The Guardian view on the family courts: secrecy isn’t working
On average around 4,300 cases a week are heard in the family courts in England and Wales – adding up to a total of 224,902 last year. It is estimated that 62% of cases involve allegations of domestic abuse. Almost a quarter are disputes between separating or separated couples, usually over their children. For the past three years, the number of applications for children to be taken into council care has been around 13,000; the number in care now stands at a record 80,000, up from 65,000 a decade ago.
Yet despite such startling figures, and the strong public interest in understanding the societal issues that underlie them, remarkably little is known by most people about what goes on in family courts. What is known is more likely to be anecdotal, via word of mouth or personal experience, than by a formal public channel such as the press or other media. That’s because since 1960 there has been a presumption of secrecy in all cases involving children. Journalists and legal bloggers have the right to attend court, but not to report on what goes on there.
In recent years there have been several attempts to open up the courts to increased scrutiny, while continuing to respect confidentiality so that children are never publicly identified. But the transparency review published last week by the president of the high court’s family division, Sir Andrew McFarlane, should ensure that real change at last takes place. Having convened a panel and taken evidence, Sir
Andrew has come down emphatically on the side of journalists and open justice campaigners. His report says that the pace of change so far has been “glacial”, and calls for a “major shift in culture and process” so that openness becomes “the new norm”.
Specifically, journalists will be allowed to report on what goes on in family courts as of right, subject to anonymisation, and family members will be allowed to speak to reporters. Judges will be instructed to publish 10% of their judgments in anonymised form. More details of cases will be included on court lists, and there will be an annual report. Sir Andrew also wants to build a relationship of trust between the judiciary and the media, starting with a pilot reporting scheme in two areas.
Sensitive questions remain. These include which documents reporters will have access to, particularly when these include descriptions of abuse. There are also resource considerations, both on the courts’ and on the press’s side. With the court service already under enormous pressure due to legal aid and other cuts, and rising poverty and the withdrawal of support services leading to higher caseloads, it is not clear how the anonymising of thousands of judgments will be accomplished. It remains to be seen what use news organisations will make of the increased access, at a time when coverage of the criminal courts has been reduced.
But these are caveats. The overarching purpose, as Sir Andrew sets out, is not merely to reveal what goes in the family courts but to learn from it. More data, and the accountability that follows from increased scrutiny, should be expected to lead to improved practice. Family judges hold immense power, and society as a whole would benefit from an increased understanding of what they do, why they do it, and how this alters the course of hundreds of thousands of lives every year.