13:34, February 15 72 0 theguardian.com

2019-02-15 13:34:04
The Guardian view on family law: transparency is in the public interest

Cuts to the legal aid budget since 2010, coupled with the impact of other spending cuts on low-income and vulnerable people, mean that increasing numbers of people are arriving in court in difficult personal circumstances, having received no legal advice and with no lawyer to represent them. The number of people accessing legal aid fell by 82% between 2010 and 2018. While lawyers, charities and others have repeatedly complained about the impact of legal aid cuts in both civil and criminal courts, and criminal barristers last year threatened to strike, the government has so far declined to reverse the funding decisions taken in the aftermath of the 2008 financial crisis.

Last week ministers completed a long-awaited review of the Legal aid, Sentencing and Punishment of Offenders Act (Laspo), and announced it will spend an additional £6.5m on restoring help in a few areas from where it was removed. Given the extent of the cuts – £950m has been sliced from the total budget since 2010, with the amount falling from £2.5bn to £1.6bn in real terms – critics were unimpressed. While the extra money can be expected to ease the situation for a small minority of litigants, for the majority nothing will change.

There is a clear public interest in understanding how the courts have been affected by cuts, especially in handling disputes over housing, immigration or benefits. One of the most serious areas of concern is family law. Parents are entitled to legal aid in care cases, but not in disputes between ex-partners over access (unless they have proof of domestic violence), meaning that some simply give up. In 2017, more than a third of family court hearings saw both parties appearing without representation.

Last month the Liberal Democrat former justice minister Tom McNally told the Guardian that he believes it was right for the coalition to seek to reduce the amount of taxpayer-funded litigation and promote mediation instead. But as the level of cuts has increased far beyond the original target of £350m, the evidence of unintended and harmful effects has increased.

This makes it all the more essential that it is possible to scrutinise what is happening in family courts. Difficult questions about the reporting of family law must be addressed. There are very tough restrictions on what can be reported in cases involving children. That is understandable. No one wants a free-for-all. But it is becoming clearer that more transparency is needed. Ten years ago, journalists won the right to report on family court proceedings under certain conditions. But the promised new era of openness never materialised. There are a variety of reasons for this, some of them good ones. Reporting on family law is difficult, and resources are limited. When deciding what information can be published, judges must balance the right to privacy with the right of free expression.

Sometimes those deciding a child’s future make mistakes. Judges may also err in deciding what may be said about a case. On Friday the journalist and Guardian contributor Louise Tickle succeeded in her application at the court of appeal to have a reporting restriction order ruled unlawful. The ruling was in the case of a girl who was taken into care by Southampton city council between the ages of two and five, before her mother successfully challenged an adoption order and the child was returned to her. The appeal was granted on grounds that the balancing exercise, between privacy and free expression, had not been carried out.

The lack of scrutiny resulting from such judgments is particularly concerning at a time when the number of children in care continues to rise. The most recent official figures show 75,420 looked-after children in England, up from 60,000 in 2008. One study last year showed the number of newborn babies removed from their mothers had doubled over the same period. This matters not only to the individuals involved, but to society more broadly. When the system gets it wrong, we need to know it has done so and understand why. When it gets it right, showing how it reached a decision in a complicated case builds vital public trust.

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