The family courts and why Paul McCartney should reveal all
25 February 2008
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Family courts in the UK are shrouded in secrecy, with many decisions taken behind closed doors. The rationale behind such decisions is rarely made public.
But given that transparency breeds accountability, organisations resistant to transparency effectively place themselves in the firing line.
In light of this, tentative proposals are being considered to make family courts more open. But would this really be a positive move?There have been two judicial reviews of the family court system in the past two years. The first concluded in May 2006, with the then constitutional affairs minister Harriet Harman declaring: "In this day and age, it is hard for people to value what they cannot see. It is hard for people to have confidence in something that is closed. It is impossible to defend a system from accusations of bias and discrimination if it operates behind closed doors."
Judicial goings on are filtered to the public via the press and the initial media response to this was positive. The Labour Government's transparency drive would, we thought, create greater freedom for the press in family courts.
We would be given greater insight into decisions concerning children who have been removed from parental custody. Fathers' rights groups would be able to reveal more about their circumstances. More salaciously, we would get access to every detail of Paul McCartney's interminable divorce battle with Heather Mills.
It was always going to be too good to be true.
It is nearly two years since Harman's speech and only last month did her successor, justice minister Bridget Prentice, offer a limited insight into how the new and improved family courts would operate.
There will be a pilot scheme in three cities aimed at giving courts the power to publish their rulings. If successful, the scheme will be rolled out across England and Wales.
Such cases would include decisions concerning children who have been taken into care and other cases that change the course of the law, such as expert opinion, medical decisions or human rights issues. The subjects of such decisions, however, will be kept anonymous. It is understandable and only right that the courts should protect the privacy of a child, particularly if that child has been the victim of abuse.
"In all these cases, the welfare of the child is the most important thing," comments Mishcon de Reya partner David Lister. "If the kids are identified it would end up in a feeding frenzy."
But it is also right that the organisations involved in the decision to take a child away from its parents should be open to greater scrutiny. As the law stands, we have access to the names of local authorities that acted on emotive cases.
If there is to be standardised anonymity around the subjects of the decision, will that anonymity be extended to cover the social services, police, local hospitals or local authorities that have acted on the case?Family law organisation Resolution has its own reservations about the greater detail concerning anonymous judgments. Jane McCulloch, vice-chair of the organisation, which represents 5,000 family lawyers, reels off a list of questions: "Who is going to prepare these judgments? How will it be made anonymous? How will it be paid for? How would you get it out there without identifying the child? Who would enforce the necessary restrictions on the press?"That said, McCulloch insists that the Government has listened to concerns over the need to protect the privacy of the child. Her main concerns are to do with the practicality of the arrangements.
Opinion is split over whether divorce cases should be made public. James Stewart, a partner with Manches, is clear on his position: "All family proceedings in the US are held in the public eye. Clearly a fine balance has to be struck between access to justice and justice being seen to be done, and protecting the rights of the child. But while that is in keeping with cases concerning children, it is limited justification for keeping financial proceedings secret."
The McCartney-Mills divorce has illustrated the high levels of speculation involved when information is scarce. The presiding judge Mr Justice Bennett has slapped a gagging order on the case, prohibiting either side from talking to the press. But if McCartney's wealth were in the public eye along with Mills' claims, there would be little room for speculation about any potential deal. It may also drive a large spike into the anti-Mills stories, which have become commonplace in the national press lately.
For Stewart, the argument is simple: if cohabiting couples have to air their financial laundry in public, why does the same rule not also apply to married couples?"Justice needs to be seen to be done - it puts to rest any challenges that may later arise," he says, adding: "It's strange that certain courts are open and others are closed."
It's a valid point. However, as Lister vehemently argues, by making finances public "you would end up with the opposing side wanting all the money. Settlements would spin out of control and there would be a threat of emotional blackmail."
And, of course, once information becomes public property those involved in a case face a trial by media. As Lister says, why should the press determine such issues?"The judiciary is the party that needs to know the outcomes of these cases - why does the press even need to know?" he asks.
In its drive to make family courts more transparent, the Ministry of Justice proposes to give judges in magistrate courts the power to remove the press at their discretion.
This has rightly enraged the Newspaper Society, which accuses the Government of taking "a grossly backward step that will do nothing to restore public confidence in the family courts".
Partial information is dangerous ground for journalists as it can lead to assumptions being made and opinions being passed off as fact. Either the family court has to be fully transparent and therefore accountable in the public eye, or there should be greater controls in place to prevent abuse of the system and these should be publicly accountable.
A balance has to be struck and that balance has to be for the greater good. By effectively closing the doors on journalists, and by extension the public, the family court will continue to be accused of being a secretive and less than trustworthy body.