Family Courts are more
Secret than
our Prisons and that must
change
By HARRIET HARMAN, MINISTER FOR FAMILY JUSTICE
Mail on Sunday -
Sunday 4th June 2006
IT'S
HARD to overstate the importance of the work of the family courts, or the
difficulty of making judgments that affect people's lives for ever. Over the
more than two decades during which I have been an MP, my advice 'surgery' has
seen a steady stream of constituents making heartfelt but contradictory
demands on the issue.
Women
complain that their children have been taken from them; neighbours allege
child cruelty; mothers take issue about violent ex-partners; fathers claim
they have been banned from seeing their children.
As shown
by the case of Mark and Nicky Hardingham, reported in today's Mail on Sunday,
the stakes could not be higher. To take a child from its mother and place it
for adoption can save the life of that child. But a bad decision is no less an
injustice than a wrongly imposed life sentence - both for mother and child.
Similarly, a father denied contact with a child suffers a terrible loss; yet
in some cases failing to prevent a father's visit can put lives at risk. Which
is all the more reason why our family courts should command the confidence of
the public and be seen to operate with fairness and compassion. In this
respect, the system is failing through its lack of openness.
Public
confidence depends on public scrutiny. Something has to be seen to be believed
and justice not only has to be done, it has to be seen to be done. People
don't understand the complexity and ' importance of the work of the family
courts - an unfortunate but inevitable consequence of the fact that they sit
in secret and make judgments behind closed doors.
PUBLIC
confidence in any part of the legal system is necessary for its own sake but
also to ensure people affected by court judgments accept them, and for the
professions involved in the system to be respected.
I have
concluded that it is now impossible to defend a system from accusations of
bias and discrimination if it operates behind closed doors. Even as Minister
for Family Justice, I find the rules make it hard for me to establish what is
going on.
It is my
job to reassure Parliament that the family court system is working properly.
But how can I know? I can't read newspaper reports of cases; I can't just go
and sit at the back of the court, as I can - and do - in magistrates' courts.
And how can MPs hold me to account for a system they cannot see? Parliamentary
accountability for the family courts is wholly theoretical while the system
remains closed. How can the influential Constitutional Affairs Select
Committee conduct investigations into its workings?
And when
we debate family law in Parliament, neither MP’s nor Ministers can really know
what we are talking about. We have to legislate in the dark.
Her
Majesty's Inspectorate of Court Administration can't go in to the family
courts unless the court lets them; yet even the Prison Inspectorate has the
right to enter prisons to inspect without giving notice. In that respect our
family courts are more secret than our prisons.
The
context in which the family courts work has changed significantly and it is
time for us to acknowledge that many of the comfortable certainties of family
life are no longer there.
There
are, for example, many more cases in the family courts today - more than
400,000 a year. There is more divorce, more separation, more couples living
together, greater cultural diversity and growing social problems such as drug
addiction. Once, married people stayed married. Now one in three couples
divorce. Women used to have babies only in wedlock -but, in 2004, 42 per cent
of births were outside of marriage. One third of children now live either with
a lone parent or with one parent and a step-parent.
New
patterns of family life pose new problems for the courts. Courts in the past
would rarely have had to deal .with children of parents who live in different
countries and would never, for example, have had to deal with a child born
through IVF to a woman in a lesbian civil partnership that has collapsed.
Courts
in the past would rarely have had to deal .with children of parents who live
in different countries and would never, for example, have had to deal with a
child born through IVF to a woman in a lesbian civil partnership that has
collapsed.
ATTITUDES have changed, too. It is now recognised that sometimes it is in a
child's best interests to live with the father, not the mother, and that
sometimes it is right to leave a child with parents who have learning
difficulties - with the right support. The main principles are no different,
however.
The
courts have to make decisions when warring parents cannot agree, and work to
prevent cruelty and neglect. And each case must be judged on its merits and in
the child's interests.
But we
need to make the courts more open. Privacy is necessary to protect families
seeking justice - but privacy is not necessary to protect the courts, which
should have nothing to hide. At the same time, we must ensure we have tough
penalties for those who breach anominity restrictions and name children.
We can't
allow a situation where confidence in the family courts grows as their work
becomes more transparent, only for it to plummet through children or parents
suffering the anguish of being identified.
So we
shall include proposals on enforcement when we publish plans to reform the
family courts next month and put them out for consultation.
We also
need to see what can be done to open up the courts in the near future, even
before we change the law.
I have
already held discussions with the most senior judge in the family court, the
President of the Family Division, on directing the High Court - where the most
serious family cases are heard - to let the Press in to all cases (subject to
reporting restrictions).
This
way, when we do come to legislate, we shall be more confident, with a clearer
sense of what the legislation that we are debating will do in practice.
The
protection of children is of the greatest importance. Only when we open the
family courts, and the Press can write about them, shall we be confident that
justice is being done in this most difficult area of law.
By
HARRIET HARMAN
MINISTER FOR FAMILY JUSTICE 2006
The rank hypocrisy of family court
judges
By Camilla Cavendish,
leader writer and columnist on The Times
The Times -
May 24, 2007
I was gratified this week to find
that an article I wrote in December has been quoted in full by the Court of
Appeal. (I only hope there were no typos.) It is flattering that Mr Justice
Munby takes The Times seriously. It is of more import that he decided to
publish his judgment on the case that I wrote about six months ago. For it is
only when judges make their reasoning public that we can start to debate the
grounds on which children should be taken into care.
A few long-suffering readers may
remember that this peculiar case concerns a woman whose baby was removed by
social workers, not because the child came to any harm but because there was a
suspicion that her father might have injured a child from his previous
marriage. That suspicion was never proven, no charges were ever brought and
the child of the earlier marriage was never removed. But a woman who everyone
agrees is blameless has lost her only child – for ever – because she is deemed
to be besotted with a man who may pose a danger.
As so often in these situations, there are complex allegations and flawed
characters. In my view it is questionable whether the father’s inability to
conceal his loathing of social workers makes him unsuitable for parenthood. Mr
Justice Munby has decided on several grounds not to grant an appeal. The case
may still go to Strasbourg, but it will be too late: the child will have been
adopted.
This couple have become a cause célèbre for campaigners who fear that the
Government’s drive to get more children adopted is having a perverse effect on
some local authorities. For the same local authority to leave a man alone with
a child that it thought he had harmed, but to take away another that had not
been harmed, does seem bizarre. Until you realise that the child from the
first marriage was disabled, and older, and would have been hard to place with
an adoptive family. The child from the second marriage was a healthy baby,
just the kind of “adoptive commodity” that local authorities find relatively
easy to place.
I still believe
that ministers were right to want to speed children out of the hell of care.
But they have put social services departments in a strange position. We now
expect them to combine three contradictory roles: to protect children, to keep
families together and to meet adoption targets (which bring financial
rewards). Under pressure, in situations that are not clear-cut, those roles
are bound to conflict.
What is the evidence? Government figures show a significant jump in the number
of babies being taken into care, from 1,600 in 1995 to 2,800 in 2005: a 75 per
cent increase in ten years. While there has been an increase across all age
groups, it is much, much greater for babies. More 10 to 15-year-olds are
removed, but the rate of increase was only 21 per cent.
One possible explanation is that the authorities are now monitoring pregnant
women, especially teenagers and substance abusers. But there are also numerous
examples of relatives being turned down by local authorities when they offer
to take the children of a family member. Some of them may indeed be
unsuitable. But the turning-down sometimes seems very peremptory. John
Hemming, MP, who follows these issues closely, believes that “the
[hard-to-place] children the targets were established to get adopted are not
getting adopted; instead a completely new group of children are being taken
into care, then adopted”. Ministers should be seriously alarmed if a failure
to help difficult candidates find homes were being masked by a zealous pursuit
of babies.
This case has also brought something else home to me: our hypocrisy about
privacy. It is illegal for me to write about most care cases, or to read court
papers, even when the parents involved beg me to. I can generally only write
when judges go public. Yet I have discovered that even as I was writing about
this case last year, painstakingly omitting much of the detail to ensure that
no one could identify the child, her picture, real name and age were being
published in a national newspaper. Not by a journalist, who would have been in
contempt of court. But by an adoption agency, advertising for adopters.
Agencies have to find good homes for needy children. Many do a great job. But
for parents who are routinely told that they will be in contempt if they dare
to reveal the legal proceedings to anyone outside the court, or even to talk
about the child by name, because his or her privacy is paramount, it is
staggering to see their children being advertised like pets.
Contempt of court is a serious matter. Last year Harriet Harman, the Minister
for Justice, admitted in Parliament that in 2005 “200 people were sent to
prison by the family courts, which happens in complete privacy and secrecy”.
Family court judges can send parents to prison for up to six months for
contempt. Two hundred people is about four a week. That is far more than the
number of suspected terrorists we have locked up without a fair trial. So
where are the civil libertarians? One young woman was recently sent to Ashford
prison for kidnapping her child back from social workers and trying to flee
the country. Others seem to be committed for minor breaches of contact orders.
The threat of jail is made time and again, and it is real.
The main justification used for keeping family courts secret is to protect the
identities of children. It is the argument used to gag parents and the media.
How strange that seems when a little girl, whose family struggled to get the
right legal advice to keep her, can be paraded around the country.
Every judge in these adoption cases can decide to make their judgment public.
Until they do, the pretence of privacy will be nothing but rank hypocrisy.
Link:
http://www.timesonline.co.uk/columnists/camilla_cavendish
