18 Dec 2013

Why are family courts so secretive? And will it change?

They are so private that even complaining about a case could put you at risk of imprisonment for contempt of court. But has this secrecy undermined public confidence in the family courts system?

A woman is taken into hospital to give birth. The doctors give her a Cesarean against her will. She is put under anaesthetic so she can’t protest and the baby is taken away.

The baby is put into adoption and she never sees it again.

That was the story of Alessandra Pacchieri, 35, an Italian woman in England this year. On the order of a British court, Essex County Council took over custody of her child on the basis that she couldn’t look after it.

Her case made headlines for weeks.

And the media fuss was exacerbated by the fact that reasons for the court order and the order itself were kept secret.

It’s not the only case where the both the judgments made by family courts and the secrecy around the judgments has been implicated in such tabloid horror stories.

In others, a woman’s children are taken away after her husband is imprisoned for rape. Grandparents in Essex were refused a say in the forced adoption of their two-year-old grand-daughter – a judgment just overturned this week on appeal. In another case a father’s filmed and Youtubed his newborn baby being taken away from him and his wife for forced adoption while they were still in the hospital.

The secrecy around the judgments in family courts makes them more open to an abuse of the justice, claim newspapers:

“Many children are removed on the basis of flimsy accusations by social workers: that the parent might shout at the child when he or she becomes a teenager (potential emotional abuse); that the mother has taken a sickly child to the doctor too often (fabricated illness syndrome); or – extraordinarily – simply because the mother has been in the care system herself or suffered depression as a teenager,” fumes the Mail.

It is difficult for outsiders to verify such claims because of the reporting restrictions in place, where journalists, authorities and even parents are gagged from complaining about the case or even discussing it. Those who breach the gags can be sent to prison.

Liberal Democrat MP John Hemming is one of the figures who has come out against the curent system: “People have been going to jail for complaining about what is done to them, and that is wrong.”

Private or secret?

The majority of court cases in UK courts are open – members of the public and reporters are free to enter and the judgments are publically available – but cases involving children or the mentally incapacitated are subject to restrictions: details of what goes on in the courtroom must be kept private.

A second law prevents the identity of children in court cases from being revealed. At the judge’s discretion, further restrictions can be imposed and it has become practice to ban any discussion or identification of the expert witnesses, the documents and even the councils involved in cases such as forced adoption. This applies to both family courts and the court of protection, which handles cases of the mentally incapacitated.

The privacy is considered important in protecting vulnerable people in the court system.

But the current President of the Family Division of the High Court, Sir James Munby thinks it has gone too far and that the case of Ms Paccheri in particular has undermined trust in the system.

Loss of trust

He told the Society of Editors meeting in November:

“The law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which, although it is often linked to strident complaints about soâ?called ‘secret justice’, is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse.”

Even if judges feared their decisions would be misreported, it was not sufficient justification for keeping them secret.

The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by the family court, even if the criticism is expressed in vigorous, trenchant or outspoken terms.”

Change coming

This week the appeal judge in the case of Essex grandparents seeking access to their grand-daughter was prompt to agree when Channel 4 News, with the support of those grandparents, requested permission to make the judgement public.

However, when Mr Munby laid out the change he envisaged – he said there would be no quick changes in the law, but first a new set of guidelines on how to interpret the existing rules.

The draft version of these was published in July promising “immediate and significant change” and “greater transparency”. It means more judgements will be published – though after being anonymised and redacted.

He also wants the public to have access to court documents though access will initially be “cautious and limited” and then, finally, potential changes in the law could guarantee more access on a permanent basis.

Rolling back some reporting restrictions, paves the way for more public debate about the judgements themselves.