Family Court transparency: has New Labour reneged on its promise?
In December last year Lord Chancellor Jack Straw QC declared that the Government would propose to change the law to allow access to the Family Court so that justice could be seen to be done.
So in true New Labour style the Ministry of Justice announced that the Family Court would be thrown open to journalists.
According to a statement made by Straw at the time: “It’s vital these courts command the confidence of the public if the public is to accept the court’s decisions.”
Before the end of the month Straw will see his vision realised. While the move is designed to restore the public’s faith in family law, legal opinion is divided over whether the Government’s aims will have the intended effect or if, in fact, they will serve to erode privacy further.
“This is such a massive issue and we’re not sure how it will pan out,” says Withers of counsel Lisa Fabian Lustigman.
Lustigman adds that she has concerns about the presence of the press in high-profile divorce courts, but says it will be a bigger issue for divorce cases that are not already in the public domain than it will be for those who have celebrity status.
“I would want to know why it’s so important for them [the press] to be there,” says Lustigman. “Particularly if it isn’t somebody in the public eye and it could be used as a prurient issue. Is there going to be an issue with one side ‘tipping off’ the press?”
Manches partner James Stewart argues that there are already issues with some high-profile spouses employing public relations agencies as spin doctors.
“We see a dangerous precedent emerging in trial by PR where clients and PRs are effectively able to influence media opinion,” he says.
The most notorious divorce of 2008, Mills v McCartney, was played out in the public arena and ended up with Heather Mills winning apologies from four UK newspapers for invasion of privacy.
Formula 1 tycoon Bernie Ecclestone learnt that his then wife Slavica was divorcing him through the newspapers after her PR agency Borkowski released a statement of her intentions.
Both cases demonstrate a clear conflict between privacy and transparency, but also show how the media can be manipulated to the advantage of one spouse.
There is a careful balance to be struck between transparency and privacy. Already there is much debate about media intrusion in the lives of celebrities, and this could spill over into the Family Court.
Lustigman comments: “I have concerns about the press and would immediately flag that up to the client so they’d have the opportunity to instruct the barrister to have them removed from the court.”
She acknowledges, however, that the press could counter that application and draw out legal arguments over the legitimacy of their presence. All while the divorce is ongoing.
“I don’t think the press will be in any better position than they are now,” she continues. “But we’ll hear a lot more complaints from the client.”
Mills & Reeve partner David Salter, who sat on the committee that formulated the rules governing media presence in the court, agrees: “There are still reporting restrictions,” he says. “Until they’ve been reformed you don’t really move on.” Stewart goes as far as saying the policy is a “damp squib”.
Salter explains: “The Government says it will repeal the reporting restrictions as soon as parliamentary timing allows. So far these changes do make a difference, but it’s not as radical as it would appear.
“It’s been hailed as a monumental step, but it’s not going to make a wholesale change until reporting restrictions are lifted.”
So why the publicity fanfare in announcing the policy? “Public confidence in the Family Court has collapsed,” states Stewart.
The coverage surrounding recent child neglect cases such as the Baby P abuse case and the Shannon Matthews kidnap plot, of which her mother and uncle were found guilty, has worked to intensify calls for further transparency in the court system.
“Cases that involve children tug at the heart strings, but the court is the last in a long line of authorities, and I’m not sure where the court should play a part - unless it’s a public law issue,” says Lustigman.
Mr Justice McFarlane, chairman of family lawyers group Resolution, is in favour of transparency, but sets the tone of the family legal profession when he states: “The current changes will do little, I fear, to address the very real difficulty that journalists face when confronted, after the end of the court case , with a parent who’s complaining about a miscarriage of justice.”
In other words, those cases that have helped erode public confidence in the Family Court will not be open to journalists, so ultimately the target of improving transparency will be fundamentally handicapped.
Family lawyers anticipate encountering hacks in the court, but it is hoped that interest will wane other than in high-profile cases.
In the meantime, clients will have to put up with the age of transparency and those who are more sceptical of the media will be safe in the knowledge that the Government’s definition of transparency differs somewhat from that of the profession.
The Judicial Reviews
July 2006
‘Confidence and Confidentiality: Improving Transparency and Privacy in Family Courts’ stated: “We want to make the family courts more open, but we want as well to ensure people’s anonymity.”
June 2007
‘Confidence and Confidentiality: Openness in Family Courts: A New Approach’. The then attorney general Lord Falconer said: “We’ve decided not to proceed with proposals to allow the media into family courts.”
December 2008
In ‘Family Justice in View’, Lord Chancellor Jack Straw MP and Minister for Family Justice Bridget Prentice MP stated: “Enabling people to understand the decisions made about them and their families may help them trust that those decisions were the right ones. We hope that access to more information, and confidence that the right decision was made for the right reasons, may help the public have confidence this is the case.”
Readers' comments (5)
jane webb | 14-Apr-2009 11:18 am
i think it has more to do with the injustices families recieve during care proceedings cases such as the websters for instance i dont think the press will really be that interested in divorce cases
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Portia Barrett | 15-Apr-2009 4:06 pm
I feel it is more to do with the collusion of social workers, Guardians and expert witnesses in family court cases, which is the real concern.
So many innocent parents have been set up and are angry over the injustice of it all, leading them to suffer legal abuse syndrome, like Sally Clarke.
The judges are called rubberstamps and the lawyers and barristers labelled spineless, because they live in fear of Local Authorities and refuse to defend their clients fully.
I have witnessed all the tricks imaginable used by social workers and Guardians and expert witnesses, and in the final analysis, I saw it was all about the money and children are the commodity to be bought and sold like slaves- as is legal once you register with a birth cert.
It is nothing to do with law or Justice- just money.
We as a society have sold our souls and the souls of the nation's children to line our pockets.
We have lost all respect for moral and right behaviour, as we feel we are answerable to no one.
Rest assured- we are all answerable to ourselves in the final hour before death.
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Alison Stevens | 15-Apr-2009 6:58 pm
Lets hope that Social Workers,and other professionals, will abide by the Public and Private Law Guidelines, now they are being put under the spotlight,which should prevent shoddy practice.
But the injustices will continue, if High Court Judges will not overturn Adoption orders, if there has been a clear miscarriage of justice.
And now we have a change with reference to barristers,and the Legal Aid system, of which Parents may have to represent themselves, within the Family Court, which once again, will prevent a fair trial,as they don't have the knowledge of a very complex side of the Law.
Good McKenzie Friends are very few in numbers.
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paula | 15-Apr-2009 8:42 pm
Both comments echo my own, I wonder how long jack straw can keep the public from the courts ? Its in the publics interest to see justice being done..it is also in the publics interest to be aware of the huge number of decent parents that have suffered grave miscarriages of justice.....have you any idea how many parents feel deceived and robbed by the family courts ? No... you couldnt possibly, they are all gagged,emotionally and mentally these parents go through a living hell without their children.
You are so right too, the publics faith in the family courts is non existent, fabricated reports stand uncorrected, blatant perjury ignored,Cafcass simply a replica of the Sw present, multiple conflicts of interest, cosy relationships, expert witnesses stepping out of their specialism,(but can never get it wrong),collusion between all parties and your own lawyer is the norm,children s true feelings ignored,profound impact on parents health ignored,we know that the childs best interests is a cover for the fact you dont care, it is a conveyor belt system that squeezes as much money out of the parents and child as it possibly can. Within those corrupt walls a parent loses all credibility before they enter the courtroom. So please excuse us if we: avoid A&E depts, (websters) dont complain to often to GP re:childs ailments, (MSBP/FII) admit to being depressed,(child removed) ask for assistance as disabled, (child removed) admit to smacking child (child removed)admit to abusive childhood (child removed) if pregnant just flee the country, as the UK is no place for children.
Thanks to the totalitarian big nosed corporate parent that thought and still thinks it can do a better job than natural though seemingly imperfect parents....though it fails the childs needs so miserably.
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Roy Everett | 30-Apr-2009 12:18 pm
Regardless of the collapse of the public's faith in the Family Court as a viable means of resolving disputes, do members of the legal profession itself have any faith in the FC apart from as a source of income at the early stage of a dispute?
The firm of solicitors my family originally consulted back in 2001, regarding a developing dispute between the local authority and my family, suggested very strongly that we avoid dealing with the matter through the Family Court or the then-embryonic CAFCASS, precisely because of poor legislation coupled with corruption, expense, inefficiency, malpractice and especially the bias of the FC towards the LA. We therefore managed the dispute, with some success, via the NHS, carers' charities, and private healthcare. However, the LA suddenly insisted on pushing the matter into the Family Court, which led to solicitors, barristers, judges and “expert witnesses” being introduced, a move which completely wiped out the mutually tolerable evolved solution up to that point and transferred all the remaining family assets into professional fees. The result was the replacement of the solution with perpetual expensive litigation in the courts over trivia, loss and falsification of social worker records, perjury, dissolution of a marriage, some very bizarre second opinions, destruction of a functioning financially self-sufficient family, insolvency, and the entire family becoming dispersed and dependent on state benefits. The original dispute became re-activated, but now neither parent, now acting individually, can find any way of funding legal representation, as the public funding for solicitors (largely to sit behind barristers in court) is now so low that the local partnerships have withdrawn their solicitors from all family court work. Meanwhile the LA seems prepared to pay, from a seemingly bottomless fund, for its own legal team in order to meet, according to its own argument in court, government targets on social reform. From what I have read in the last few weeks, I realise that my experience above is far from unique, and indeed is being repeated every day. I welcome extension of press monitoring into the Family Court.
That original consultation eight years ago has proved devastatingly accurate. Yet only now is the government taking action, or pretending to do so, and only then under threat of publicity. What happened to standard continual quality improvement standards in all areas of business and public life? And how did the Family Court become an instrument for the imposition of government policy rather than a forum for managing or even resolving disputes?
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