As a proposed law aims to bring greater transparency to family courts, Cassandra Jardine examines what happens when personal disputes are exposed to public scrutiny.
By Cassandra Jardine
Published: 6:06PM GMT 17 Nov 2009
Photo: Clare Kendall/Geoff PughThe young mother sitting a few feet away from me in a family court is red-eyed with grief. Last year, her three children were taken from her and placed in foster care because she was deemed incapable of meeting their need for a calm, safe environment. She came to court hoping to get them back now that, she claims, she no longer keeps dangerous company. Her eldest child has begged to return to his mother; she wants him to be allowed to address the judge, who decides this is too stressful for the child. Sensing that the case is going against her, the mother accuses the local authority of gross injustice to her and her children.
Her raw emotions jar with the hushed atmosphere and formality of the proceedings. Wigs and gowns are not worn in the family courts; the judge and the barristers representing the mother, the local authority and the children's guardian ask questions in a gentle manner but there is a sense of a juggernaut ploughing on towards an inevitable conclusion.
The manager of the local authority's child protection team takes the oath. As she gives her opinion on the fate of the children, it is clear that there is very little room for manoeuvre. No one is considering returning these children. The mother hasn't harmed them physically or sexually, but her erratic behaviour, violent associates and emotional incontinence are damaging them. Eloquently, thoughtfully, the social worker gives her opinion that the children must be kept from her if they are to learn boundaries, develop emotional stability and avoid a future of chaos and crime. The only bone of contention, within the courtroom, if not the mother's mind, is whether it would be harmful for the children to see their mother twice a year.
That much I can report without transgressing the current rules on reporting on the family courts, which may soon be extended in a series of clauses in the Safeguarding Children Bill to be announced in the Queen's Speech today. These will continue the contentious move towards opening up the family courts to press scrutiny by making expert witness reports and judgments available, while maintaining the anonymity of the families involved.
As the law stands, I can report a case without identifying the family. No one disagrees with that, but even naming the local authority might be too revealing. Nor am I permitted to see the medical and psychological reports on which the local authority's opinions are based: although the mother's inchoate distress seems to support the diagnosis of a "personality disorder", anyone under such pressure might behave similarly.
Yet I am fortunate – if that is the right word – in being allowed to witness this painful scene because, to promote understanding, all concerned have agreed to my presence.
Until six months ago, I could not have been there, even if the mother had begged the judge to allow access. Unless the case was being heard in a magistrates' court, I could not have reported on it because family cases at county court level and above were conducted in secrecy. That changed at the end of April, after a prolonged campaign by journalists, politicians and parental pressure groups. Many who work in the family courts resisted press access but Jack Straw, the Justice Minister, pushed it through. He had little choice.
For years, the secrecy of these courts had become an increasingly vexed issue. A series of criminal cases had opened eyes to the possibility that experts could sometimes hold pet theories and be wrong. Innocent parents, including Angela Cannings and Sally Clark, were sent to prison for murdering their children when, it later emerged, the evidence of certain experts, including Sir Roy Meadow on Munchausen's Syndrome by Proxy, was far from conclusive.
If such miscarriages of justice could occur in criminal proceedings, it raised the question of how many more blameless people were being punished in the "secret" family courts. Concern focused on two specific areas: the removal of children into care or adoption on the basis of expert witness reports, and parents (mostly fathers) who were prevented from seeing their children because of vindictive ex-partners.
High hopes, and dark fears, preceded the change but, half a year later, it seems to have been a damp squib. "You're the first journalist we've seen since day one," says the clerk at the Central Registry in London, where many family cases are heard, when I pop along on spec. Her list reveals nothing about the local authorities involved or the nature of the cases, only those that are closed to the press because they involve adoption. Moving from one court to another, I find an aggrieved father arguing over school fees, a happy mother whose daughter has been returned from foster care and a deserted courtroom where a judge in a Garrick Club bow-tie reads out "pronouncements" of finalised divorces. Without a steer towards an interesting case, it's a pointless exercise.
"We have conned you," says Toby Hales, a family law specialist with solicitors Hodge, Jones and Allen. "Most cases are boring. You were only interested in coming because of the mystique of secrecy. Journalists said they wanted to report on processes but, after the first day, I only saw reporters when there was a sensational divorce involving a celebrity.
"The sad thing is that there are legitimate public interests to be served. You could be scrutinising local authority actions. Judges criticise social workers daily, mostly for delays in decision-making involving children. This is not due to careful thinking, but inefficiency. Social workers are often on sick leave, they fail to file documents or circulate reports, and do not instruct experts with the prescribed time-scale."
He cites the case of a four-month-old baby whose mother has mild mental health problems. In the spring it was decided to put the child in temporary foster care while arranging to send mother and baby to an assessment centre. "Three months later the referral had not been made, and the mother and child had missed out on the crucial bond-forming time. It's a disgrace."
Another case which Hales believes "places the whole system in disrepute" concerns a good father denied access to his children by their mother. Court proceedings have cost him £15,000 and led nowhere because the judge has repeatedly refused to use his powers to force the mother to comply. "The law says parents should have access, but that man has been given every incentive to give up."
Local authorities might emerge as the villains, but they are under intense pressure. The Baby P case has resulted in a sharp rise in child protection cases, and yet more work for social workers who were already over-burdened. Coupled with a 3,000 per cent drastic rise in the cost of bringing such cases (from £150 to £5,025), there has been an almost equally steep drop in guardians available to safeguard them as the Children and Family Court Advisory Support Service has stopped paying freelances and capped legal aid fees, which encourage solicitors to do the bare minimum. There is much to report on from the family courts.
But there is no agreement on whether the proposals to extend openness are desirable. John Hemming, a Lib Dem MP who hears from 700 aggrieved parents through Justice for Families, wants experts named "so we can compare cases"; Julia Brophy, a sociologist at Oxford University, believes "assessment by media is very dangerous."
Campaigner Penny Mellor says: "You can't let outsiders see reports of sexual abuse but, where social workers and doctors have done a bad job, they should be named and shamed and, where they have done a good one, they should be praised."
Blame could create still further problems in bringing child protection cases. "I don't think doctors would want to do the work," says Judge Nicholas Crichton, who works at the Family Proceedings Court in central London. "As for publishing judgments, there are logistical problems. I am here from 6.30 am most days, and don't leave till 7 pm. Anonymising judgments takes time."
Yet clinging to secrecy inevitably fuels rumours of injustice. "I don't accept the word 'secrecy': we are protective," says Crichton. "These cases all relate to troubled people and damaged children. I rarely see a case that shouldn't have been brought. Often, I think, 'Why not sooner?' If a case doesn't go a parent's way, many say it was unfair but I hope you have seen that we conduct these cases with great care."
I have, but more transparency lies ahead. We must all – journalists, researchers and pressure groups – make sure we use it, and use it responsibly.
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