Secrecy is bad for the family

- 03 March 2005;

Sarah Harman can feel vindicated as family courts come under the spotlight, writes Joshua Rozenberg, Legal Editor.

“Although I am repentant about misleading the court," said Sarah Harman, a leading children's rights solicitor and sister of one of the Government's law officers, "I'm certainly unrepentant about trying to bring my concerns to the attention of MPs, the media, my sister and Margaret [Hodge]."

Miss Harman was reflecting on a case reported here last March, when Mr Justice Munby found that her decision to send confidential court papers to her sister Harriet, who is Solicitor General, and Mrs Hodge, the children's minister was -on the face of it -contempt of court. The case hinged on the fact that the papers involved family proceedings, which not even the press can normally attend.

Her client, a mother found to have deliberately harmed her child, was identified in the documents. The mother was challenging a diagnosis of Munchausen's syndrome by proxy, an attention-seeking condition first identified by the controversial paediatrician Sir Roy Meadow.

In January last year, when Miss Harman alerted the court to her unlawful disclosures, she was concerned that the family court had been basing its decision on the evidence of unreliable experts. "Already, at that time, there was a lot of concern that Munchausen's syndrome by proxy was not a reliable diagnosis" she said.

Last May, the mother lost her appeal. Dame Elizabeth Butler-Sloss said in the Court of Appeal that there had been enough non-medical evidence for the trial judge to have concluded that the mother had been responsible for the child's injuries.

Even so, Miss Harman now has every reason to feel vindicated in her campaign for greater transparency into the family courts.

Section 62 of the Children Act 2004, introduced in response to her case, now paves the way for family courts to allow information to be disclosed to MPs and peers, statutory agencies and supervisory bodies - though not the press or public. And, this week, an influential committee of MPs urged the Government to go further.

The constitutional affairs committee heard from Miss Harman that women who wished to challenge allegations of non-accidental injury to their children were prevented by family court secrecy from discussing their cases with close family and colleagues, their churches and their MPs. More importantly, she added, they were "denied the right to search for alternative diagnoses in difficult child protection cases".

Even the judiciary acknowledged that the lack of transparency was fuelling the notion that courts were biased against a particular group of litigants.

Mr Justice Munby told the committee that the family justice system was under criticism "because it is perceived as being a secret justice system - and in that sense, we are crippling public debate". A lot of the criticisms, whether they came from Fathers 4 Justice or the NSPCC, were necessarily anecdotal and nobody could see the relevant material. "I think it is doing us serious harm" the judge said, "and I do not think the existing system, the existing rules, are necessary".

That approach is shared by other judges, including the retiring president of the High Court Family Division, Dame Elizabeth Butler-Sloss, who would allow reporters into the Family Division under certain restrictions.

Mr Justice Ryder had already gone a step further: he ruled in public on a recent case involving international child trafficking, subject only to restrictions on identifying the children involved. "The trust in the media has been amply re-paid in this case and I am grateful" he said.

But the Government was more cautious. Lady Ashton, a minister at the Department for Constitutional Affairs, told the MPs she did not want to discourage witnesses from giving evidence. Undeterred, they pointed out that courts outside England and Wales managed perfectly well.

"A greater degree of transparency is required in the family courts" the committee concluded. "An obvious move would be to allow the press and public into the family courts under appropriate reporting restrictions.

"Anonymised judgements should normally be delivered in public unless the judge specifically chooses to make an order to the contrary."

In the MPs' view, "this would make it possible for the public to have a more informed picture of what happens in family courts."

"This is good common sense" Miss Harman said. "To suggest that those of us who want openness are disregarding the welfare of the child is not the issue."

She insisted that the child's identity could be protected. "The people who benefit from closed courts are experts who don't get scrutinised and local authorities that don't want their work to be looked at. The sooner we have openness, the better."