16/07/08: La justicia de familia es privada, no secreta (Informe publicado en Times on line)
Family justice is private - not secretive
Britain's most senior family judge replies to criticism that the courts are unfair to parentsMark Potter
In its leading article on Monday, The Times accused the family courts of operating in “a conspiracy of silence”, that allowed miscarriages of justice without the possibility of redress. This was supported by the first of a thought-provoking series of articles by Camilla Cavendish on the family justice system.
The system is far from perfect, and in her final article yesterday, Cavendish set out a ten-point plan for improving it, much of which I am in broad (but qualified) agreement with. However, the vision of a secretive system that removes children from families without good reason is an inaccurate and unfair reflection of the work of the family courts in England and Wales. The suggestion that there is a need to guard against any judges “on a crusade against parents” is a slur for which I have seen no supporting material in any of her articles.
The Children Act 1989 requires judges and magistrates to regard the welfare of the child as paramount. While they bear in mind that the welfare of the child is best promoted wherever possible by keeping the family intact, cases brought before them are, by definition, those in which there are serious concerns that harm has occurred or is likely to occur to the child if left in his or her present circumstances. Many cases involve parents with learning difficulties, drink or drug problems and very vulnerable children.
The leading article ended by stating that The Times would not be part of what has become in effect a conspiracy of silence against children “who have no voice”.
In truth, children have a voice in the guardian and lawyer expressly charged with representing their interests, and the parents, too, have the benefit of legal aid representation. (The increasing threat to the availability of this is a matter of high judicial concern.)
As Cavendish recounted, miscarriages of justice can occur, but where they do, judges will not hesitate to publish their judgments (granting the child anonymity), as does the Court of Appeal.
The leading article's main criticisms of the judicial process relate to the “secrecy” of proceedings and the fact that a lower standard of proof is required than in the criminal courts. The “secrecy” is, of course, the “privacy” that the law accords to the conduct of proceedings and the documents filed in them. If change is necessary, the solution lies in the hands of government which, over the past 18 months, has consulted widely on this problem.
Whatever the views of the media (or judiciary), the vast majority of parents and children in care cases want privacy, rather than the “washing of dirty linen” and the exploring of deeply emotional and personal issues in public.
These considerations, and in particular the views of children old enough to give their opinion, have so far persuaded the Government that a better balance would be struck by publicising the judgments in all final hearings that result in the removal of children from their parents, with the parties remaining anonymous to protect the identity of the child.
Senior judges have welcomed this suggestion. Not only would it enable the court's reasoning to be understood; it is likely to justify decisions in the eyes of the wider public. It will certainly ease the frustration felt by many judges that they cannot respond to criticism in the media based on one-sided accounts by aggrieved parents.
It is true that in criminal cases where a parent is charged with harming a child, the burden of proof for conviction is “beyond all reasonable doubt”, whereas in family proceedings the civil burden is less strict (“the balance of probabilities”).
In such cases, while parents may feel that they are in the position of the accused, the nature of the inquiry is very different. Family courts have to base most of their decisions on alleged events and patterns of behaviour within families that have extended over months or years; and their decisions have to focus on harm or the risk of harm to the child whose welfare is the centre of the inquiry and governs its outcome.
Here judges operate in a minefield of complexity and emotion in which they must take into account the evidence not only of professionals, (whether social workers or medical experts), but of family members and, when old enough, the children themselves. Judges adopt a critical approach to the professional evidence or that of anyone advocating the removal of the child from the family, but in the end they are obliged to take a decision based on the child's interests.
Miscarriages of justice are a matter of deep concern to everyone, not least the judiciary. However, the idea that such cases would have been avoided by the presence of the press when the evidence was given is highly questionable. By what criterion would a reporter be more likely to spot faults or insufficiencies in the evidence undetected by the guardian, the advocates or the judge? I do, however, emphasise that the publicising of judgments, subject to anonymity, is a development to be commended and encouraged.
Sir Mark Potter is president of the Family Division and Head of Family Justice
http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4311394.ece
Britain's most senior family judge replies to criticism that the courts are unfair to parentsMark Potter
In its leading article on Monday, The Times accused the family courts of operating in “a conspiracy of silence”, that allowed miscarriages of justice without the possibility of redress. This was supported by the first of a thought-provoking series of articles by Camilla Cavendish on the family justice system.
The system is far from perfect, and in her final article yesterday, Cavendish set out a ten-point plan for improving it, much of which I am in broad (but qualified) agreement with. However, the vision of a secretive system that removes children from families without good reason is an inaccurate and unfair reflection of the work of the family courts in England and Wales. The suggestion that there is a need to guard against any judges “on a crusade against parents” is a slur for which I have seen no supporting material in any of her articles.
The Children Act 1989 requires judges and magistrates to regard the welfare of the child as paramount. While they bear in mind that the welfare of the child is best promoted wherever possible by keeping the family intact, cases brought before them are, by definition, those in which there are serious concerns that harm has occurred or is likely to occur to the child if left in his or her present circumstances. Many cases involve parents with learning difficulties, drink or drug problems and very vulnerable children.
The leading article ended by stating that The Times would not be part of what has become in effect a conspiracy of silence against children “who have no voice”.
In truth, children have a voice in the guardian and lawyer expressly charged with representing their interests, and the parents, too, have the benefit of legal aid representation. (The increasing threat to the availability of this is a matter of high judicial concern.)
As Cavendish recounted, miscarriages of justice can occur, but where they do, judges will not hesitate to publish their judgments (granting the child anonymity), as does the Court of Appeal.
The leading article's main criticisms of the judicial process relate to the “secrecy” of proceedings and the fact that a lower standard of proof is required than in the criminal courts. The “secrecy” is, of course, the “privacy” that the law accords to the conduct of proceedings and the documents filed in them. If change is necessary, the solution lies in the hands of government which, over the past 18 months, has consulted widely on this problem.
Whatever the views of the media (or judiciary), the vast majority of parents and children in care cases want privacy, rather than the “washing of dirty linen” and the exploring of deeply emotional and personal issues in public.
These considerations, and in particular the views of children old enough to give their opinion, have so far persuaded the Government that a better balance would be struck by publicising the judgments in all final hearings that result in the removal of children from their parents, with the parties remaining anonymous to protect the identity of the child.
Senior judges have welcomed this suggestion. Not only would it enable the court's reasoning to be understood; it is likely to justify decisions in the eyes of the wider public. It will certainly ease the frustration felt by many judges that they cannot respond to criticism in the media based on one-sided accounts by aggrieved parents.
It is true that in criminal cases where a parent is charged with harming a child, the burden of proof for conviction is “beyond all reasonable doubt”, whereas in family proceedings the civil burden is less strict (“the balance of probabilities”).
In such cases, while parents may feel that they are in the position of the accused, the nature of the inquiry is very different. Family courts have to base most of their decisions on alleged events and patterns of behaviour within families that have extended over months or years; and their decisions have to focus on harm or the risk of harm to the child whose welfare is the centre of the inquiry and governs its outcome.
Here judges operate in a minefield of complexity and emotion in which they must take into account the evidence not only of professionals, (whether social workers or medical experts), but of family members and, when old enough, the children themselves. Judges adopt a critical approach to the professional evidence or that of anyone advocating the removal of the child from the family, but in the end they are obliged to take a decision based on the child's interests.
Miscarriages of justice are a matter of deep concern to everyone, not least the judiciary. However, the idea that such cases would have been avoided by the presence of the press when the evidence was given is highly questionable. By what criterion would a reporter be more likely to spot faults or insufficiencies in the evidence undetected by the guardian, the advocates or the judge? I do, however, emphasise that the publicising of judgments, subject to anonymity, is a development to be commended and encouraged.
Sir Mark Potter is president of the Family Division and Head of Family Justice
http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4311394.ece
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