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Family Justice

Volume 485: debated on Tuesday 16 December 2008

With permission, Mr. Speaker, I shall make a statement about the opening up of the family courts. I have today laid before Parliament the document “Family Justice in View”, copies of which will be available in the Vote Office and on my Department’s website.

Family courts play a crucial role in our society. They make far-reaching decisions—for example about how to divide finance on divorce, or what protection to give victims of domestic violence—and they make life-changing decisions about the future of children: whether they should be given contact with their parents, whether they should be removed into the care of the state, and whether they should be placed for adoption. The decisions of family courts have profound and long-term effects on the lives of those involved and cumulatively on society as a whole.

Family cases can be conducted in the magistrates family proceedings courts, in county courts, and in the family division of the High Court. All those with responsibility for these proceedings are well trained and work to extremely high standards. It is vital that these courts, like any others, command the confidence of the public, if the public—including the parties involved—are to accept their decisions. That can best be achieved if justice in these courts is seen to be done.

For entirely legitimate reasons, the privacy of parties to family proceedings must be properly protected. That is of enormous importance to adults, and is an overwhelming imperative in cases involving children. At present, with some exceptions, neither the public nor the media are permitted to witness proceedings in these courts. However, many argue that the current provisions to safeguard privacy and confidentiality go too far, leaving family courts unfairly open to accusations of bias or even injustice.

In contrast, there is a greater degree of openness in the youth courts. For example, the media are allowed to witness and report proceedings in the youth courts, so long as they do not identify juvenile defendants, and youth courts have a wide discretion to allow others to attend. These rules have worked effectively, and both their spirit and their letter have been well respected by the media.

The debate about opening up the family courts has intensified in recent years, and two successive consultations have been carried out, in 2006 and again in 2007. The results of those exercises were inconclusive, with strong representations on the one hand in favour of improving transparency, and on the other in favour of maintaining the current position.

In the past few months, the Under-Secretary of State for Justice, my hon. Friend the hon. Member for Lewisham, East (Bridget Prentice), who has responsibility for access to justice, and I have been actively considering how we can shed more light on family courts while preserving the imperative of the welfare of the child. The Government have now reached their conclusion, and I am therefore announcing today that the rules of court will be changed to allow the media to attend family proceedings in all tiers of court.

Understandably, the media will be subject to reporting restrictions similar to those that apply in the youth courts. The courts will be able to relax or increase those restrictions in appropriate cases, and will have the power to exclude the media from specific proceedings altogether where the welfare of the child or the safety of the parties or witnesses requires it. The overall effect of these changes will be fundamentally to increase the openness of family courts, while protecting the privacy of children and vulnerable adults.

As well as allowing the media to attend family proceedings, there is a need to increase the amount and quality of information coming from the courts. At present, anonymised judgments of the Court of Appeal, and in some instances of the High Court, are made public, but that is not the situation for the county courts or the family proceedings courts, which deal with the bulk of family law cases.

We have therefore decided to pilot the provision of written judgments when a final order is made in certain family cases. The courts in the pilot areas—Leeds, Wolverhampton and Cardiff—will, for the first time, routinely produce a written record of the decision for the parties involved. In selected cases, where the court is making life-changing decisions for a child, it will publish an anonymised judgment online, so that it can be read by the wider public.

The consequences of family proceedings are so significant that the parties involved will sometimes need to seek advice or support from a range of people, including legal advisers, family members, medical practitioners and Members of Parliament or other elected representatives. To do so, they must be able to discuss and share information about their case. In 2005, we made changes to the rules of court to allow people to disclose certain information to specified individuals, but after two years it became clear that those rules remained unnecessarily restrictive and too complicated. Following a consultation last year, the Government have now decided to relax the rules on the disclosure of information in family proceedings.

Parties and legal representatives will be able to disclose more information for the purpose of advice and support, mediation, the investigation of a complaint, or—in an anonymised form—for training and research. In more cases, the person receiving the information will be able to disclose it to others, for the purposes for which it was originally disclosed to them, without seeking the permission of the court. To protect the anonymity of children after proceedings have concluded, the decision of the Court of Appeal in Clayton v. Clayton will be reversed. In principle, that decision removed the protection of the court once proceedings had been completed, although that protection could be reapplied in particular cases.

Most of the key changes that I have announced today can be made in the rules of court, without the need for primary legislation, but some will require legislation, including the reversal of the effect of the decision in Clayton v. Clayton and the potential opening-up of adoption proceedings. As regards the latter, we will consult on the most appropriate approach.

The Government are committed to improving the visibility of justice in this country—to lifting the veil that sometimes keeps justice from view. The measures that I have outlined today will help to build a transparent, accountable family justice system that inspires the confidence of the people whom it serves, while continuing to protect the privacy of the parties and children involved. I commend the statement to the House.

I thank the Justice Secretary for early sight of his statement. The UN convention on the rights of the child states that

“In all actions concerning children…the best interests of the child shall be a primary consideration.”

Some argue that privacy in family courts is essential to that end, but does the Justice Secretary agree with me that the privacy of the child and the interests of the child are not necessarily always the same thing? Secrecy can also mean a lack of accountability, which in turn leads to poor decision making. Does not the terrible case of baby P remind us that where the welfare of children is concerned, poor decisions can have catastrophic effects?

The Constitutional Affairs Committee concluded in 2005:

“A greater degree of transparency is required in the family courts.”

Speaking for the Conservatives in 2006, my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) said that

“we need to open up the closed doors a bit more.”—[Official Report, Westminster Hall, 12 January 2006; Vol. 441, c. 164WH.]

Would the Justice Secretary concede, in the spirit of transparency, that the Government have been rather less sure about whether to open the door? In 2006, the previous Lord Chancellor, Lord Falconer, made firm proposals to allow the press in. By 2007 he had changed his mind, arguing that “the welfare of children” was “at stake.” Now the Government have changed their mind again. Within three years, the Department has changed its identity once, and its proposals twice. The Justice Secretary says that he has now reached a conclusion, but he also says that he is presenting proposals. Are they final?

We all recognise that this is a difficult issue, but is not the problem with secrecy that it ignores the issue of public confidence in the court process? The president of the family division, Sir Mark Potter, has spoken of

“an age of transparency...amidst largely misplaced criticisms of ‘secret justice’”.

Does not the experience of countries such as New Zealand and, closer to home, Scotland, demonstrate that properly regulated transparency is perfectly workable?

May I press the Justice Secretary on adoption proceedings, about which he is consulting further? Does he agree that, while there should be a presumption against openness in the final hearings, in which delicate and sensitive decisions are made, it is important to have scrutiny in the opening stages, in which the work of social workers, the Children and Family Court Advisory and Support Service and the National Youth Advocacy Service needs to be monitored?

Does the Justice Secretary recognise the increased stress on children that may result from the presence of the media in court, and the fact that many professionals such as the National Society for the Prevention of Cruelty to Children have serious concerns about that? Is he confident that the press will be as compliant with reporting restrictions as they are, for example, in New Zealand? Will all journalists be allowed into court, or only those who are accredited? Crucially, what sanctions for breaching reporting restrictions does he envisage? The Government previously proposed new legislation to ensure strong sanctions to protect anonymity. Does that proposal stand, and will third parties with a legitimate interest be permitted to attend, as they are in other countries?

A key concern for families is that they are unable to raise their cases with the media, but it appears that the Government’s proposed rules for disclosure will still prevent them from doing so. Will the Justice Secretary confirm that, and explain why he believes it is right to maintain that restriction? When the Government last proposed transparency in 2006, they recognised, in the regulatory impact assessment, that both they and the courts would face increased costs, including for additional security. Have the Government estimated these costs? At a time when the courts’ budget is being cut, how will those costs be absorbed? Is not the fact that the Government are piloting the provision of written judgments in only three courts evidence of concern that the resource implications could be considerable?

There are important questions about how transparency in family courts will operate, but does the Justice Secretary agree with me that child protection can no longer be a secret business? It is time to shine a bright light of public scrutiny to ensure that the most vulnerable in our society are protected. With proper safeguards, transparency is a force for good.

I thank the hon. Gentleman for his support for the proposals. He teased me about the fact that the Government had one view, then a slightly different view, and now they have a—

No, the original view—this is a binary choice.

The reservations that the hon. Gentleman went on to express, including about the sensitivity of adoption proceedings, and the concerns raised by some children’s representatives about having the media in court, show that this is a finely balanced judgment, but ultimately we have to say yes or no. He asked whether these were firm or final proposals, and answer is yes, they are. I hope to introduce measures that require rule changes, pressing on with this, in the spring, possibly in April. The changes in adoption require primary legislation—the Adoption and Children Act 2002 imposes a statutory bar on the attendance of the media or the public, and there is no current legislation available to make those changes—so we will have time to consult in more detail on that.

The hon. Gentleman asked me some specific questions about disclosure by families to the media. We have to put the detail of the changes to the rules committee, and I am actively considering that issue. The key issue, in my experience as a constituency Member of Parliament, is the assurance that if information is disclosed further, the identity and privacy of the child and, by extension, the family, is still protected. However, I thoroughly agree with his view, which is ours, too, that the quality of family justice is not served by proceedings that, to all intents and purposes, are secret and removed from the view of the media. I take his point that there is a clear distinction between a child’s best interests and the privacy, not of the child—no one is arguing about that—but of proceedings.

We have not estimated the cost of implementing the changes because we believe the costs will be marginal. For example, in respect of youth courts, which have to operate exactly the same restrictions but with the courts in many cases allowing individual members of the public and others in, I have never had any representations that that is a costly process.

Once there is a legislative opportunity, we will seek to rationalise the penalties and the regime. Meanwhile, a breach will be contempt of court, for which, in principle, imprisonment is the penalty. In respect of other proceedings in the youth courts and in Crown courts where juveniles and young people are being tried, and in respect of other reporting restrictions, the experience is that overwhelmingly the press respect restrictions.

I, too, broadly welcome the Secretary of State’s statement as a move in the right direction. There is a basic principle, as I hope he will agree, that justice should be seen to be done. Secret justice is often injustice. Privately heard witnesses who think they are less likely to be found out are more likely to be self-serving than witnesses in public, judges are more likely to go along with the cosy consensus that often develops between experts when there is no prospect of public comment on their judgments, and public authorities are more likely to act on insufficient evidence when their decisions are not subject to public scrutiny.

It is right that that principle should apply even in difficult cases, such as those in family proceedings. It is understandable that there will be some resistance from some professional groups, and clearly there is a balance to be struck between the public interest and the interests of individuals, especially of children, but as the hon. Member for Arundel and South Downs (Nick Herbert) said, I hope the Secretary of State agrees with Sir Mark Potter when he said in October that more openness would help to dispel myths about bias and inaccuracy in the family court, especially if there are enforceable rules about anonymity.

The Secretary of State spoke only about the media. He did not speak about access to the courts for the public. Obviously, different considerations apply, but what conclusions have the Government reached on admitting the public to some family proceedings?

On the publication of judgments, I am a little disappointed that the right hon. Gentleman has not gone further than a pilot. Publication of judgments, suitably anonymised, obviously, is vital to the scrutiny of what judges do. Their judgments must be open to comment and criticism; otherwise the law itself cannot develop. There have been cases where even professional law reporters were excluded from the courts. Surely the Secretary of State agrees that that should not happen.

I welcome what the right hon. Gentleman said about the disclosure of information by parents, but may we be clear about what that means? Will parents be able to discuss their case with their MP, which was one of the examples that he gave? What will be the position on the important issue of expert witnesses and second opinions? Will parents be able freely to approach experts who might help to challenge the views of the local authority expert in their case?

Will the Secretary of State be specific about what part of Clayton v. Clayton he proposes to overrule? There are two parts to that judgment. Is he saying that Parliament should overrule the part about the film that the father was going to make when the child had been abducted? Overruling that would make the situation worse for the child’s privacy, not better.

Finally, it is disappointing that the right hon. Gentleman has not taken the opportunity to make a wider announcement about family courts, especially about the increase in family court fees in public law cases from £150 to £5,000. Will he tell the House what effect on the volume of cases that change has had? What are his criteria for the success or failure of that policy? Is it just raising more money, or does he want there to be fewer cases?

I am grateful to the hon. Gentleman for his support for the proposals. He asked me a number of specific questions. Are we proposing that members of the general public be allowed into the courts? No—and to that extent, this regime is more restrictive than the one that applies in the youth courts. However, I think that that is appropriate, although we are open to representations, if necessary, on the issue. Will parents be able to discuss their cases with MPs? Yes, and in my experience they do already, although often in breach of some extraordinarily complicated and convoluted rules, which I discovered only very recently.

One of the issues is about the identity of expert witnesses being able to be made public. My default setting is that they should; I believe that in cases of this kind, the expertise of such witnesses should no more be allowed to go without scrutiny than the expertise of those in other cases, in which equally life-threatening or life-changing decisions are made and expert witnesses have to justify publicly their expertise and judgments.

We are seeking to overturn the part of Clayton v. Clayton that says that in principle the protection of the privacy of the child should fall away once the proceedings have finally been completed. We intend to reverse that, so that the presumption is the other way.

There was a huge consultation on the increase in family court fees. Local authorities had a transfer of £40 million from the Ministry of Justice budget—and a little more, I may say—to meet the full costs of that transfer of fees. I would have preferred the transfer to have been ring-fenced to the local authorities so that they could use it only for these purposes. The local authorities are themselves root and branch opposed to ring-fencing—but they have had the money. It therefore does not lie in their mouth to complain that they cannot afford the fees: they can.

Moreover, the fee is £4,000 on average; it ranges from £1,750 to £4,825, and the full fee applies only at the upper end. Local authorities have to base their decisions on the interests of the child. The fee, even at £4,000, is a very small proportion of the total costs of taking a case, which average £25,000. It is a still smaller proportion of the costs of taking a child into care, which are £40,000 on average and rise to £101,000 and more if the child is taken into secure accommodation for a year.

Order. I would appreciate some help. I realise that this subject does not necessarily lend itself to brevity, but I hope that hon. Members will try.

I welcome the statement, particularly the reference to the family courts in Leeds. A recent survey of children under 14 revealed, perhaps surprisingly, that their highest wish was an absolute ban on divorce. In view of that, may I ask my right hon. Friend to underline the fact that the purpose of family courts is to disentangle broken relationships, enable people to rebuild their lives positively and ensure the future flourishing of the children—not to expose individuals to damaging media destruction in the future?

Of course, I entirely support my right hon. Friend. Any of us here—and I include myself—who as a child saw the break-up of their parents’ relationship knows that what my right hon. Friend says is absolutely true.

Obviously, the devil lies in the detail and I very much hope that we will be allowed to debate the draft rules. Subject to that, I approve of what the right hon. Gentleman has said to the House. Transparency is good news as far as the quality of justice is concerned: it puts judges on their toes, which is jolly good news, and it puts expert witnesses on their toes, which is also good news. Furthermore, it enables us to know rather more about the welfare reports—and that, too, is good news. I hope that the right hon. Gentleman will be as ambitious as possible about transparency and let as many people as possible into the courts, subject to the protection of proper confidentiality.

I thank the right hon. and learned Gentleman; it is unusually good news that he is giving support to something that I have done. I welcome that in the spirit of Christmas and will consult the Whips about debating the rules.

I declare an interest as a member of the Magistrates Association. The statement referred to all those with responsibility for these proceedings being well trained and working to extremely high standards. That is especially true and important in relation to the staff. Will the Secretary of State say a word or two about the need for staff security and the confidentiality of staff names? We saw a recent example where Fathers 4 Justice attacked staff at NAPO offices last week. They deserve better than that. The later part of the statement referred to courts having the ability to relax or increase reporting restrictions in appropriate cases. Will guidelines for those appropriate cases emerge from the pilot, and how will they be disseminated nationally?

The pilots will produce guidelines on the publication of anonymised judgments. Those guidelines will not relate to the use of discretion to exclude the media—that will emerge principally through the practice of the family division. We are all concerned about the security of staff, but many people who make important decisions have no option but to have their identity made public. We cannot allow a situation to obtain whereby public officials who are paid by the taxpayer are able to make their decisions anonymously because of fears for their security. In practice, the number of cases where the security of staff is threatened is tiny.

The Justice Secretary has to understand that the increase in charges from hundreds to thousands of pounds has had the real effect of reducing the number of cases referred by social services to the family courts. The policy that he has announced this afternoon will simply not work if the cases are not taken to court in the first place. He must address the funding issue, which has led to a situation in which about a third of the casework is being funded that needs to be funded.

I do not accept what the hon. Gentleman says. The money—£40 million and more—is there and is being paid to the local authorities. Let me make it clear that it was local authorities who did not wish it to be ring-fenced. The number of cases started to fall before these changes were introduced, and because of major procedural changes—the introduction of the public law outline—they are now rising.

I welcome openness, but will my right hon. Friend confirm whether I am right in remembering that during the second consultation, what most caused Ministers to hesitate in making the decision announced today was that the great majority of children who responded to the consultation were opposed to letting the media into family courts? Is he saying that he must regretfully disregard their representations, or that the design of the scheme takes into account those representations?

Of course, I do not dismiss children’s concerns, but ultimately we have to make a choice. I believe—and experience has shown this—that the media will act responsibility. As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said from a sedentary position, in practice, there has not been a problem with the observance of reporting restrictions in the youth courts or elsewhere. Whatever else people may say about the British media, they are respectful of these restrictions, and the penalties on editors and journalists if they break the restrictions are very severe.

I go slightly against the flow in saying that I am yet to be convinced by these proposals, and I will watch the pilot schemes with interest. The Secretary of State drew on the experience of the youth court when he stated that these rules have worked effectively and their spirit has been well respected by the media. I must confess—I have written to him about this—that that has not necessarily been my experience, particularly as far as witnesses are concerned. Will he say what the situation will be with witnesses in the county court and the family court? Will the press be allowed to report their names?

No, the press would not be allowed to report witnesses’ names, because they are parties to the proceedings. The situation is different for expert witnesses, but with that exception, the identity of witnesses will be protected. I have yet to see the letter from the hon. Gentleman, but although there may be rare cases where there is concern about the operation of the family courts, such occasions are few and far between.

I welcome the Secretary of State’s statement. I have experience; a family came to see me who were concerned about the local authority’s involvement in their ongoing case. The case ended up in the family courts and the judge made a ruling that the family should not approach me again while it was in court. In my view, that was not really about protecting the child, which must be of the utmost importance, but about protecting the professionals involved in the case, because I was dubious about their judgment.

I accept what my hon. Friend says. We are changing the position so that in future a judge cannot make such a ruling in any case in which a party wishes to approach their Member of Parliament.

I welcome the proposals that the Justice Secretary has announced, although a lot of the details are still to be worked out and I could not quite understand why the previous good work had come to a grinding halt.

One of the biggest criticisms of the workings of the family courts has been the lack of accountability of social workers, Children and Family Court Advisory and Support Service workers and expert witnesses, particularly when errors are made that become part of the court record—a problem that is often compounded by the high turnover in those staff. As part of the review, will the Justice Secretary ensure that such errors are not given protection and that reporting will be possible in order to highlight those errors, to ensure that they are not made and to increase the accountability of those with key roles to play in the judgments that can be made?

The judgments in such cases are very difficult. Errors may sometimes be made, but I share the view, expressed not least by the hon. Member for Arundel and South Downs (Nick Herbert), that the greater the system’s openness, including through the scrutiny of public officials, the smaller the likelihood not only that egregious errors will be made, but that they will go unnoticed.

I welcome greater transparency. Wolverhampton, which I represent, will be a pilot area, in which full written judgments will routinely be made. It seems to me that that will have resource implications, because it will take up judicial time, as well as a certain amount of staff time. Will my right hon. Friend assure me that there will be extra resources for pilot areas, to ensure a full validation and to ensure that other cases are not adversely affected by resources being sucked into the pilot cases?

The notion of written judgments is an excellent idea, given adequate resources, of course. As a practitioner—I declare an interest as a member of the family Bar and I still occasionally practise—I am fearful that bringing in the media when parties to the action are giving evidence will undermine the quality of that evidence, given that it is often highly sensitive and intimate evidence. I am concerned that the proposal will suppress the truth, which is the last thing that anybody wants.

I understand the hon. Gentleman’s concern. There is a balance to be struck. My view, based not least on the experience of the youth courts, is that having the media there will produce a better overall quality of justice and, above all, a better perception of the justice that such courts provide.

Protecting the identity of the child and giving them the privacy that they rightly deserve in cases where it is often the failure of adults that has brought them before the courts is paramount. Will my right hon. Friend be holding meetings with the Press Complaints Commission and the Society of Editors to ensure that there are clear guidelines, particularly for local newspapers, whose reporting is more vulnerable to identifying who the child is and what the family circumstances are?

The statement has rightly focused on the protection and welfare of children, but the family courts also deal with divorce cases, not all of which involve children. Will cases that do not involve children be subject to the same media scrutiny when they concern what are in effect private matters between the parties?

I must declare an interest as co-ordinator of the Justice for Families campaign.

One of the critical things that we need to do in this country is improve decision making in respect of children in public law proceedings, especially in view of the number of serious case reviews. Scrutiny in the family courts is key to that, so I welcome much of the statement. I do not think that, in reversing the judgment in Clayton v. Clayton, the Government intend to cause a 17-year-old child to be unable to complain about his or her treatment, but I ask the Secretary of State to answer the question from my hon. Friend the Member for Cambridge (David Howarth) about second opinions. Will it now be possible for a party to obtain a second opinion without the permission of the judge?

I shall have to return to the hon. Gentleman, and to the hon. Member for Cambridge (David Howarth), on that discrete issue.

I welcome some of what the Secretary of State has laid before the House, particularly his comment about lifting the veil. Given that the Government are conceding more divorce and matrimonial matters to sharia councils, may I ask what provisions have been made and what consultations have taken place with the Islamic community, and whether there is any overlap between what he has said today and statements from that community?

I have had absolutely no discussions with representatives of Muslim communities about the proposals. Members of the Muslim faith are subject to the law of the land like any other groups, and they are the first to accept that. In so far as the decisions of so-called sharia councils are accepted and enforced in the English courts, that is done according to provisions of the Arbitration Act 1996, which was passed by the previous Administration.

I welcome the statement, but may I suggest to the Secretary of State that owing to the current level of secrecy, over-zealous social services departments are often not held to account and children are often taken away from their parents for spurious reasons? I have a constituent whose two boys, aged 14 and 16, were taken into care simply because they would not speak to their mother after an acrimonious break-up and wished to be with their father. Will the Secretary of State meet me to discuss the case, if only so that he can see for himself how bad the system can be when cases such as this operate under a veil of secrecy?

Of course I should be happy to see the hon. Gentleman, but he should bear in mind that social workers and the courts as a whole are between a rock and a hard place. The burden of the criticism in the baby P case is not that the child was taken into care too soon, but that the child was not taken into care at all. There is a really difficult set of judgments that everyone has to make.

I, too, declare an interest as a member of the family Bar, although I do not currently practise.

May I press the Secretary of State on the issue of judgment pilots, and on two issues in particular? According to his statement, certain family cases will be piloted as part of the scheme. Has he narrowed that down, and does he know what cases those will be? It also appears from the statement that the written judgment will be a necessary element of all the pilot cases. If that proves successful in the pilots, will it be introduced on a wider basis, or will it be at the judge’s discretion to decide whether a judgment should be made public?

Let me make it clear that the pilots relate to the publication of anonymised judgments. The major changes relating to the admission of the media will not be piloted; they will be introduced on a universal basis in the England and Wales jurisdiction once the rules have been agreed. We fully intend the scheme to be rolled out across the country if the pilots are successful.