Plans to allow increased public and media access to the family courts have raised a key question: How much is too much? Grania Langdon-Down reports



For Anthony Douglas, being able to access court files about his adoption when he turned 18 would have saved him having to turn private detective to discover his own history.


The man who is now chief executive of the Children and Family Court Advisory and Support Service (CAFCASS) welcomes the proposal in a Department for Constitutional Affairs’ (DCA) consultation paper this month that children, when they turn 18, should have the right to access information about the decisions that determined their future.



The paper, Confidence and confidentiality – improving transparency and privacy in family courts, suggests they should be given a transcript of judgments, copies of orders, or recordings of hearings held on the court file.



Mr Douglas, who was adopted as a baby but only found out when he was eight, says: ‘I would have welcomed a “later life” record, rather than inheriting a legacy of lies from some family members and having to become a private detective myself. For the state to intervene in family life without leaving a trace is, I think, deeply unaccountable.’



About 400,000 cases are heard per year in the family courts, with most taking place in private to protect those involved. However, public confidence in the system has been damaged by the high-profile campaigns of fathers’ groups and the concerns raised over cases involving Professor Sir Roy Meadow and other expert witnesses.



The DCA has come up with a series of proposals aimed at greater transparency that would resolve the present anomalous situation of the media and public being allowed to attend family proceedings before magistrates, the Court of Appeal and the House of Lords, but remaining excluded from the vast majority of cases heard in the county courts and High Court.



Instead, there would be a single set of rules that would give the media greater access to hearings as of right, subject to stringent reporting restrictions enforced by criminal sanctions. Judges would be given the discretion to relax reporting restrictions in appropriate cases. Members of the public with a particular interest in a case could apply to the court for admittance, while the DCA wants views on whether there should be greater access for MPs, local councillors and court inspectors. The paper points out that Parliament often makes family laws ‘in the dark’, without having a clear idea of how the system works.



The paper also proposes that adoption proceedings should be a special case, so that there is transparency in the process up until the placement order is made but, beyond that, proceedings remain private.



The key issue, says Harriet Harman QC, the minister overseeing the reforms, is getting the right balance between openness and privacy. She says: ‘We will not allow there to be a situation where confidence in the family courts rises as it allows its work to be seen, only to have that confidence collapse through children or parents suffering the anguish of being identified – either directly or indirectly.’



Given the devastating nature of some cases, practitioners have raised concerns that allowing young adults to access their files could be traumatic, and that support must be available. Mr Douglas says: ‘Often, the truth is not as bad as the awful things you have imagined. However, flags could be put on documents with a mandatory counselling element. It is not beyond the wit of us to develop a tiered service so that concern is met.’



Overall, Mr Douglas feels the consultation paper is well drafted, and everyone can enter into the debate. ‘The nub of it is the accountability of the courts and agencies like mine to the children and families we work with. Any perception that we aren’t sufficiently accountable, however wrong, is something we must respond to.’



There are, he says, mixed views among family court advisers about opening up the courts. Some think the public should have a greater awareness of what happens in the family courts and the sort of situations children face, while others maintain that secrecy is sometimes ‘justifiable privacy’ and that children shun and hate publicity. ‘Both points are valid,’ Mr Douglas acknowledges.



There are similar mixed feelings among the judiciary. While senior judges are in favour of greater transparency, Sir Mark Potter, President of the Family Division, admitted to the constitutional affairs select committee’s inquiry into the family courts that their views are not likely to be reflected ‘at the coal face’.



District Judge Nicholas Crichton of the Inner London Family Proceedings Court receives many requests to sit in on hearings from journalists, university researchers, bar students and magistrates wanting to go on the family panel. He says it is possible to control access. ‘We say yes, always subject to the agreement of the parties and with the assurance that nothing will be published that could lead to them being identified. We have never had nosy neighbours trying to sit in, though occasionally we have had a mother asking for a current boyfriend to be allowed to sit in but again, we only allow that if all parties agree.’



After Judge Crichton gave evidence at the select committee, he received a lot of requests from journalists to come and watch his court at work. ‘After three weeks, interest waned because they couldn’t print what they wanted to print.’



Jo Edwards, a family law partner at London firm Manches, also questions whether the media will cover many cases. ‘The proposals place an enormous responsibility on the media to paint a responsible picture of what is happening in the family courts. But I query whether there will be a huge take-up – unless it is the McCartneys.’



This would follow the pattern in New Zealand, which changed its law last year to allow accredited media representatives to attend hearings, as well as members of the public with a legitimate interest, while any person can publish reports of children proceedings, provided all identifying details are removed.



Judge Peter Boshier, principal of the family courts of New Zealand, says in the consultation paper that, as predicted, very few journalists have attended court since they were opened, with no reported incidences of any ‘misbehaviour’. He adds: ‘Interestingly enough, the bother we continue to have with the media is in cases where they don’t go to court at all, but rather just rely on the report of a litigant that they’ve been badly treated.’



For Ms Edwards, one consequence of greater openness will be alerting the public to the ‘inordinate’ delays in the system, which could backfire on the government. ‘A lot of pressure groups say the courts are prejudiced against fathers, while the government is saying that if we increase transparency, we will be able to show we have nothing to hide.



‘However, the critical factor is delay – in nine out of ten cases, it determines the outcome. When I am acting for a father, it is not uncommon for it to take a year from issuing an application for contact to having it adjudicated, and by that time the status quo has been established and the mother may have turned the children against him.



‘But if the public is alerted to the inordinate delays, which cause so much damage to families, it may put pressure on government to provide more resources.’



Andrew Greensmith, chairman of the family lawyers’ group Resolution, agrees the public needs to know how the system works. ‘The public mood has swung towards openness and accountability, which, I suspect, is in the main a reaction to the campaigns by the fathers’ groups. However, there needs to be a thorough investigation of how you can police the anonymity of those involved in a case – it is futile to rely on sanctions because, once it is breached, the damage is done.’



He warns of the danger of ‘jigsaw’ identification, where anonymised reports can contain different bits of information that can reveal a person’s identity.



There are other possible consequences, both good and bad, he says. ‘If people understand more about the process, it may persuade them to reach an earlier settlement. But there is also the concern that knowing the media may attend a hearing could put someone off making an application, perhaps in a domestic violence case.’



Ms Edwards agrees. ‘If the media is in court, it will fetter the way parties give their evidence, both in written disclosure and orally. While there may be criminal sanctions if reporting restrictions are breached, people trying to resolve financial issues may decide to go for a lesser deal rather than risk the indignity of going to court and having it reported by the press.’



Christina Blacklaws, chairwoman of the Law Society’s family law committee, has serious reservations about what is proposed. She says: ‘It’s vital that the public understand and have faith in the family justice system, and therefore an element of greater transparency is to be welcomed. This can be achieved by allowing the judiciary to anonymise and make public their judgments. But the current proposals go too far. It cannot be in the interests of justice for any member of the authorised press to attend any court hearing. In these days of anonymous blogging, it would be impossible to protect people’s privacy and may expose children and vulnerable adults to the glare of public scrutiny.’



In her view, the suggestion that an interested person should be able to apply to hear a case is even worse. This could lead to precious court time spent in pre-hearing arguments, and increase the distress of the parties who are already under huge pressure, she maintains.



Ms Blacklaws adds: ‘Anyone who considers these proposals to be right should just ask themselves whether they would want the press, their relatives and neighbours in court to hear their own family case. I am confident that answer would be a resounding no.’



David Davidson, a family law partner at City firm Charles Russell, has another concern. He thinks that opening up financial hearings could give ‘ample opportunity’ to fraudsters and others to obtain details of bank accounts and other sensitive commercial information.



‘Curiously, a by-product of these proposed changes may be that even in reported High Court judgments relating to financial matters, greater effort will be made to preserve the anonymity of the parties,’ he says. ‘Contrast the situation in Scotland, where financial cases are reported under the names of the parties but an important difference there is that, due to the different definition of matrimonial property, there is not the same exposure of all the parties’ financial circumstances.’



For Ms Edwards, one welcome change will be greater scrutiny of expert evidence. ‘If we need to use an expert, such as a psychiatrist or forensic accountant, it would be helpful if we could look at reported cases and see how they fared. It is important in terms of quality control, although I can understand a reluctance on the part of experts to put themselves forward after the way some have been treated. In one sense, they should be held to account – why should they be protected? But on the other, it would be very difficult if professionals decided they weren’t prepared to give expert evidence in some instances.’



The issue of expert evidence was at the heart of the row that blew up around solicitor Sarah Harman last year. Her practicing certificate was suspended for three months after disclosing anonymised documents in a child abuse case to her sister Harriet Harman, then Solicitor-General, so it could be included in a review of family cases following the Angela Cannings case.



Interviewed on BBC Radio 4’s ‘On the Ropes’ on the morning the consultation paper was published, Ms Harman said she had been devastated by the harsh judgment of Mr Justice Munby, who sharply criticised her for disclosing the documents. ‘I only survived because of the enormous support of family and colleagues and a very strong view that what I had done was right – it might not have been according to the law, but it was right.’



She said the status quo was ‘not acceptable’, adding that ‘we may justify private courts to protect children, but remember, that also protects other bodies, such as social services departments, and that is very worrying’.



The rules on parents talking to third parties about their case were relaxed last year. Ms Edwards says: ‘It has got to be right in very limited circumstances that someone who is facing a Draconian order should be able to discuss it with a third party, such as an MP.’



Another step on the way to more openness was the recent landmark Court of Appeal judgment in Clayton v Clayton (2006) EWCA Civ 878, which marked an end to the automatic ban on identifying children, even after court proceedings have ended. In allowing the father, Simon Clayton, to talk about the contact arrangement he had reached with his ex-wife, but refusing him permission to make a film about his earlier abduction of the child during their contact battle, the court said judges must balance a child’s right to privacy against a parent’s right to freedom of expression.



For Judge Crichton, the issue is clear: ‘I don’t have a problem with opening the window a little and letting in some light, but the challenge is to achieve that and still respect individual privacy. We are here to protect the children, and if the result of more openness is that something said in court gets out and the child is bullied in the playground, that is too horrendous to contemplate.



‘The pendulum is swinging towards more openness. What we have to do is stop it at the bottom and not let it swing so far the other way that damage is done.’



Grania Langdon-Down is a freelance journalist