Family courts open up to journalists

When did the rules change?
On April 27 there was "a quiet revolution in the way society deals with families when they go wrong", according to the Independent, when journalists were sent to report on family court hearings for the first time. On the day, however, there was confusion over the new rules, with judges holding up cases, asking for special applications from newspapers and barring reporters from mentioning all but the most general details of the hearings. "Lots of journalists suddenly running about makes us nervous," said one lawyer. Others questioned whether the entry of the press, which has the support of the Justice Secretary, Jack Straw, would upset a delicate system.

Why is it delicate?
The approximately 200,000 family court hearings held each year in the UK often deal with difficult and tragic family crises. They include "public law" cases in which the state intervenes in the family in various ways, from imposing supervision orders to adoption. The courts also hear thousands of "private law" cases, normally disagreements between parents or relatives over, for example, the custody of children. About 10 per cent of families that break up settle the fate of the children in court, according to the Ministry of Justice. Since the Family Court Division of the High Court was formed in 1971, these hearings have been kept private on the grounds that children needed to be protected from the public gaze and that adults had the right to privacy in their personal lives.

Don't they still?
Yes, but campaigners say that completely private proceedings have denied some parties a fair hearing. Scrutiny of social workers, and how experts make decisions – both issues in the Baby P case – have often been stymied by "family privacy", which allows everyone involved to remain anonymous. During a three-year campaign for access to family courts, the Times received hundreds of letters from people who had been gagged and were unable to challenge court decisions publicly. If the courts were opened up, the argument goes, it would make judges, child protection workers and expert witnesses more accountable. This is especially important, campaigners argue, given the draconian powers the family courts wield.

What sort of powers?
Since the abolition of capital punishment, taking a child away from its parents is considered by many judges the heaviest responsibility left in their hands. And critics of family courts say this decision can be taken too easily. In criminal courts, defendants are innocent until proven guilty beyond reasonable doubt. A family court, however, can decide on the "balance of probability" that a child is suffering significant harm. Cases often come down to one unhappy individual's word against another's, and hinge on terms like "emotional abuse", which, although it has no definition under the law, accounts for 21 per cent of all children registered as needing protection. Procedure in family courts is made even more important by the momentous nature of some decisions, such as forcible adoption.

What can go wrong?
Social workers and experts can make serious mistakes. In its campaign, the Times told the stories of a grandfather imprisoned for 20 months for having contact with his step-grandson, who repeatedly ran away from care to seek his company; a couple separated from their three children because of a claim – but not a shred of evidence – of sexual abuse; and a mother who was identified, even before she gave birth, as a likely sufferer of the extremely controversial "Munchausen's Syndrome by Proxy", in which parents pretend their children are ill as a way of gaining attention. Most famously, in 1991, nine children were taken away from their families in the Orkney Islands – in some cases being told their mother was dead – because of false allegations about a satanic sex ring.

What do judges think about letting journalists in?
Many favour it, if only to correct the inaccurate reporting that comes from keeping them out. "So much of what is said comes from interested and disgruntled parties not reporting the matter objectively," says Sir Mark Potter, president of the Family Division of the High Court. Camilla Cavendish, the journalist who led the Times's campaign, admitted after her first day in court that the experience was "very different" to the impression she had got from talking to aggrieved people on the phone. "In court there are more shades of grey. You learn things the parties did not want to tell you," she wrote, after finally being able to attend a hearing in a child protection case she had been following for some time.

Does everyone support the change?
Far from it. Lawyers argue that closed hearings are more conducive to compromise than the adversarial style of public courts. There are also fears that social workers will refuse to testify through fear of public exposure, and that the wishes of children are being overlooked: a survey of 200 children in family court cases found that a vast majority did not want reporters present. And even the journalists aren't happy. Although they are now allowed in to court, the cases are still technically heard in private. That means the press is still bound by the Administration of Justice Act, which makes it an offence to publish anything other than what the judge expressly allows them to report. Ministers say they intend to modify this part of the law "as soon as parliamentary time allows".

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