5/3/09 (UK):
Family Courts To Go Public
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Family courts will be transformed next month when the media is granted access to this traditionally private enclave of the English justice system. Divorce cases, child protection hearings and domestic abuse injunctions are among the cases that journalists will be able to cover for the first time.
The move is highly controversial, with lawyers and children's groups saying it will harm children, deter witnesses and lead to delays.
However, Justice Secretary Jack Straw disagrees. Announcing the changes in December last year, he declared that greater media access would "increase the open-ness of family courts while protecting the privacy of children and vulnerable adults".
Stephen Cobb, senior barrister and member of the Family Justice Council, which aims to improve the courts system for families, is among those to oppose the changes. His main concern is the changes will deter witnesses from coming forward.
Fears for witnesses
"Some witnesses may be deterred from giving evidence if they know cases are being heard in front of journalists or that they may be named," he says, adding that, "witnesses can be required to attend, but it is not a good thing for a case for a witness to come under duress."
Domestic abuse injunctions could also suffer due to media inclusion, he believes. "Many of the women who are bringing these cases are already very vulnerable and having a media presence adds to that," adds Cobb.
Reporting restrictions could inadvertently give the public a distorted view of proceedings rather than greater clarity. Witness statements are a case in point. "In criminal cases, the evidence is almost entirely heard orally by a jury," explains Cobb. "But in family cases much of the evidence is written, particularly the chief evidence of a witness.
"While journalists will be able to report on the cross examination of a witness, they will not see the written statement, so they will only be able to present a limited picture."
This could be damaging for children's professionals in particular, suggests Ian Johnston, outgoing chief executive of the British Association of Social Workers. He fears that the media will be keen to use its new powers to focus on criticism of the profession rather than present a full picture of proceedings.
Media frenzy
"Our experience, particularly in recent months, is that there has been a media frenzy surrounding Baby P and there are fears about how this is going to pan out," he says.
The way The Times reported Straw's changes is unlikely to allay such fears. It said: "The move could mean that social workers and expert witnesses who fail children, and now enjoy the protection of anonymity, will in future be named publicly when criticised by judges."
Bob Satchwell, executive director of the Society of Editors, is more upbeat about the changes. He believes that media access will remove "some of the mystery of the courts", could speed up the process and help create confidence in family courts.
"We believe that any concerns on the part of judges, lawyers and other professionals will be swiftly overcome when they see the benefits of shining light on to their important and valuable work," he says.
Another concern for Johnston though is that Straw's emphasis on openness is seemingly at odds with Children's Secretary Ed Balls's refusal last year to make public the full serious case review into the death of Baby P. "On one hand, Balls has refused access to details of this already high-profile case and, on the other, the government is perfectly willing to allow the press access to personal family issues affecting vulnerable children. It makes no sense."
Celebrity cases
The media's focus on celebrity is another area of contention. The Association of Lawyers for Children's spokeswoman Barbara Hopkin believes that "the media will only focus on the more salacious cases and those involving celebrities".
Satchwell firmly denies this, saying "celebrity cases may well attract headlines but they will only be a tiny fraction of the work of the courts that will be reported".
Media access is only one part of Straw's plans. He is also looking to publish anonymised judgements of cases. This would give children involved the chance to read more detailed accounts at a later date and the public a greater insight into the range of cases family courts deal with.
But while these online judgements are being piloted in three areas - Leeds, Wolverhampton and Cardiff - the wider changes surrounding media access will not be tested.
Hopkin says this is a mistake. "The government believes that these changes will be fairer to children and will not harm them. But where is the evidence? Are there any guarantees that anonymity will be preserved? They didn't even pilot this."
Cafcass' concerns
Cafcass, the family court advisory service, is also concerned about the short timescale from last year's announcement to the proposed launch next month. Chief executive Anthony Douglas is still hopeful that this can be put back, as "for a major policy like this at least six months is needed to ensure that staff are trained, especially to help families understand what the changes mean".
Douglas also questions whether children and young people actually want the media to cover cases. "Media exclusion is up to the judge, not children," he says. "I suspect that if they were asked they would say they didn't want the press there."
This issue of children's and young people's support for the plans is one of the main battlegrounds surrounding the changes, with both government and opponents claiming young people back their cause.
According to a consultation conducted by Cafcass and the Family Justice Council three years ago, children only wanted to give the media access if they retained the right to refuse permission. A government consultation carried out with children in the same year showed greater support for media access, but with only 15 out of 32 children in favour and 13 against, it was hardly a ringing endorsement.
Children's privacy
For Children's Rights Alliance for England legal director Katie Swaine, media access to family courts is part of a wider erosion of children's privacy.
"Last year, the UN Convention on the Rights of the Child criticised the government for the way children's privacy was protected, such as naming and shaming those who are subject to antisocial behaviour orders. Instead of acting on the UN's concerns, they have made the situation worse by further undermining their right to privacy," argues Swaine.
The government is now in talks with senior judges to hammer out details of the changes, including the circumstances when media can be excluded.
A Ministry of Justice spokeswoman says that likely scenarios for exclusion are "if it is in the best interests of children and for the safety and protection of parties and witnesses including those with learning disabilities".
Cobb says this is still too vague, adding that one possible ban could be when identification of a child is unavoidable if any details in the case are revealed.
He hopes a firm checklist of exclusions is decided on soon to avoid legal argument over a ban between the court and the media. "This could lead to serious delays while they argue over this. The system is already beset with delays," he adds.
Swaine is pessimistic that media access will be a success and hopes that the whole policy is swiftly and effectively reviewed.
Media Access:
Benefits
- Media access will subject family courts to greater scrutiny, making those involved in cases more accountable, expose poor practice and eradicate delays
- The public will gain a greater insight into family law, giving a fuller picture of issues such as child protection and could lead to improved public confidence
- A child's anonymity is guaranteed and, if media access poses a threat to welfare, journalists can be removed
The dangers:
- The media may present a distorted view of proceedings by focusing on salacious details and celebrity cases. They also won't have access to written evidence
- Witnesses could be deterred from giving evidence if the media is present and professionals run the risk of being unfairly named and shamed
- A lack of detail over exclusions of the media could result in legal argument between the judge and media and subsequent delays to proceedings
Peter Baughan, senior solicitor at Mills & Reeve, shares his views on opening up family courts:
"The flipside of openness is the loss of an individual's right to privacy. But it's important for society to be aware of situations such as Baby P, so we can help prevent them and address any flaws in the system. The rules apply to a diverse range of cases and they sit more comfortably with some than others.
Family courts tend to do a difficult job well, and openness should help dispel the widespread lack of confidence in the system.
Many press articles are hostile towards social workers, despite many of them performing a good job, often while working in a demotivating environment. The publicity will ensure attention is focused on the proper issues such as resourcing, retaining experienced social workers, and preventing the high turnover of staff.
Publicity may draw attention to the large number of dreadful care cases. As a society, we need to be aware of cases such as Baby P before we can address the problems.
There are numerous problems with openness. Some argue that professional witnesses such as medical experts may be reluctant to deal with cases if their views will be scrutinised by the media. I don't accept this. Rigorous scrutiny should help raise standards. I acknowledge the risk of the press demonising individuals, but hope that openness will show the complexity of these cases, and that demonising an individual is rarely justified.
Another concern is that vulnerable people may be deterred from seeking help if it would lead to publicity. However, the proposals leave the final decision with judges who may take a cautious approach to disclosure.
This is an area ripe for so called 'satellite litigation', where a separate legal argument could be made about whether a case should be made public. This is unwelcome - the last thing people involved in court cases need is even more to argue about. Appointing an independent decision maker would avoid these problems.
It should also be remembered that most cases will be of little interest to the press. The 'hook' is likely to be famous people, or salacious cases, or those which do concern a wider public interest."
© X-Pro 2009
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