Here is our submission to the Transparency Review being undertaken by the President of the Family Division, into the current arrangements which regulate access by journalists and the public to, and the reporting of, information concerning proceedings in the Family Court. It is very important that Family Courts are more open to the public so that the professionals can be made accountable for their behaviour, false reporting and removing children instead of keeping families together under section 17 of the Children’s Act. We will report back when we hear any news from this review.

Monday 11 May 2020

Comments on the composition of the Review Panel

We have serious concerns about the composition of the Review panel appointed by Sir Andrew McFarlane.  There is grave doubt about the impartiality of two panel members, and about the relevant experience of two others.  We call on the President to sack this Panel and appoint people with relevant expertise and a proven track record of impartiality.  If the fathers’ lobby, which denies domestic violence, is to be represented, so must the voices of mothers be heard.

Dr Eia Asen (consultant child and adolescent psychiatrist) with the Marlborough Family Service.  Concerns about his qualifications and his practise have been raised because he is registered with the General Medical Council as Dr Karl Michael Asen yet practices under a different name.  As an expert witness in cases of domestic violence he almost always finds mothers guilty of “Parental Alienation”, the discredited theory of an American psychiatrist, “a monster”, who promoted paedophilia and believed that 90%  of mothers were liars who “programmed” their children to repeat their lies.  Dr Asen appeared as an expert witness in front of Sir Andrew McFarlane, who agreed with his report against a mother and refused her appeal; he has connections to CORAM BAAF, the third largest adoption agency in the UK.   These questions raise serious doubts about his influence on the Review.

Anthony Douglas CBE (former chief executive of CAFCASS).  It is public knowledge that he was instrumental in allowing Families Need Fathers (FNF) and Fathers for Justice to become key stakeholders and members of CAFCASS Service Users Interest Group.  He publicly promotes these misogynistic and domestic violence deniers who have influenced current developments within CAFCASS and the whole family justice system.  Under his leadership, FNF displayed their leaflets in CAFCASS offices and he spoke at events run by FNF on Parental Alienation.  Given this level of support for the fathers’ lobby, which overwhelmingly hate mothers, Mr Douglas cannot possibly be impartial when it comes to the Review. Clare Dyer (former Legal Editor of The Guardian) has written very little about the family courts, unlike some other Guardian journalists so presumably has very little experience of them.  Why was she chosen?

Nicola Shaw CBE (Executive Director of National Grid).  Ms Shaw is involved in Network Rail and the National Grid!  What possible connection does this have with the family courts and how can she contribute any expertise to this review, unless the intention is to push for more privatisation of children’s services? 

Comments on the questions raised regarding transparency in the family courts

Introduction

The most fundamental relationship of society is how women, men and children in families relate to each other.  Decisions and judgements about this relationship are constantly being made in the family courts: which parent or other family member the children will live with, how much contact the non-resident parent will have with the children, whether children will be taken away from families altogether either permanently (adoption) or short or long term (fostering).

 Despite the fact that mothers are the primary carer in 90% of families and that this is the primary relationship on which children depend for wellbeing and protection, the family courts often treat children as if they didn’t need a mother and any other parent, including a violent father or the “corporate parent” will do. They take little account of the trauma they are causing by separating children from their mother and siblings.

In cases involving domestic violence, the vast majority of cases that go to the family courts, the mother is often treated as culpable for the father’s actions while the violent father’s supposed right to contact with the children are prioritized over children’s and women’s safety.

Crucially, judges and other professionals are constantly helping to shape policy about family relationships in these courts and yet there is no public scrutiny or accountability because decisions are made behind closed doors.  This lack of public scrutiny and accountability of something as fundamental as family life is scandalous and barbaric and must be ended.  Just as the criminal courts are open to scrutiny and challenge, so must the family courts be.  There is no justification for secret family courts and they must immediately be brought into line with the criminal courts as a matter of urgency, and of human rights. 

Since we wrote the bulk of this evidence, the Covid19 lockdown has been in effect for almost two months during which time remote hearings have been introduced in the family courts.  We ask that our evidence to the Nuffield Family Justice Laboratory (which conducted a rapid consultation on remote hearings) be considered alongside this evidence.  Our concerns about opening up the courts are magnified by the unfairness of many remote hearings, which sometimes exclude the mother or other primary carer of the children concerned, and the press/legal bloggers are always excluded.

Is the line currently drawn correctly between, on the one hand, the need for confidentiality for the parties and children whose personal information may be the subject of proceedings in the Family Court, and, on the other hand, the need for the public to have confidence in the work that these courts undertake on behalf of the State and society?

No, the line currently drawn between the need for confidentiality and the need for public scrutiny of the family courts is not correct.  

Mothers (and wider families) 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. 

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. 

Reporting and other restrictions greatly limit any public scrutiny of decisions made by judges/magistrates and undermine efforts to hold social workers and other professionals publicly accountable for the decisions they make.  This is an increasingly urgent matter: there are now more children in care than at any time since 1985 and there has been a steady increase in numbers each year for the past 10 years.  There has been a similar rise in the number of contact/residence cases being heard in the family courts, along with a nearly 20% increase in litigants in person following the removal of legal aid.  A high proportion of cases in private law involve domestic violence (estimates suggest between 70-90% of cases).   

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. 

What steps should be taken to achieve greater openness?

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. 

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 . . .”. Thirteen 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. 

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.  NCCPR estimates that about 41% of all foster children live in a place where court hearings are open, and there has been no negative impact of the open courts. 

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. 

Observations on the Practice Guidance: Family Court- Anonymisation Guidance issued by the President on 7 December 2018

We reiterate the importance of making it mandatory for judges to publish decisions (including those in the lower courts) in order to ensure full public scrutiny.  Research funded by the Nuffield Foundation in 2017 showed only a small percentage of judgements are published –  Transparency through publication of family court judgements

We agree with the importance of protecting children and families from being publicly identified (unless they have chosen to do so themselves) and that preventing “jigsaw” identification is important.  However, it is crucial that where there has been criticism of a Local Authority, a social worker or other professional, that they should be named in order to be held accountable for their decisions/judgements.

We strongly disagree with the following standard heading which appears on court orders: 

“This judgment is private to the parties and their lawyers.  They may not show or otherwise communicate this judgment or its contents to any other person. Any party or their lawyers wishing to show or inform any other person about the judgment or any other person wishing to see the judgment must first of all come back to court and ask the permission of [insert name of judge].

The problem with this requirement is that someone without a lawyer must be able to discuss their case (and the judgement) with close family and with an appropriate advisor or advocate.   Family law proceedings are often very complicated and difficult for a lay person to understand.  Once a negative judgement has been handed down, unless a lawyer thinks there are grounds to appeal, legal aid stops (and in private proceedings there may never have been legal aid).  But if a mother is faced with her children being placed in long term foster care or adopted, she must be able to seek advice and get support without the fear of being in contempt of court.   Assuming the requirement that judgements can only be published via the official process remains in place, it would be clear that the mother is not allowed to publish it herself eg on social media.  

Observations on the President’s Guidance as to reporting in the Family Courts, issued on 29 October 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 indicated above. 

11 May 2020

Crossroads Women’s Centre

25 Wolsey Mews

London NW5 2DX

07958152171

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[i] One in five children referred to Children’s Services Prof Andy Bilson 2016 https://www.basw.co.uk/system/files/resources/basw_43143-3_0.pdf

[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