A report about enabling transparency in the family justice system published on 29 October by judge Andrew McFarlane has been hailed by news outlets in the UK as marking the end of secrecy in the family courts, but a closer look at the document tells a different story.
Researching Reform analyses key paragraphs from the report and highlights its concerns with the president of the family division’s recommendations.
Growing pressure to open up the family courts has mounted in recent years.
That pressure has been caused in large part by an increase in the number of serious case reviews involving the deaths of several children, which highlighted endemic poor practice and unacceptable cultural norms inside the child protection sector. The public outcry that followed on from media coverage of these cases reluctantly forced the hands of those in charge of the family justice system to consider making it more accessible and open.
Despite this pressure, there continues to be strong pushback by family court and social work officials around the country to allow greater access to court hearings and proceedings, who frequently hide behind the mantra that families and children have a right to privacy.
That in itself is true, and no child or family should be exposed to unwanted public or journalistic scrutiny, but the mantra cuts both ways: just as every child and family going through the courts should have the right to privacy, they should also have the right to make their cases public if they wish.
One of the most concerning if predictable omissions from McFarlane’s report (who is the current head of the family courts), is the idea that families and children should have agency over their own cases.
From a legal standpoint, most of the information produced for these cases belongs to families and their basic rights should be protected in the family courts, including whether or not children and families want to make their documents available in whole or in part, to journalists.
This oversight underscores a fundamental cultural problem inside the system: the widespread belief among family law and social care staff that children and parents are never competent enough to make decisions about their own lives. This breathtaking arrogance is now a cornerstone of our family justice system and has, for decades, been driving poor decision making inside the system.
That arrogance resonates throughout the report and makes itself known very early on, in the third paragraph. Talking about the extent of the panel’s influence on the outcome of the report — a panel which included journalists — McFarlane says the document is, “a statement of my own conclusions and is not a ‘report’ from the panel as a whole.”
The report is also riddled with factual inaccuracies and sweeping generalisations.
At paragraph five, McFarlane makes the following statement: “Many of the decisions made in Family cases involve judges and magistrates exercising a degree of discretion and, in doing so, they are representing the social and other value judgments of society as to what is a fair or proper outcome in a dispute about family finances, or whether the State should remove a child into care, or what is the future course that best meets the welfare needs of a child.”
Research has already proven that judges exhibit significant levels of personal bias when exercising their discretion. This bias can lead to violent parents being given unacceptable forms of contact, where a judge is taken in by superficial charm or well practiced dishonesty. It can lead to a child being placed in care even though other, more humane, alternatives exist, simply because a judge is judging that family by their own sheltered and limited life experience.
The idea too, that judges are ordering courses of action that “best meets the welfare needs of a child,” is plainly wrong. At present, the system does not run on policies or legislation that are evidence-based. In practice this means that most of the courses of action used in the family courts have been plucked out of thin air and are not based on robust or proven scientific methods or strategies, even though proven solutions to support families appropriately do exist.
McFarlane goes on to outline the importance of maintaining “a cloak of confidentiality” around children and families in the courts, and says, “The voice of children and young people on this issue is strong and clear; they do not wish to have their personal information and the detail of their lives made public,” adding later on in the report that, “There is no doubt that the vast majority of children involved in these cases do not want to be identified and want to maintain their complete anonymity. Some of those children gave evidence to this effect, and their voices must be heard and respected.”
To say that children have had their say, and that the “vast majority” have voted against media reporting of family law cases is not only wrong, it is dishonest.
McFarlane heard from only two children during an evidence session. As members of the Family Justice Young People’s Board (FJYPB), we are not told anything about the evidence gathering process, because no effort is currently made by family justice leads to outline what lengths they may go to, to ensure their information gathering is appropriate and respectful of children’s rights.
In another piece of “research” updated for the report, the number of children interviewed stood at 12, a minute number when considering that there were more than 266,000 family court-related cases in the last year alone, amounting to hundreds of thousands of children going through the system.
There is also no in-depth detail about what these children were asked in relation to media reporting. Were they asked purely about their own cases? Were they asked whether it might be right and fair to allow a child who wanted to share their case because of a terrible injustice they suffered? Or to be able to talk about the effect of being removed from their parents and placed into care?
When Researching Reform reached out on Twitter to the Nuffield Foundation, which carried out these interviews, to ask whether they could offer basic information about these children – such as their ages and whether they were care or court experienced – Nuffield said, “seven young people were recruited from NYAS (a children’s charity for vulnerable children and those in the care system) and five young people participated in a qualitative study, which overall, evaluated 30 children judgments. The age of the young people is not disclosed because of data protection and the potential for identification.”
That’s 12 children, and, we can only assume, limited comment from 30 judgments which may have mentioned children’s wishes about media reporting of their cases. The assertion that these children could be identified through their ages is of course not right.
And with several thousand children going through these courts, and more than 12 million children in the UK, it is hard to imagine that McFarlane’s efforts come anywhere close to understanding the views of children in England and Wales.
In a less than subtle move, McFarlane then tries to double down on keeping media reporting restrictions as they are, by suggesting that opening up the family courts is less about journalistic scrutiny and more about sharing information. Information, as it happens, McFarlane wants to produce and monitor, and be able to maintain almost absolute control over.
In the segment of the report entitled, “Transparency, what does it mean?” McFarlane says, “There are in fact many ways that the Family Court can be more open, and provide more information about what takes place there, without altering the current restrictions on reporting and attendance. The publication of an annual Family Court report, greater publication of judgments, issuing of summaries of judgments, publishing daily court lists which are clear and more informative, are but a few examples.”
If transparency and openness are genuinely at the heart of McFarlane’s agenda, producing documents by the system, which includes information the system selects itself and which cannot offer an in-depth understanding of how that system works, is not going to work.
McFarlane also goes on to suggest that access to information within cases should be heavily restricted and “those attending [the family courts as reporters] should be allowed to read position statements and witness statements but not medical reports or primary documents such as police disclosure.”
Allowing reporters access to position statements by all parties while helpful in showing “both sides of an argument” cannot ever shed light on the deeper problems inside the system, and offer the system much needed feedback on the gaps it still needs to address. And while it would be lovely to think that the system can and will address those gaps itself, history has shown otherwise.
McFarlane inadvertently then makes a case for greater access to information when he says, “At the same time, regular press reports appear based upon anonymous accounts of negative experiences in the Family Court by parents, victims of domestic abuse and others. Without knowledge of the identity of the complainant, it is not possible for the system to respond or to assist the media by retrospectively finding and publishing any judgment or account of the court process in such cases. This is a thoroughly unsatisfactory state of affairs, with the drip-drip of concerning stories, that are neither answered nor explained by publication of a judgment, inevitably eroding public confidence in the Family justice system.”
The comment also clearly highlights McFarlane’s lack of understanding about how journalism at national – and often well respected – media outlets works.
Another concern in the report is McFarlane’s assumption that the system suffers with only “occasional poor practice,” which fails to acknowledge the thousands of serious case reviews, public judgments and Local Government Ombudsman complaints decisions outlining persistent law-breaking and negligence inside the system.
It is hard to see how the family court can ever inspire confidence when its head is so disconnected from the court body he manages.
Knowing as he does that calls to open up the family courts will not go away, McFarlane continues on with his efforts at controlling the process, and producing a whitewashed narrative of the system for consumption by MPs, journalists (who will in the main be completely unaware of the nuances inside the sector) and lawyers.
He proposes the establishment of a “channel of communication” in the report and says, “One aim of these channels of communication would be to assist journalists to learn more about the general working of the Family Court and the various categories of proceedings which it hears. In addition, it is well known that all MP’s receive regular complaints about the operation of the Family Court; would be a positive move for DFJ’s [Designated Family Judges] to invite local MP’s to the court so that a fuller understanding of the work and approach of the Family Court can, over time, develop.”
Journalists do not need this channel of communication as vast amounts of information about how the family courts work is already available online from official sources, research papers and reviews. Furthermore, this kind of channel would be viewed as a conflict of interest by good journalists who prefer to do their work independently of the very systems they are investigating. And where cases involve small children unable to express how they feel about whether or not their case should be made public, journalists have a duty in law to weigh up the child’s needs and rights with public interest and the family’s right to be heard.
McFarlane also proposes a data collection system to take place at the end of every case. This is a good idea, as a lot of very basic data is still not collected by the system, but that data must be collected by an independent body, not the family court judiciary, or any other government body.
The report announces several consultations, from media reporting of financial remedy cases, the extent to which local authorities and social work professionals can be named in reports, to feedback on McFarlane’s own proposals for media coverage and “opening up” the system. Alarmingly, he suggests that the consultation process will be “short” and accepted proposals fed straight into pilot schemes for reporting on family law cases.
It is hard to see this report as anything other than an attempt at frustrating media coverage of a system that fails to improve, by offering contrived alternatives that allow the family court to hold on to its cloak of complacency.
Researching Reform’s initial recommendations:
- Parents and related parties in family law cases should be asked at the start of every case whether they want their case open, or closed to the media. Children must be consulted as far as possible.
- Parents, related parties and children should have the right to reverse any reporting decision they make, at any stage of the case
- Parents, related parties and children should have the right to give any or all of their case files to a journalist
- Data from every case should be collected by an independent body, who should be tasked with revisiting the families in each case to analyse outcomes
- An independent body should be set up for children to raise confidential concerns about their cases, outcomes and care throughout their childhoods.