Care and health / CAFCASS conference "Opening up the family courts: an open or closed case?"
Millenium Mayfair hotel, London
Speech by Harriet Harman MP
Minister of State for Constitutional Affairs
30 October 2006
Introduction
I'm very pleased to have the opportunity to be here at this conference today because what we are talking about is one of the most important and difficult issues for people in their daily lives. It always seems an irony to me that whilst criminal justice is debated continuously in Parliament and in the media, the issue of family justice hardly gets a mention. Yet decisions made in the family courts 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 lives, the child, the child's mother (and sometimes father) and the adoptive parents. The right judgment can protect a child from harm and set it on a good path for life. 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.
Taking a child from its mother and sending it to live with its father, ordering or denying contact - are decisions which will affect, for the rest of their lives, the child, the father and the mother. The right decision can give the child a good relationship with both parents - the wrong decision can ruin lives.
Family patterns change, but what doesn't change is the disappointment when a relationship that was intended for life breaks down, and the challenge for parents as they try and help their children make sense of it all. And while there is always a need to protect children from neglect or abuse by their own parents, what does not change is the trauma for all concerned when a child has, in its own interests, to be taken from its birth family.
Public policy cannot make men and women happy together in their relationships but what it can and should do is:
* Help couples who want to stay together find the support they need to work their way through the problems in their relationship;
* Help couples where the relationship has ended make financial arrangements and arrangements for the care of children in an amicable way, without resorting to the courts;
* Where there is recourse to the courts, make sure that they make their decisions in a way which commands the confidence of the parties, the children and the public at large;
* Protect women and children from the violence which all too often surrounds the break up of a relationship.
Public policy can do a great deal to support parents who are having difficulty caring for their children. But what it needs to do when that is no longer possible is
* Make sure that all the evidence is considered rigorously; and
* Put the interests, and the voice, of children at the heart of the process.
I think it is an irony that the one person who the court is least likely to see is the one who is supposed to matter most - the child. And that's the case when the courts are dealing with children caught between warring parents as well as children caught between their parents and the local authority. And how odd that there is no recognition that people want to find out what happened to them when they were a child and why. Mostly, they have to turn private detective to discover what the court decided about them. I think we should ensure that children who are old enough are as fully involved in the process as they want to be, both in private and public law cases, and that the courts should keep a full record of the evidence and judgment so that children who are very young are able, when they are adults, to find out what happened to them and why.
I wanted to give you evidence to back the point up about judges talking to children by using the case study of a family case sent to me by the mother's MP Andrew Rosindell. His constituent gave him a copy of the judgment in the case as she is allowed to do. He sent me the judgment in the case - as he is allowed to do. But I am afraid that you are all "the public at large" and I cannot tell you about it even anonymously. Which is why we cannot have a proper public policy debate without we open up the court process in a way which makes it accountable and allows discussion.
But what I can do today is to take the opportunity to
* Identify the changes that are taking place in family life
* Set out how I think we should involve children in cases that affect them
* And say how we are seeking to build confidence in the family justice system
How family life has changed: 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 the family courts.
In the past the family courts had far fewer cases to deal with. Most women did not have babies till they got married and once married they stayed married. People who get married still want to stay married. But people now see marriage as a personal relationship as much as an institution. People no longer have to stay together if the relationship has broken down. 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 certain 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 civil partnership that had broken down. And now we see the scourge of drug addiction in the 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 the work of the family courts, which many of you are involved with - and which is so important - is becoming ever more difficult.
Encouraging agreement rather than a court battle
Everyone agrees that it's better for children when adults can agree about their care: their parents, and if necessary their parents and the local authority (except in some cases involving domestic violence where it might be dangerous for there to be mediation).
The family justice system now has as one of its objectives not just judging between warring parents, but also encouraging separating parents to work out the finances and the arrangements for the children amicably. We have published a booklet: Guidelines for separating parents - Parenting Plans - to help people work out for themselves what is right for their family.
We try to encourage that in a number of ways.
Using the legal aid system to encourage mediation
Before legal aid is granted, the Legal Services Commission requires the applicant to have considered mediation. The number of couples receiving publicly funded mediation has gone up from 400 in 1997 to 14,000. Through the Legal Services Commission we now invest £14m in family mediation - up from around £500,000 in 1997.
And we have just introduced the Family Mediation Helpline, for those who want to find mediation services in their area.
Mediation helps - even if it cannot help a relationship survive it can smooth the path for a less acrimonious break-up. And our evaluation shows that 61% of the total number of family mediations were successful - and by that we mean that people came to an agreed solution rather than needing to go to court.
Solicitors as a source of mediation as well as legal advice
Too often the sense is that once you go through the doors of a solicitor's office, the battle is on. But many family law solicitors now are becoming trained as mediators. And we want to explore the possibility that the solicitors' firm is where you can find not just the legal and financial advice for the future but also the mediation to help you get there amicably. The changes in the structure of the legal profession that we are introducing (following the Clementi Review) will mean that family solicitors will be able to work in partnership with professionally trained Family Mediators. Making solicitors a focus for amicable solutions rather than conflict.
Courts requiring applicants to consider mediation
We are strongly supporting the use of mediation. New laws which will come into force under the Children and Adoption Act will ensure that everyone who applied to the family courts for contact with a child (not in care) will have had to consider mediation. The Act also gives the court the power to direct the couple to a meeting about mediation before the case goes any further.
Good legal representation
I know the large numbers of you here today who are professionals involved in family justice will be concerned, as I am, that wherever they live, people are able to get the advice and representation they need. We 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 - or when legal assistance is required - the high quality of legal preparation and representation that family solicitors and the family bar provide is of the utmost importance. Many of you will have been involved in responding to the Carter Review on legal aid. I want to reassure you that my colleague Vera Baird who is the Minister in charge of legal aid, is in complete agreement with me that quality comes first, and is working with the professions to ensure that the right fee structure is agreed for family cases in light of the responses received to the consultation on the Carter report.
Cutting out harmful delay
But 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 are no unnecessary delays in any case.
Involving children
Decisions are made in the interests of the child. The welfare of the child is paramount. In many proceedings, the court needs to know the wishes and feelings of the child. This is where CAFCASS is so crucial. Professional social workers, able to talk to children and report back to the court.
I am struck, though, by the paradox that the focus of the court is the child, but the child is:
* Not likely to be told by the court what is going to happen in the process
* Not likely to be asked by the court whether they have any questions about the process
* Likely to be reassured that they do not have to attend court, rather than asked whether they want to be in court;
* Likely to be told, if they do want to go to court, that it is unlikely that the court will grant that request;
* Not likely to be asked their views by the court, unless they have a CAFCASS officer;
* Not likely to have the chance to talk to the judge or the magistrates;
* Not likely to be told by the court the decision made by the court and why; and
* Not told when they grow up that there is a record in the court which, if they want it, will tell them the decisions which the court made about care and why.
I have spoken to many magistrates about this and some find it odd and think it would be better if there was more focus on the child. The Children Act says
1. When a court determines any question with respect to -
1. the upbringing of a child; or
2. the administration of a child's property or the application of any income arising from it,
the child's welfare shall be the court's paramount consideration.
But the court does not, routinely, consider what information the child wants, what it wants to say, whether it wants to come to court and consider telling them the courts judgment, in person, if they are old enough and keep a copy of the judgment for when they are older if they are too young to understand.
I'm sure that there are many fears that children have which could be allayed if the court talked to them directly. To some children, courts are frightening places. Courts are places where people get punished. Sent to jail. Children can think this will happen and it's their fault.
The Department for Constitutional Affairs recently commissioned research by Cardiff University, which showed that children felt that the court and their judges should be child friendly and that they should be able to put their views to the court.
On seeing a judge and being heard in the Court:
* "I would have been well prepared if the legal system had let me to go up there and say "I do not want to see my dad, I do not want to live with him". (Adam, p.52)
* "We were old enough to have a view of our own and I don't think they understood that we do we can have a point of view ourselves. It might be a good idea if the judge could actually meet the children so he could see their personalities and if they have got quite a strong personality he might know that what they are saying can't be influenced by anyone else." (Kathryn, p.90)
* "When the judge listened I felt very happy that things were actually working my way now. It was kind of good to have someone else to talk to 'cos I wanted to talk" (Olivia, 11 years old, p.108)
On the idea of being in the courtroom:
* "I actually think... you should either go into the court or maybe the court comes here or something... I kept asking my mum if I could just go into court and tell them and make it a lot easier" (Brian, 11 years old, p.59)
* "I didn't think it was fair, me sitting in the waiting room because I was old enough to understand what was going on, so I think the older the people are, if they can understand what's going on they should be allowed to sit in the court room..." (Craig, , p.64)
* "If they wanted [to go to court] then yes, if they felt that was a lot easier they should have the choice. Because then you can get their say in what they want". (Mark, p.98)
* "I don't really know. I would have kind of liked to know what was going on a bit, but it seemed kind of a bit scary." (Olivia, 11 years old, p.109)
Advice for solicitors and judges:
* "Listen to the child. It's not about the parents, it's about the children". ( Adam p.53)
We want to get to a position where, if you asked a child or young person who had been affected by family court proceedings whether they felt that the information given to them was clear; whether they understood what had happened and why; and whether they felt they had been told in a way which was in keeping with their age and level of understanding - then the answer would be "yes". Anything other than that is a failure of the system.
Later life judgments
We know how important it is to talk to children about what is happening to them and their families. 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 to the adults in the court? The court should 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. What we have at the moment is a situation where the court can remove that child from their family and there is no of a permanent record of that court's decision. And in cases where the court decides that a child should not be removed - there is not a permanent record of that either!
We must review accountability to the child and look at what court information is kept for the child and how it will be available to the child after he or she becomes 18 if he or she wants it. For some adopted children, finding their birth parents leaves them with even more questions which they need to have answered. Many find 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 involved in a private law case can, 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, 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.
I would give two reasons why this needs to change. Firstly - a child's need to know - when they become an adult.
And secondly, because of the need for accountability of the courts to those who are affected by its actions when it has found it necessary to intervene in family life.
And thirdly because I believe that, as a general rule, decision making which is accountable to those affected is better decision-making.
I agree with the president of the family division, Mark Potter, when he said that:
"The traditional reluctance of the English Judge to talk to children in private... is rooted in the rules of evidence and the adversarial mode of trial."
He believes - and again I agree - that judges should be encouraged to consider the option of talking to children in private, where children wish to do so. He acknowledges that this will raise concerns among the profession, but that these concerns may be addressed by training. He made it clear that he did not wish to be prescriptive, and he does not propose that talking to children is appropriate in all cases, but simply that judges should be more open to its benefits which will at least help them to build a more informed picture of the case.
And I agree with Nicholas Crichton, District Judge at the Inner London Family Proceedings Court (here today) when he made the point about judges speaking to children. In an article entitled "Listening to Children" published this October in Family Law he wrote, 'I firmly believe that children and young people should be given all the information appropriate to their age and understanding, to enable them to obtain a clear understanding of the whole process and how they might engage with it. At the same time, it should be clearly explained to them that it is perfectly all right to decline and to leave difficult decisions to be made by others... When a child expresses an interest in attending court, the CAFCASS officer should discuss with the judge how they might accommodate the child's wishes in this respect in order to give the child that opportunity in the most appropriate manner, addressing the particular needs of that child... At the end of the day I do not believe that courts should be making such important decisions in children's lives unless they are prepared to look them in the eye and explain why.'
So we need to look at this across the family court system and find practical solutions. We are consulting on how we can improve this situation. What sort of information could be provided? What information might people actually want? And how can it be kept? We have already begun consulting on this - including with children Our consultation has involved children.
This is a complex issue - and I would welcome's everyone's views about the best way forward.
Openness and public confidence
Later life judgments form one part of our consultation on opening up the family courts. Because over 1 million people every year now find themselves in the family courts and because the family courts make decisions of great importance in people's lives that affect them forever, it is of great concern that there is a lack of confidence in the family courts. Fathers complain of bias against them and a failure to enforce contact orders. Mothers complain that the court orders them to give contact to dangerous fathers who threaten violence against both the mother and the child. And the courts are accused of taking children away from loving families and placing them for adoption. And at the same time the courts are accused of leaving children too long with parents who are a danger to them.
I think it is unfortunate that people don't understand the complexity and importance of the work of the family courts. How can we ensure that the important work of the family courts is understood and valued? And how can we satisfy ourselves that they are doing their work properly?
The courts sit in private, so when they are criticised, rebuttal of those criticisms has to depend on assertions from within the system. But gone are the days when simply because you were a judge that the public would accept what you do and the conclusions that you reach - and that's the same for any institution now.
Public confidence in any part of the legal system is necessary for its own sake and 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 valued and respected and
* It is necessary if the system is to attract, on a sustained basis, the 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.
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.
Greater openness will mean a greater understanding of the work that the courts do.
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, to you as CAFCASS officers, Directors of Children's Services, social workers, solicitors, barristers, legal advisors and court staff, to the judges and magistrates making these important decisions and to me as the Minister accountable to parliament for the family justice system. How can parliamentarians hold me to account for a system which they cannot see?
Parliamentary accountability for the family courts is only 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 should have nothing to hide.
Protecting privacy in an open family court system
I believe the status quo - in terms of the closed nature of the family courts - is not an option. So we are consulting on how to make the family courts more open. Allowing the press in, and others in on application to the court. But with reporting restrictions which guarantee anonymity. And 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 - effectively enforced.
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.
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.
When we come out the other end of the consultation we started in July, I hope the judiciary will consider whether, and to what extent, we can "pre-figure" that change by changes in practice that the courts already have the legal powers to effect.
We will then need to legislate, but if we have already pre-figured the change - perhaps through a practice direction from the President - this will enable us in parliament to be more confident, enable the debate to be less abstract and enable us to have a clearer sense that the legislation that we are debating will indeed have the effect we want and no unintended consequences.
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 is planning to do later this year, when they review the changes they made last July to introduce greater openness into the family courts.
Conclusion
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 regard the protection of children and making decisions that cannot be agreed between warring parents 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 to be Minister in the Department for Constitutional Affairs, accountable to the House of Commons for the work that goes on in the family justice system.
I have already been greatly helped by the generous advice of Anthony Douglas, Nick Crichton and others I know are here today in my first few months as Family Justice Minister. 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.