13:02, September 16 65 0 theguardian.com

2018-09-16 13:02:28
The Guardian view on the family courts: greater openness is needed

The crisis in the family justice system, brought about by record numbers of applications to take children into care, means that longstanding arguments about openness versus privacy in the family courts have taken on a new urgency. This summer the incoming president of the high court’s family division, Sir Andrew McFarlane, echoed his predecessor Sir James Munby when he said that the current position – with 73,000 children in care, up from 60,000 a decade ago – is “untenable”. A review published in July called on ministers to meet a £2bn shortfall in council budgets for children’s services, and review the impact on vulnerable families of poverty and benefit cuts. Separately, the government is reviewing the impact of legal aid cuts which have led to a growing number of litigants without representation, including in domestic violence cases.

It is 10 years since journalists won the right to attend family court hearings. Judges have been under instructions to publish significant judgments, anonymised so that families are not identified, since 2014. But this drive for greater transparency has had limited success, with few judgments published and not much reporting either. Campaigners think guidance on anonymisation would help judges. For journalists, they are pushing for the law on reporting restrictions to be clarified, to reduce the risk of being found in contempt of court (penalties for which include jail). In the meantime, legally qualified bloggers have been granted the same right as journalists to attend courts as part of a pilot scheme beginning next month.

The rationale for opposing such moves is the right to privacy. There are concerns, often justifiable, around the identification of vulnerable people and particularly children, which social media has served to heighten. Distrust of some news outlets is also a factor. The ruling by the press watchdog in the Tower Hamlets Muslim fostering case serves as a cautionary tale about one-sided reporting on care cases. There are also questions regarding the impact of publicity on professional practice. In the past, the publication of findings in relation to high-profile failures, for example in serious case reviews following a child’s death, has been said to fuel a blame culture, rather than helping to raise standards.

Such arguments are not without weight. It would be naive to suggest that openness on its own is a solution. Reporting on family law is tricky. Social workers and health professionals are not allowed to discuss cases with journalists, meaning evidence from litigants can be hard to challenge. There are difficulties for anyone seeking to report a child’s point of view. But the case for trying to overcome these obstacles is strong. Decisions in the family courts are made on the balance of probabilities; that is, what a judge thinks probably happened. This is a lower standard of proof than in criminal law and when the consequences of decisions are so enormous, and resources so stretched, the public needs to know what is going on.

Some lawyers have long recognised their role as communicators. Others remain to be convinced. Similarly, public authorities often shy away from the spotlight on their role in this sensitive area. Professionals on all sides, including the press, should now reflect on their approach. Openness should enable, and not hinder, good practice. If people are to have views on legal aid, or adoption, or the impact of cuts, they need to know how the system works. Before the crisis in the family courts can be tackled, means must be devised for it to be seen.

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