Family Courts are more Secret than our Prisons
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| Family Courts are more Secret than
our Prisons and that must change By HARRIET HARMAN, MINISTER FOR FAMILY JUSTICE 04 June 2006 Source: Mail on Sunday 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 Source: 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. |
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