With a fanfare of muted razzamatazz the veil of secrecy that has enshrouded the family courts for 40 years is to be lifted. From today their operation will be subject to public scrutiny. Or will it? By sleight of hand and gesture politics this government has, once again, introduced a toothless and cosmetic reform, tossing a delicacy to its friends in the media while shamelessly attempting to delude the people.
The justice secretary, Jack Straw, says that it is vital that the family courts “command the confidence of the public. If justice in these courts is seen to be done they will be trusted by the public”.
The judicial processes of democratic societies are open to the public and the principle of transparency prevails. There are times (for example to protect national security or the identity of a rape victim) when the public’s gaze may, to a degree, be occluded. However, and as a general rule, the doors are unlocked and individuals named and shamed. Courts that operate behind closed doors are the hallmark of repressive regimes.
Family law is a significant exception to this general rule. For example, 40 years ago an enlightened government made radical changes to the law on divorce. One consequence was the scrapping of public trials of divorce hearings, so that the tragic and pathetic details of the breakdown of marriage were no longer dissected by a prurient public and a self-righteous newspaper industry. With one stroke of the legislator’s pen, the press was denied the right to report on individual cases of, say, adultery or cruelty – unless the person involved elected to defend the allegations.
If the protection of an individual’s privacy in relation to his or her marital affairs is a small moral imperative, the protection of their innocent and vulnerable children is a massive one. I recall sitting in an open family courtroom in a small town in North Carolina when the underwear of a benighted and inadequate family was being washed and hung out to dry in front of all who cared to attend the proceedings. Whatever the failings of the adults, and whoever was to blame, I squirmed in my chair as I anticipated the impact on their five children as the secrets of their parents’ bedroom was picked over by their neighbours in the public gallery.
There is, of course, a classic tension between the rights of the individual and those of society. Critics of the opaque nature of the family courts have long argued that if a judge’s performance could be analysed (in much the same way as Match of the Day pundits pick over a referee’s penalty decision) there would be less quirkiness, greater consistency, and outcomes more in keeping with the will of the people. A powerful factor in today’s relaxation of the rules was the lobby for the rights of fathers after relationship breakdown. They argued that the judiciary’s (supposed) bias in favour of mothers depended, for its survival, on closed courts.
An extra tension is added to the mix by the press itself. Its demand for the right to report may well be motivated by a selfless desire for an ever more open, accountable and democratic society. Alternatively it could have come about as the result of an unsated appetite for further salacious and marketable material. Today the media protests are about the restrictions imposed, and the exclusions reserved to judges. Noteworthy by its absence is any protest that the public galleries remain barred.
If Jack Straw is right, that justice needs to be seen to be done, the restrictions and exclusions need to be abandoned. If he wants the courts to be trusted by the public, he needs to let the public in rather than asking them to assess trustworthiness through the prism of a restricted or excluded press. Should he wish to protect the vulnerable and innocent victims of family trauma, he needs to abandon his eye-catching, vote-winning, essentially flawed reforms.
This article first appeared on the Guardian website:
Jeremy Freedman: firstname.lastname@example.org