What Would Be the Result of Opening Family Courts Up to the Public Gaze?
Verkaik, Robert, The Independent (London, England)
The big question
Why are we asking this now?
The country's senior family law judge has given his support to proposals to open up divorce and children proceedings to members of the public. Sir Mark Potter, president of the Family Division of the High Court, has said he believes that in some cases the public would benefit from seeing at first hand how the family courts work. The results of a government consultation on a relaxation of court access rules in family cases are expected to be published by the end of the year.
What happens in our courts at the moment?
While there is an overriding presumption in favour of open justice, family courts have special rules to ensure children and divorce proceedings are held in private. Parliament and the courts have recognised that children need to be protected from harmful public scrutiny when the courts are deciding on their future care. Similar protection is afforded to adults who do not wish to have their private lives reported in the media or witnessed by the public from the court's gallery. Some family-related matters, such as maintenance orders, are already held in public in the magistrates courts where there is a presumption in favour of openness. But substantive divorce, care, custody (residence) and access (contact) matters are dealt with in the County Courts before a District Judge. These proceedings are held in private.
Who wants the rules changed?
Open justice campaigners, parent groups and some sections of the media believe the rules have established secret courts where justice is not being seen to be done. This, they argue, denies the parties a fair hearing and helps fuel suspicions of judicial prejudice. If family courts were opened up it would make judges, children workers and expert witnesses more accountable as well as instil a greater confidence in the civil justice system.
Who is opposed togreater access?
Social workers and other child protection experts believe that the welfare of children should not be put at risk by introducing new measures designed to improve the public scrutiny of the courts. They say that there are very sound reasons for ensuring that family hearings are held in private. The stigma of being identified as a child in care proceedings would, for example, only add to the child's trauma at an already difficult time in their life.
The privacy rules that protect children and adults in divorce hearings also help encourage a more inquisitorial system of resolving complex and very sensitive issues. Once the parties to the proceedings know that their evidence will be publicly disclosed it might lead to more adversarial conflicts aimed at protecting witnesses and parents from embarrassment but do nothing to serve the interests of the child. In divorce cases the family courts would become public forums for airing grievances and settling matrimonial scores.
What does the judiciary think about opening up family courts?
The majority of the senior judiciary would like to see reforms in the family court system that foster more openness. But very few, if any, support unrestricted access. Sir Mark told The Times yesterday that more open justice would help dispel some of the "myths and inaccuracies" surrounding the family courts. He said: "It is my firm belief that when people see these cases in action, and the extreme care with which they are dealt - and the fact that so much of what is said comes from interested and disgruntled parties not reporting the matter objectively - it can do nothing but good for the system."
While most of Sir Mark's colleagues would agree with this sentiment many are known to have reservations about the advantages of implementing such a policy. One senior judge has said that the value in showing the public just how well the family courts are already working would not be outweighed by the damage down to individual cases. …