making the system fair accountable and value for money, finally putting the needs of the unfortunate families as a priority over feathering one another’s nests.
tony, warrington, cheshire
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