Greater London Panel of Family Justices meeting
Centre Point, 101 New Oxford Street, London
Minister of State for Constitutional Affairs
Harriet Harman MP
19 June 2006
I'm delighted to be here with you today. I have already had the opportunity to meet Margaret Wilson, see Nick Crichton and Avril Calder at work in Wells Street, and Sue Duncan when I sat in the back of the family court in Croydon. And I know of and admire the work of many of you that I have met through my work as Solicitor General for 4 years.
I regard the protection of children as of the greatest importance and as a member of parliament I have a long-standing interest in the work of the family courts. So I'm delighted that last month my responsibilities as Minister in the Department for Constitutional Affairs, changed in include accountability to the House of Commons for the work that goes on in the family justice system.
Being here today gives me the opportunity to meet those of you I don't yet know, to raise some questions which I think we need to discuss and to tell you why I think your work is so important.
I know that you know why the work of the family courts is so important. That is why you give up your time voluntarily to make the most difficult judgements in cases that are usually sad and often tragic.
But I want to tell you how it looks to me - as a Member of Parliament and now as Minister for family justice -and say why I see it as so important. So you can have the opportunity to tell me whether I have got it right.
The importance of the family courts
How it seems to me is that when you sit as magistrates in the family courts you make decisions that have the most profound effects on people's lives and that affect people's lives forever.
Taking a child from its mother and placing it for adoption changes lives - and changes them irrevocably. That decision will affect, for the rest of their life the child, the child's mother (and sometimes father) and the adoptive parents. The right judgement can mean the child's life can be saved. But taking a child from its birth mother is, if it's a miscarriage of justice, no lesser injustice than a wrongly imposed life sentence - both for the mother and the child.
It is hard, then, to overstate the importance of the work that you do and the difficult judgments you have to make.
Big changes affecting the work of the family courts
Of course each case has to be judged on its merits and the interests of the child. But the context has changed and many of the comfortable certainties about attitudes towards families are no longer there.
Change in family structures, change in social attitudes, greater cultural diversity, new reproductive technologies, global mobility, and the increase in drug addiction bring new challenges to your courts.
In the past the family courts had far fewer cases to deal with. Women did not have babies till they got married and once married they stayed married. Now nearly half of all children are born outside marriage and one in three marriages break up. In the past, courts would not have had to understand the different cultural issues that arise from attitudes towards the family that exist in the multiplicity of cultures that now exist in our communities. And they could rely on comfortable certainties about the respective roles of men and women within the family. They would hardly ever have to deal with children from parents in different countries and they would never have had to deal with family law issues around a child born through IVF to a woman in a lesbian civil partnership that had broken down. And now you see the scourge of drug addiction in your courts every day
So while what hasn't changed is that child cruelty and neglect must be prevented, just about everything else has changed.
So your work - which is so important - is becoming ever more difficult.
Improving the way the family courts work
As the Minister for Family Justice in the Department for Constitutional Affairs, I want to work alongside you as you seek to improve the processes in the family courts.
We need to ensure that early intervention, along with better engagement of parents and children in the process, is the norm. And that where it is safe and appropriate to do so, cases can we resolved without needing to come to court.
When cases do come to court the aim is to ensure that they are better prepared so that the agencies, properly carrying out their duties make sure there is no unnecessary delay in any case.
As you know we've carried out a review of Childcare Proceedings and to ensure that this Review delivers the intended results I will be chairing a Ministerial Group attended by the President of the Family Division; Parmjit Dhanda MP who is the new DFES Minister; Brian Gibbons who is the relevant Welsh Assembly Minister, together with wider organisations involved in care proceedings. Together we will oversee implementation of the changes arising from the review. We will meet for the first time shortly and we will make sure that you see the minutes of those meetings and are able to bring issues of concern to the attention of that Ministerial Group.
And I am aware, too, of the work of the Judicial Resources Review that Mark Potter, The President of the Family Division, has led to ensure that family cases can be decided as swiftly and as locally as possible at the appropriate level of court nearest to the family concerned. This involves the need for a specialist magistracy and strengthening of the work of the Family Proceedings Courts.
I am liaising too, with Lord Justice Thorpe, who is leading work in his role as Head of International Family Law to improve international judicial liaison. London is a global city, and with freedom of movement within the European Union, parents in care proceedings, might be living, or want to live, in different jurisdictions. Just as the criminal justice system recognises the importance of working across international borders, so does the family justice system.
The view of family courts - from outside the system
So how do we ensure that all your difficult and important work is understood and valued?
Generally speaking, I think people don't understand the complexity and importance of the work of the family courts.
And I think that is unfortunate.
When the courts are criticised, rebuttal of those criticisms has to depend on assertions from those within the system. But gone are the days when simply because magistrates are dedicated, caring and highly intelligent people, that the public would accept what you do and the conclusions that you reach. That is the same for any institution now.
Public confidence in any part of the legal system is necessary for its own sake but also because:
* It is necessary if people affected by court judgments are to accept them
* It is necessary if the work of those in the professions involved with the family justice system is properly respected and valued - legal advisers, social workers and the family bar and solicitors - and
* It is necessary if the system is to attract, on a sustained basis, the human and financial resources it needs to do such important work
Public confidence depends on public scrutiny. It has to be seen to be believed and justice not only has to be done it has to be seen to be done - including in the family courts.
Openness and public confidence
Greater openness across he whole of the family court system will mean a greater understanding of the work that you do.
It is important that a system which affects so many is understood by all. It is important that a system which makes such major decisions in people's lives commands public confidence. And it is important that the family court system which needs resources for its buildings and its running costs and for legal representation is valued by those who pay for it - the public.
I think, in this day and age, it is hard for people to value what they cannot see.
It is hard for people to have confidence in something which is closed.
It is impossible to defend a system from accusations of bias and discrimination if it operates behind closed doors. And that applies to all of us, you as magistrates and me as the Minister accountable to parliament for the family justice system. How can parliamentarians hold me to account for a system when they cannot see cases or read about them in the papers? Parliamentary accountability for the family courts is wholly theoretical while the system remains closed.
Privacy is necessary to protect families seeking justice - but privacy is not necessary to protect the courts. The courts have nothing to hide. Far from it.
And there is a total lack of consistency in the rules on who can go into and report on which court and what proceedings. Some of your proceedings are open to the press, but some aren't. Press don't come to your courts as they don't know what's going on and they don't know which they will be able to go in. And of course in the County Courts and the High Court neither press nor anyone else can go in or report anything.
So the cloud of secrecy which surrounds the work of the family courts allows your good work to be unrecognised and allows criticisms to go unchallenged and suspicion to grow.
Protecting privacy in an open family court system
Of course we need to protect families and particularly children from invasion of privacy. So when we make the courts more open, we need to ensure that we have tough penalties for those who overstep the mark. There need to be clear and effective penalties for those who breach anonymity.
I am in no doubt about the absolute necessity for there to be clear understanding of and zealous enforcement of anonymity for families and children involved in family proceedings.
We will not allow there to be a situation where confidence in the family courts rises as it allows its work to be seen, only to have that confidence collapse through children or parents suffering the anguish of being identified - either directly or indirectly.
We will be including proposals on enforcement when we publish our plans next month for consultation.
Families need confidence in the outcome of the case and the public needs confidence in the system. I don't think the interests of families and the public interest are in conflict. They are the same.
Bringing about the change
The Senior Judiciary have made it clear to the Constitutional Affairs Select Committee that they support that committee's concern for openness. We will respond to the call for change. Change that allows public accountability and guarantees family anonymity, and change that allows public confidence and guarantees family confidentiality. And how we go about that change is important:
* We need to agree the change;
* We need to see what we can do in advance of legislation to try out the change - perhaps, in the first instance, a Practice Direction opening up the High Court to the press
* We will need to legislate and
* We need to monitor the change to make sure it is working in the way that we all intend.
To that end, I will shortly be publishing proposals for change in a consultation document.
One of my concerns is that in parliament we spend a lot of time discussing legislation without institutionalising what I want to call “post-legislative scrutiny”. We need not just to get the policy right and get the legislation to match the policy. We also need to discover whether the legislation, when implemented, has had the effect that we intended and has not had unintended unwelcome consequences. We do, of course, have the very important select committee system. But what I am talking about is the government itself making itself accountable for reviewing and reporting back on how legislation is working.
This is what New Zealand are planning to do later this year, when they review the changes they made last July to introduce greater openness into the family courts.
Opening up the court and building public confidence in the family justice system is important not just for the public in general but for the people involved in the proceedings.
But what about the children? What are they told about what the court has decided and why? It is increasingly recognised that children's need to know about their background, and their need to know their “life story” grows rather than diminishes as they reach adulthood.
Shouldn't the court account for its decision to the child, the future adult, as well as the adults in the court? Isn't the court the most impartial and objective source to tell a young adult why he was in the care of the local authority or why he was placed for adoption and if his mother objected and if so why her protests were over-ruled?
At the same time as we make courts accountable publicly, we must review what court information is kept for the child, and how it will be available to the child when he or she becomes 18. For some adopted children, finding their birth parents leaves them with even more questions which they need answered? They need to know what the court did that changed their life so profoundly and why.
I think this is the case for children in divorce and separation - private law cases - as well as for children in adoption and fostering cases - public law. Currently there is no way a child, when it grows up, can find out why the family court ordered that he or she should live with mother and not see father - or vice versa. And there is not even, as yet, any consistent procedure for telling the child in private law cases - as appropriate to its age - what the court has decided and why let alone a system which will keep the information so that he or she can be told when they grow up.
So we need to look at this across the family court system and find a practical solution.
Court staff and buildings
I am aware of the importance of the court staff and the court buildings to the work of the family jurisdiction. There has been concern about reports that the courts are to suffer an 8% budget cut. I want to be clear about what is happening - there is not an 8% cut across the board, and some areas will hardly be affected. However, the courts, like all parts of the public sector, are being asked to use their resources as efficiently as possible. We have to live within our means.
The need for good public funding of family legal work
I know that you will be concerned, as I am, that wherever they live, people are able to get the advice and representation they need. It is not acceptable that despite more than a 33% increase in the legal aid budget since 1997, and an overspending in that budget currently running at £150m a year, publicly funded family law is being squeezed.
What has happened is that while criminal legal aid has seen a 37% increase and is spending £340m more pa in real terms, spending in civil and family legal aid has shrunk by 24%, some £220m a year.
Now we do want to ensure, for the sake of families and children that cases do not come to court unless they have to. But when they do, I recognise the great importance of the high quality legal preparation and representation that the family solicitors and the family bar provide.
In the Department for Constitutional Affairs, our concern is to get our spending back within our budget, redistribute legal aid from criminal to family and civil and (in criminal cases) redistribute from the top of the bar to those in their early years of call.
Our new minister in the Department for Constitutional Affairs, Vera Baird, is now responsible, with the Lord Chancellor, for legal aid. But I will ensure that the attention of the Carter review and my ministerial colleagues does not stray from the importance of the provision of a good supply of good family solicitors and barristers.
There's nothing academic or theoretical about the importance of the family justice system. Into my constituency advice surgery over the last two decades, there has been a steady stream of women coming into my surgery complaining that their children have been taken into care without due reason, neighbours alleging child cruelty and complaining that the children haven't been taken into care, mothers complaining that they have been forced to allow what they claim to be a violent ex-partner to see their children, and fathers who claim that on no evidence they've been banned from seeing their children.
I hope to be able to support you in your work in childcare proceedings, to make legislative changes where they are necessary and to do what I can to ensure that the importance of your work is recognised and acknowledged in the way that it deserves. I will be visiting your family court centre in Barnet soon and I'm happy to see anyone in the family justice system who wants to talk to me. That's how I hope we'll make progress.