Monday, October 20, 2008

Britain: More open justice for families in the courts. Minister to curb secret hearings at last

Family courts are to be opened up to public scrutiny in response to mounting criticism from parents whose children are taken into care that they are victims of "secret justice". Jack Straw, the Justice Secretary, plans to announce the change next month to create more transparency in the family justice system while seeking to protect the welfare of the child, The Times has learnt.

The move to open family courts to the media, which is supported by most judges but opposed by many social workers who present applications for care proceedings to courts, follows growing controversy over their decisions and the way that they operate. Earlier this year The Times launched a campaign to reform the family justice system and open up the courts amid accusations that they were operating in a "conspiracy of silence".

Details of how far the reforms will go are still being finalised. But the move towards greater openness will amount to a U-turn from the policy of the last Lord Chancellor, Lord Falconer of Thoroton, who changed his mind about admitting the media after consultations with children and children's groups.

Britain's most senior family judge backs the reforms today in an interview with The Times. Sir Mark Potter, President of the Family Division, favours opening to the media all care cases involving the removal of children from home other than for adoption, a highly sensitive area that ministers and judges agree is a special case. In private disputes between divorcing couples over money or children, judges should have discretion to exclude the press, Sir Mark says.

Greater openness would help to dispel the "myths and inaccuracies" that have grown up around the workings of the family courts. "It is my firm belief that when people see these cases in action, and the extreme care with which they are dealt - and the fact that so much of what is said comes from interested and disgruntled parties not reporting the matter objectively - it can do nothing but good for the system," he says.

Ian Johnson, chief executive of the British Association of Social Workers, was unconvinced that opening up care proceedings in court would lead to improvements. "Social workers are very concerned that children's fundamental rights to privacy are preserved," he said. "The nature of some of the information dealt with in family courts should just not be in the public domain. I just don't agree with this argument that having the press there will result in better social services."

But John Coughlan, spokesman for the Association of Directors of Children's Services which represents senior social workers, said the organisation would back more openness provided it was done carefully. "We believe that, as long as we can guarantee absolutely confidentiality and the press can be reasonable and do not report in a way that affects the outcome of a case, there is a public interest issue," he said. Mr Coughlan said that these are some of the most draconian powers the state holds and that "the public wants to see how they are exercised".

NSPCC, the children's charity, opposed openness but suggested more judgments from family courts should be given in public and then made anonymous, but only where children's interests were protected.

Original report here

A secret state is operating in Britain in which families are being torn apart

I began writing about parents whose children were being removed by social workers after two chance meetings. One was with a couple who had taken their daughter to A&E with a leg injury, only to have both their children forcibly removed into care and returned only after a legal battle. The other was with a mother whose daughter had said that Daddy, who never lived with them, was touching her in bad places. A psychiatrist who never met them, and was not cross-examined in court, said that she had coached her daughter to lie. She was sent to live with a man her mother thinks is a paedophile.

As I spoke to more parents, patterns emerged which convinced me that these two cases were not aberrations. England and Wales are operating a secret state, where almost any discussion of your case is prevented to protect the "privacy of the child". Where courts only need the word of an "expert" to remove your child. And where some social workers are jumping to wholly erroneous conclusions which tear families apart.

Court of Appeal judges played an important role. Judges such as Justice Judge, Ryder and McFarlane all chose to make public their scathing indictments of local authorities, social workers and/or expert witnesses in individual cases. They made it possible for me to write about those cases.

Sir Mark Potter presided over the High Court this summer, where The Times challenged some reporting restrictions in the case of a man who was jailed for helping his wife to help her son escape from foster care. Sir Mark, in a spirit of openness, released more documents to The Times than we had hoped for - documents that reinforce my belief that that case is a gross miscarriage of justice.

Sir Mark's call for the opening of the family courts to the media is significant. He believes that greater scrutiny will show that the courts generally work well. The argument I have always made is that we should put that to the test. I believe that some social services departments and experts are consistently seeing abuse, especially "emotional harm", where there is none. And that some local authorities are flagrantly ignoring the legal requirement that there should be minimum intervention in family life. We cannot prove that until the courts are opened up.

There is a powerful lobby against openness, made up of those with a vested interest in avoiding scrutiny. Sir Mark's comments today will surely help to shift the power towards those who want to open up the secret state and let the public judge for themselves.

Original report here

Media must be allowed into family courts, says Sir Mark Potter

Britain's most senior family judge has said that family courts should be opened to the media to dispel the "myths and inaccuracies" surrounding the system. Sir Mark Potter, President of the Family Division, told The Times that he favoured allowing the media into children's care cases, where there was "the strongest case" for greater transparency. He supports allowing similar access to private family disputes over money and children, subject to the discretion of the judge. In all cases the anonymity of the children involved, and where appropriate the parties, must be protected, he said.

Judges should be able to exclude the media in certain disputes between couples where there may be "prurient" interest because of their "sensational" nature but where the facts were of no concern of the public, he said. In a rare interview, Sir Mark also called for pre-nuptial agreements to become all but binding; deplored the Government's policy of charging big fees to litigants in civil and family cases; and backed greater legal rights for unmarried couples.

Sir Mark, 71, said that "often tendentious and misleading descriptions in the media have distorted the public perception of the legal process and inhibited its understanding of how that process works". But the balance, he said, "now seems to me to have come down in favour of increased openness by permitting the attendance of the media, subject to provisions to protect the anonymity of children, or indeed the parties in appropriate cases". He admitted that there were concerns among some judges who dealt with these cases daily. The likelihood was that the identity of people involved would emerge, even if local press reports preserved their anonymity, because within communities it would "become fairly widely known who was involved".

There was a case, Sir Mark said, for saying that couples should not have to "wash their dirty linen in public" when they came to court to settle matrimonial disputes. "They might have a number of embarrassing issues to air that are of no interest whatever to the public ... save for sensationalism and prurience." That was why, in such cases, judges should have discretion to hold hearings in private, he said.

But he added: "In an age of transparency and amidst largely misplaced criticisms of `secret justice', it is clear that the public ... should have confidence in the judiciary." Laying to rest some of the "myths" about family justice, he said that it was "simply untrue" that parties were unaware of the case against them (for instance, when children were being removed into care) or that they were denied seeing the evidence before the courts. They had a right to see all the evidence, he said. They also had the right to appeal and were entitled to legal representation and legal aid.

Citing another area of reform, he said that he did not favour legislation to make pre-nuptial contracts binding - at present they are only "persuasive" in disputes over assets between divorcing couples. He favoured strengthening the authority of such contracts between couples, however, "as a sensible means of dealing with the fortunes of the rich". Sir Mark said: "I consider that great weight should be accorded to any such contract where the parties were legally advised at the time. It should usually be decisive."

He said that he would retain a "long-stop" judicial discretion for the prevention of injustice, so that judges would not have to follow such contracts where, for instance, one side had not disclosed all their assets at the time; or circumstances had radically changed during a marriage in an unforeseen way.

Sir Mark also made clear his strong opposition to government policy to recoup the costs of running the civil and family courts through charging high fees to litigants. The "dramatically large increase" for cases over whether a child should be removed from its home had already led to a drop in the number of care cases brought by local authorities, which gave rise to "considerable concern", he said. Councils were under a statutory duty to take proceedings to protect children. "It is not a question of a voluntary taking advantage of the system in the way that can be said of ordinary citizens going to law," he said.

Although 40 million pounds had been provided to compensate councils over court fees, this funding was not "ring-fenced". He anticipated that there would be a similar damaging impact in the realm of private matrimonial disputes where it would "bear heavily upon those who, though above the exemption level [for paying fees] are of modest means and will not be able to stand the expense".

The result, he said, would be that they would not be able to come to court to sort out problems over contact or access to children, for instance, or, "what concerns as a judge, they will proceed as litigants in person [without a lawyer]". That caused "enormous problems" both in procedure and the process of a case resulting in delays, because of the judges' need to give them full opportunity to express their points which counsel would express more succinctly, he said.

In another area of potential reform to family justice - the law on unmarried couples - Sir Mark made clear that they should have greater legal rights as proposed recently by the Law Commission, the law reform body. The Government has shelved the proposals for the time being, which was a "surprise and disappointment", but the Law Commission had made a "totally convincing case", Sir Mark said.

Original report here

(And don't forget your ration of Wicked Thoughts for today)

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