March 29, 2007
The forces of secrecy are prevailing
Last week a High Court judge denounced the “nightmare” suffered by a couple who were wrongly accused of harming their baby son. They were separated from that child for 12 months, the first and formative year of his life. During that time the mother became pregnant again but had an abortion, because she could not bear to risk the authorities taking that child too.
So those who rushed to judgment ruined four lives.
“This is not a case,” said Mr Justice Ryder, “where there is no smoke without fire. This is a case where a family court and the expert who advised it got it wrong.” The consultant neurologist, Wellesley Forbes, was “too absolute” in blaming the parents. Two courts refused to let the parents seek a second medical opinion. The appeal court finally agreed to call a paediatric neurologist, who found that the injury had been caused before birth.
Mr Justice Ryder described a doctor who “strayed from the role of expert into the role of decision maker” and a family court judge who “failed to detect that that was what had happened”. Even more shocking is that we would know nothing had Mr Justice Ryder not chosen to make his judgment public.
Oldham Council, which brought this case against this couple, opposes the Government’s proposals to open up the family courts to scrutiny. No surprise. Oldham’s response to the Government’s consultation is that open courts could worsen “an already upsetting experience” for children.
But who will be more upset by transparency, children or sloppy professionals? What is most upsetting about the family courts is that they can pass an effective life sentence, the permanent removal of a child from its parents, on the word of an “expert”, with no criminal conviction and no accountability. The family courts operate in secret. Secrecy is a gift to the incompetent and the corrupt.
County court judges, family lawyers, doctors, children’s charities and councils are massing to block reform. This was predictable. Harriet Harman, the Constitutional Affairs Minister, still has a strong hand to play as her reforms were recommended by the Constitutional Affairs Select Committee.
But a new and unexpected obstacle has thundered into her path: her boss. It is becoming clear that Lord Falconer of Thoroton, the Lord Chancellor, is a staunch ally of the forces of conservatism. He is deeply uncomfortable about letting the press and public into family courts. As a lawyer married to a county court judge, he is being heavily lobbied by his profession.
In a little-noticed but important speech last week, Lord Falconer left little doubt where he stands. He explained his extraordinary recent decision to limit the Freedom of Information Act by saying that it had become “a research arm of the media”. He went on to make the breathtaking claim that children had made it “crystal clear” that they did not want journalists in family courts.
That is a bizarre interpretation of the consultation findings: a third of children agreed that the media should be allowed into family courts automatically, with a majority agreeing that the decision should be up to the people involved in the case. One can only conclude that he was expressing his own view, not that of children.
That is not to dismiss the genuine concerns about how to protect children. Of course they should not be named, or be at risk of being tracked down by abusive parents. Of course some journalists may seek to breach their privacy for a headline.
But other countries have found ways to resolve this, including strong sanctions for breaching reporting restrictions. Many options are being debated. This is not the real issue.
The opponents of openness claim that their concern is the “welfare of the child”. Yet the true interests of the child lie in protecting him or her from a miscarriage of justice. At the moment we are simply protecting the professionals.
The Royal College of Paediatricians fears that doctors will not give evidence if they can be named. But the Chief Medical Officer has found that 80 per cent of paediatricians have never been expert witnesses, not because of adverse publicity but because they have never been asked. The lawyers say, in effect: “Trust us.” But the few cases made public reveal errors by judges who were confident that their reasoning would never be read by anyone.
Lord Falconer says that striking the balance between privacy and open justice “may well involve allowing the press or the public in only where the judge expressly agrees as an exception”. That would be the death knell of these reforms, a blatant attempt to preserve the status quo. Judges are free to publicise their judgments now. But few do.
It seems that Lord Falconer may not be content only to scupper the Harman reforms and turn the clock back on freedom of information. He is also considering giving magistrates discretion to close their courts. Is that really his solution to the anomaly of family courts being secret and all others open: more secrecy?
Ms Harman will not stop — yet. But she needs the legal profession to understand that more openness is the only way to ensure that justice is done, and is seen to be done. In Oldham, the only reason the parents of that baby boy have got him back is because of the courage and tenacity of their defence lawyers in pursuing a second medical opinion.
They are the heroes. Is it not better that we should know them? Is it not better that we should know if Dr Forbes has been criticised by other judges in the past? In the dark, we cannot see whether patterns of injustice exist. We cannot help the victims. The Lord Chancellor cannot believe that secrecy serves justice. He cannot.
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