Mr Straw’s statements and MoJ documents:
http://www.justice.gov.uk/news/announcement161208a.htm
All of those with responsibility for these proceedings
are well-trained and work to extremely high standards.
At odds with some of his own reported comments
regarding how family justice operates and categorically disproven by media
coverage of various cases over the last few years
For entirely legitimate reasons, the privacy of parties
to family proceedings must properly be protected. This is of enormous
importance to adults, and an overwhelming imperative in cases involving
children.
It is well known that virtually everyone who ever
enters a family court walks away disgruntled at best (even the “victors”),
and so often furious at the injustice and wrong-thinking they encounter.
Faced with that is it not logical that the great majority of adults might
re-think the “importance” of their identities being “protected”. In years
of assisting people in the family courts, colleagues who do perform this
function, as I myself do at times, hear only the exact opposite – they
wish all to be revealed.
At present, anonymised judgments of the Court of
Appeal, and in some instances the High Court, are made public. But this is
not the situation for the county courts or the family proceedings courts,
which deal with the bulk of family law cases. We have therefore decided to
pilot the provision of written judgments when a final order is made in
certain family cases.
See my arguments on the main page. In short yet more
judicial propaganda will be doled out.
Mr Speaker, the consequences of family proceedings are
so significant that the parties involved will sometimes need to seek
advice or support from a range of people, including legal advisers, family
members, medical practitioners and elected representatives. To do so, they
must be able to discuss and share information about their case. In 2005,
we made changes to the rules of court to allow people to disclose certain
information to specified individuals. But after two years in operation, it
became clear that those rules remained unnecessarily restrictive and
complicated. Following a consultation last year, the government has now
decided to relax the rules on the disclosure of information in family
proceedings. Parties and legal representatives will be able to disclose
more information for the purpose of advice and support, mediation and the
investigation of a complaint, or - in an anonymised form - for training
and research. In more cases, the person receiving the information will be
able to disclose it to others for the purpose it was originally disclosed
without seeking permission of the court.
Announcements on disclosure of information to people
who could assist litigants and judgements being more readily available are
little more than typical New Labour repeat-announcing of the same
“concession”. The disclosure matters were dealt with by legal campaigners
in 2005 and nowadays are rarely considered to be any real obstacle and for
an explanation of why more judgements being available (more propaganda)
please see the main document.
*******
Family Justice
in View
http://www.justice.gov.uk/docs/family-justice-in-view.
pdf
critique to come
Family Justice
in View – interim impact assessment
http://www.justice.gov.uk/docs/family-justice-in-view-ia.pdf
critique to come
*****
Into a closed
world
http://www.timesonline.co.uk/tol/comment/leading_article/article5355207.ece
(Editorial
leader)
Family Court Proceedings have been closed to the press
and the public……[several sentences later]………..That is about to change.
This is a very misleading statement: The Appeal Court
is already open; in reality (see argument elsewhere) there will be huge
obstacles for media to make anything of any supposed relaxations.
……experts in family court cases can be named except
when doing so could lead to the children being identified………..
A perfect example of how this will be used
strategically by reticent judges is
http://www.bailii.org/ew/cases/EWHC/Fam/2008/1773.html a case I know
well as I assist on it.
Hedley j says: He lives in a rural community where,
because of the comparatively unusual nature of his disability, he is more
likely to be identifiable than if he lived in a massive conurbation.
Well actually I know this boy well and there is nothing
whatsoever “unusual” about his appearance and his behaviour is that of any
other person with learning disabilities.
Have a good look at that judgement (nothing will
change) to see how the judiciary tie up everyone for years with convoluted
argument.
And N.B. as is argued at length elsewhere, this is a
perfect example of the Legal Services Commission acting as a court when
not a court. The mother wishes to Appeal the decisions of Hedley J but the
LSC refuse her any legal aid to do so – she is bureaucratically gagged.
offers taxpayers prospect of a real independent
oversight…………
Journalists may well be independent but in reality will
have, by dint of lack of manpower or lack of interest in routine cases
such as the ordinary case for contact with a child, no effective
overseeing role. Only if the doors are properly open will adequate
scrutineers in time arise to fill the seats.
that the anonymity of the vulnerable can be preserved
in otherwise OPEN proceedings is proved in almost every rape case that
comes to court
Exactly. The argument for completely open courts.
three-year campaign
Prove it!
in the meantime parents who have felt powerless before
the family courts will no longer be condemned to silence………..
I cannot see how this conclusion can be reached. See my
argument “response to JACK STRAW”. Tightened up statutory anonymity will
mean that only the most sensational cases will even get a mention. If
journalists know that a “minor injustice” is underway, for example a
parent being denied any access to his children for a few more months
whilst a CAFCASS report writer is off sick and there is no one else to do
it – a common occurrence, and that their editor is hardly likely to wish
to run anything on such “minor” administrative matters, journalist are
unlikely to put themselves in the position of access by the aggrieved
father. (the same sad story day in day out – yes we sympathise but it just
isn’t interesting enough to print) As the aforementioned scenario is
absolutely standard in the family courts it is unlikely that family court
duty will be popular with journalists. And even less likely that there
will be enough continuity in personnel reporting for such minor stories to
be seen in the proper context – being a succession of similar excuses over
a period leading to an eventual greater injustice of all ties being in
effect destroyed.
*****
Access all
areas for media so justice is seen to be done
http://www.timesonline.co.uk/tol/news/uk/article5355528.ece
Social workers and expert witnesses who fail children
and now enjoy the protection of anonymity
There is no statutory anonymity for any such person nor
has there ever been
Crucially, media reporting of the cases will be subject
to tight restrictions to protect the welfare and privacy of the children
and families involved
The pivotal issue
But he criticised Mr Straw’s proposal to review the
question of whether privacy should remain the rule for adoption
proceedings
See argument elsewhere. The bench will resist all moves
for anything out of the ordinary to be opened up.
At present the media is allowed access to only the
Court of Appeal and Magistrates Family proceedings courts
We understand media were barred from all but the CoA a
year or so ago – so much for the lead “campaigners” knowing the subject.
How The Times
helped to end an injustice - The original heading in paper
editions but later changed to “How the Times helped to right a wrong”
http://business.timesonline.co.uk/tol/business/law/article5355523.ece
(exactly how did the Times do
this?)
Much is repeating Frances the same day.
First three
paragraphs.
Repeated in the
paragraph starting “does he believe there are egregious practices…..
The starting implication is that he, or other such
important personages, should be allowed to routinely have a look inside
family courts, but cannot. Confirmed in the later section. Nothing
announced suggests that will change.
…..means that journalists will not be able to sit in on
proceedings when a formal application to adopt is made…………
this is likely to be the largest area of judicial
manoeuvring to outwit scrutiny. And endless need for clarification in the
Appeal Court (delaying for years any real change). A technicality is that
almost all court cases where there is any local authority involvement
(usually they will be classified public law cases – even when the LA’s
involvement is not necessarily directed at permanent adoption) which
becomes a larger proportion of cases than those with a clearcut adoption
as the goal, will fall into this category. Then, also it is thought by
some acting as Legal Advisors in straightforward custody cases that a
recent development is that more cases which are undoubtedly at root
arguments over where a child will reside will have a phase in the case
when a “section 37” [social services] report is ordered. But this is
precautionary, to bring a different perspective, or sometimes even as a
tacit strategic threat from the bench. There is no evidence that adoption
will be the outcome. These cases will probably also be though classified
as closed to media due the “public law” element. I.e. the cases with the
most potential for injustice will be those that the media will most likely
be excluded from.
*****
And from the main professional lawyer publication, the
lawyer speaks:
Family courts:
privacy not secrecy
http://www.familylawweek.co.uk/site.aspx?i=ed29076
A pilot scheme will see the introduction of anonymised
judgments in family proceedings being made available online with a view to
making this standard practice.
Covered by my writings already
The prohibition on the disclosure of confidential
information to the media or the public at large without the express
permission of the court however, remains in place.
Covered elsewhere but also in the REAL world
exemplifies how meaningless these advances are – getting this “express
permission” involves making a formal application to the court. If you are
lucky enough to qualify for it, legal Aid is only provided to deal with
providing a defence against the efforts of the Local Authority (or other
parent) to prevent your life with your child. Absolutely any other
application to the court is not covered and the LSC will refuse to cover
any new application (unless Lord Justice Wall grants you a test case! But
how many want to go that far or are lucky enough to get that far). The
nett result is no change about showing anything to anyone who might
publicise an injustice. In fact it is likely to be harder to even get test
cases under the new statutes as possibilities to challenge the system
(with Appeals) will be even harder to launch.
The new law will introduce an automatic restriction on
identification beyond the conclusion of the case whilst giving the court a
discretionary power to lift the restriction - presumably in those rare
cases where there is sufficient public interest
The above argument applies again. This is not
automatic. REAL WORLD. Judges don’t say: “I think this has enough interest
that I want to relax rules on identities being revealed”. It is the
litigant who must apply. Legal aid will be denied. And to launch such an
application without legal aid will be prohibitively expensive as
specialist barristers such as Victoria’s boss can only handle such matters
and they charge at least five or ten thousand pounds a day.
And a final point – the one that best illustrates the
whole hoodwinking process, is that absolutely nobody from the family
justice world (especially CAFCASS and their like) ever wants anything to
be printed. It is absolutely always their default position. They will
always resist (legal) applications for disclosure. This is WHY it will be
impossible to easily and cheaply apply to a judge for any variance.
Clayton v Clayton is the perfect example of what
happens in the real world because I went to the Appeal Court on the issue
that I was gagged by the current rules (and an additional injunction that
I had never had a chance to defend in court) even when Hedley J, a senior
High Court judge, had said, in his written final judgement on my earlier
custody case in 2005
“If I may be permitted to say so, I greatly approve of
the approach adopted by the parents in this case and I very much hope that
they will prove themselves able to translate it into practice without
further recourse to litigation. It is to the great credit not only of
themselves but of the Guardian and the parties' legal advisors that this
eminently sensible, albeit unusual, order has been agreed which meets the
particular needs of Z. I have adjourned this case into open court so that
publicity could be given to this approach in the hope that it might
commend itself to others as a basis for discussion and negotiation”
The phrase “adjourned this into open court” is actually
meaningless as these judgements are simply handed out by a court clerk –
no one ever even bothers to turn up.
And my point, even when a conclusion of a case is
absolutely wonderfully positive – the fairytale happy ending, no critical
judgements, peace breaks out, and the HC judge specifically wishes to
“commend itself to others”, still, all other parties totally resisted
anonymity being lifted so that we could do so – commend it, in person.
Especially the NYAS (same as CAFCASS) legal team. They were adamant. In
fact to be fair Esti’s lawyer actually indicated that they would be ok
with some form of press release, but still the system managed to carrying
on gagging everyone – even when mum and dad were happy to publicise!
especially me with my injunction. I was denied legal aid to Appeal. I had
to make the first round of Appeal applications with no lawyer. And it took
over a year to get the injunction removed!
This is the REALITY of what will not change….
© Simon Clayton Jan 2009
Other Pages of interest:
Response to Jack Straw’s proposals on Family Court Openness
Critique of recent newspaper coverage and Ministry of Justice position
Negative effects if Straw reverses Clayton v Clayton
User friendly summary of: The Response to Jack Straw
