Open the family courts – our evidence to the President’s Guidance on reporting

Comments by the Support Not Separation Coalition (co-ordinated by Legal Action for Women) on Draft of President’s Guidance as to reporting in the family courts – submitted 30 June 2019

We welcome proposals to make it easier for journalists and legal bloggers to attend family court hearings and report on them.  This is a useful step in ending the secrecy of the family court, where decisions are made behind closed doors, and consequently avoid public scrutiny. 

However, the issue of “transparency” goes well beyond journalists attending and/or reporting on cases.  As a result of restrictions on children proceedings, mothers are not allowed to speak about decisions made about their children, and are limited in the advice and support they can seek if they are not legally represented (as many are not, especially at appeal stage and also in private family law proceedings). This is because they are not allowed to share court documents, and are also prevented from having the support of close family/friends in court with them.  As a result, mothers are isolated and vulnerable during a legal process which is bewildering and can lead to the most draconian and tragic decisions about their children’s lives often on the basis of inaccurate information, outright lies and prejudices from which they have no way of defending themselves. 

We make the following comments in the hope that they will be considered by the President in the course of the Transparency Review as reported in the View from the President’s Chamber (May 2019).  It is urgent for this Review to take a comprehensive look at all the issues surrounding the secrecy of the family courts.  

The family courts should be open in the same way as criminal courts, so that all those involved – judges, lawyers, social workers, psychologists/psychiatrists, other health professionals or those giving expert evidence can be publicly held to account for their judgements, the quality of their representation and the nature of the evidence they give. 

The lack of public scrutiny has devastating consequences for the lives of thousands of children separated each year from their mothers and wider families without any public recognition of the injustices so often involved.  It means there is no scrutiny of sexist or racist judgements, of prejudice against disabled mothers and/or their children, and other prejudices based on age, income, class background, etc., which single mother families are most likely to suffer. 

There is some research quantifying this discriminatory treatment which results in, for example, almost half of all children in ‘deprived areas’ being referred to Children’s Services[i] But the court judgements which follow such interventions are overwhelmingly hidden from public view and therefore mothers whose children have been taken from them face an uphill battle getting them back and most never succeed, to the long term detriment of the children’s health and well-being. 

Family courts in a number of countries and in a number of states in the US have been open for many years.  New York state opened its family courts in 1997, when its Chief Justice Judith Kaye announced “Sunshine is good for children.”  Her deputy at the time, who then succeeded her as Chief Judge, Jonathan Lippman, said “It has been 100% positive with no negatives . . . our worst critics will say it was the best thing we ever did.  Their fears were unfounded . . . “

The National Coalition for Child Protection Reform (NCCPR)[ii] reports that among the beneficial effects of opening the courts was that it helped to raise the fees paid to lawyers which led to a better standard of representation and also led to funding for repairs to dilapidated court rooms.  13 other US states have child protection proceedings open to the press and public in some of the largest jurisdictions in the country including Florida, Texas and Illinois.  Oregon has had open hearings for 25 years and of all the states to open proceedings only one closed them again after an experiment in Connecticut ended.  NCCPR estimates that about 41% of all foster children live in a place where court hearings are open. 

The law on anonymity for rape victims[iii] which prevents publication or identification of them throughout their life, including via “jigsaw identification” could easily be adjusted to ensure that children (and their families) who come into the family court are afforded the same level of anonymity.

Judges should be required to anonymise and publish all judgements (including those made by lay justices, and the lower courts) as a matter of course.  The present arrangements leave it up to individual judges to do this and means the majority of judgements are never made public.

Mothers and other close family members must be allowed to discuss their case with those closest to them, including sharing expert evidence with them, and with their advocates especially when they are not legally represented. With the proviso of anonymity they should also be able to disclose documents to any journalists who may be reporting on their case.  Denying mothers the opportunity for support at a time when they are distressed and vulnerable is an abuse of their human rights and can lead to abuses of the children’s human rights also.

It should be an automatic right for a mother or family member to bring a close person into court with them for support.  It should not be for opposing parties to be able to determine who can come into court.  This is particularly important in the context of significant cuts to legal aid which have led to a big increase in the numbers of people representing themselves in the family court[iv].  Again, this is crucial to ensuring that mothers have support in fighting for their children at a time when they are particularly vulnerable and must not be isolated from their support network.  All those who come into court would be subject to the same legal requirement to protect the anonymity of the children/parents involved. 

See our Suffer the Little Children & their Mothers Dossier published in January 2017 for a more detailed analysis of the issues mothers confront in the family courts.

Nina Lopez & Anne Neale

30 June 2019  

[i] One in five children referred to Children’s Services Prof Andy Bilson 2016

[ii] Civil Liberties Without Exception: NCCPR’s Due Process Agenda for Children and Families by Richard Wexler, Executive Director, first published August 2008, updated March 2017

[iii] Sexual Offences (Amendment) Act 1992

[iv] Around the time that the Legal Aid, Sentencing & Punishment of Offenders Act 2012 reforms were implemented, there was a marked increase in the number and proportion of cases where neither party were represented, with an equivalent drop in the proportion of cases where both parties were represented. In 2018, neither the applicant nor respondent had legal representation in 37% of private law disposals, an increase of 18 percentage points from 2013. Correspondingly, the proportion of disposals where both parties had legal representation dropped by 13 percentage points over the same five-year period.  Guide to Family Court Statistics, Ministry of Justice, 28 March 2019