Left wide open

The argument for greater scrutiny of the workings of the family court has been fuelled over the years by a number of high-profile cases such as those of Angela Canning and Sally Clark, whose convictions for killing their respective children were later overturned, and the actions by paediatricians Professor Sir Roy Meadow and Dr David Southall, which led them to be struck off by the General Medical Council.

The real driver for last April's amendment to the Family Proceedings Rules allowing the press access to the family court was, undoubtedly, the Baby Peter case, which had put the focus squarely on social services procedures and failings.

But knee-jerk reactions by politicians rarely have the desired effect; balancing society's legitimate need to know what goes on in all our courts with the need to protect the identity of the families involved required an altogether more considered approach.

In the event, the throng of press knocking on the doors of the court last April had evaporated by May. This was because under the rules the press could only report on the gist of the proceedings and were not allowed to name the parties or the children involved. And, with the Court Service listing cases in the Principal Registry and the High Court by their case number rather than the parties' names, how was the press to know which of any day's cases involved a Canning, Clark, Meadow or Southall or for that matter a Jordan or Madonna? Predictably, the broadsheet and red top editors didn't take too long to realise there were far better pickings to be had in the Crown Court where, after all, the systemic problems identified in the Canning, Clark and Baby Peter cases had first been identified.

New proposals

The reaction of the government has been to introduce clauses in the Children, Schools and Families Bill, announced in November's Queen's Speech. Of the proposals, the two most important are:

1. A move to an open reporting system where the default position will be that information will be reportable unless the court specifically prohibits it in an individual case, while still protecting the anonymity of any children.

2. Experts who are paid to provide evidence to the court may be named.

The fundamental question is whether or not these proposals will succeed in providing an open and accountable family court without undermining the administration of justice or causing the identification of children unwittingly involved in their parents disputes with one another or with the state.

One side of the argument is that important decisions about state intervention in family life should neither be heard behind closed doors, nor be subject to restrictions on public comment or debate, and an open system will throw more light on any injustices that arise in the family court.

The other side of the argument is that the family court deals with all manner of proceedings, from state intervention in families at one extreme to disputes between parents over childcare arrangements and money on the other. As for the former, children will suffer from any media exposure no matter how oblique. And as for the latter, private disputes between families concern only the parties involved not the wider world.

Beyond these highly principled arguments, there are also more parochial ones which are perhaps more compelling in advancing the case against greater press access to the family courts.

Not achieving transparency

No matter how much the Ministry of Justice may like to believe otherwise, give a newspaper editor the choice between a celebrity argument over child contact arrangements and a local authority's application to remove a child from the care of its parents and the following day's coverage is entirely predictable. Likewise, a multimillionaire's divorce will sell far more copies than will a couple arguing over the division of their modest home, endowment and income. Trivial reporting on disputes between celebrities and the wealthy to the exclusion of more mundane, but far more representative, cases will hardly promote transparency or shine a greater light on the workings of the court.

And, at a time when the family justice system is struggling to cope with the combined effects of a huge increase in the number of care applications by local authorities, CAFCASS, according to its chief executive, is operating on 'an emergency footing' and solicitors are leaving grossly underpaid legal aid practices in significant numbers, the threat to experts and social workers of being named and shamed has a greater chance of hindering than enhancing the administration of justice. Experts will return to the privacy of their private practices, and social workers, beleaguered enough already, will find other less stressful ways of earning their, on average, £29,000 per annum.

In fact, the best argument for greater transparency has everything to do with public confidence, but, paradoxically, is more likely to undermine rather than enhance it. Opening up the family courts to greater scrutiny will demonstrate the chronic extent to which the family justice system is under-resourced. While that's certainly in the public interest, is it really necessary to expose children to public scrutiny of the actions of their parents, or make sacrificial lambs of experts and social workers to achieve this?