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September 5, 2013 permalink
The Telegraph reports that British judge James Munby is calling for openness in family court. In the case of a father who placed his story on the internet the judge refused to grant a social services request to silence him. But the Telegraph is still not able to print the father's name.
Judge calls for more transparency in family courts
The most senior family judge in England and Wales has demanded more transparency in the courts after rejecting social workers’ attempts to silence a father whose baby was taken into care against his will.
Sir James Munby, president of the Family Division of the High Court, said the public had a right to know “what is being done in their name” and called for the courts to adapt to the internet era.
Giving his ruling on a county council’s legal bid to ban the father publishing highly critical material about its social services department, the judge said the “glare of publicity” was essential to avoid miscarriages of justice.
It comes after widespread concern about secrecy in the family courts - which usually hold hearings in private - and a separate court, known as the Court of Protection, which deals with life-or-death decisions about patient treatment.
Sir James said: “There is a pressing need for more transparency, indeed for much more transparency, in the family justice system.
“There are a number of aspects to this. One is the right of the public to know, the need for the public to be confronted with what is being done in its name.
“Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life.
“In this context the arguments in favour of publicity - in favour of openness, public scrutiny and public accountability - are particularly compelling.”
He added: “We must have the humility to recognise - and to acknowledge - that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.
“The remedy, even if it is probably doomed to only partial success, is ... more transparency. Putting it bluntly, letting the glare of publicity into the family courts.”
Sir James ruled on a case involving Staffordshire County Council and a baby, who can only be identified as ‘J’, who was born earlier this year.
The court heard the infant was made the subject of an emergency protection order on the day of its birth and taken into care.
The father posted material about social workers on the internet, some of which was abusive, and announced the child’s birth on Facebook, the social networking site.
He also posted footage on Facebook and YouTube of social workers taking the child into care under an emergency protection order - and the child was named, said the judge.
Sir James said the council applied for an order which would prevent the publication of the child’s name, address and image.
The judge made an order banning the naming of the child, but refused to ban the publication of images.
The judge said his decision was intended to protect the child from identification while allowing a “public debate” to take place about the “operation of the care system”.
In his ruling, Sir James said that even “unjustified” criticism did not provide a reason for the courts to silence someone’s views.
“The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction ... even if the criticism is expressed in vigorous, trenchant or outspoken terms,” he said.
The judge said the way the internet allowed easy access to information that was sometimes sensitive in nature posed “enormous challenges”. “The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies,” he said.
“We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles.”
In July, Sir James published guidelines setting out how thousands more court judgments in care and adoption cases should be made public.
Councils have been criticised for using similar legal methods inappropriately in the past.
In 2008 a senior judge said East Sussex County Council was guilty of a "wholly unacceptable abuse of power" for rushing through the adoption of an 18 month-old child and blocking a challenge by the child’s natural father.
Source: Telegraph (UK)
Addendum: Christopher Booker comments more positively. Fixcas remains skeptical because of the ineffectiveness of previous announcements of openness in British family courts     and because Munby's rules still forbid naming the child, leaving British courts just as opaque as those in Ontario. Booker also comments on same-sex adoption.
Could this be the end of secrecy in 'child protection’?
Sir James Munby, an unusually humane and intelligent judge, is bent on rolling back the blanket of secrecy that has concealed many horror stories from public view
To the ever-growing number of us who have been trying to expose the corruption of our state “child-protection” system as one of the most shocking scandals in Britain today, there is no question that a judgment published last week by Sir James Munby, now the most senior judge in our family courts, is a very significant legal landmark. For several years I have been explaining here how this system could not have gone so horrifyingly off the rails, with thousands of children being removed from their families for no good reason, if it had not been able to hide its workings from public view behind such a wall of secrecy, going way beyond what our lawmakers in Parliament intended.
In the name of concealing the identity of the children, which all statute law is concerned to protect, not only has this been widened out into a ban on reporting anything that goes on in our family courts (along with a similar ban on aggrieved parents saying anything to anyone about what is happening to them), but it has also been made a punishable offence to reveal the names of judges, local authorities, social workers or anyone involved in a case. I am even not allowed to indicate, however vaguely, in which part of the country a case is taking place. All this is supposedly in the cause just of protecting the identity of a child.
It is the groundswell of anger building up over how this secrecy prevents either parents or journalists from revealing what too often appear to be terrible travesties of justice that Sir James Munby, the recently appointed President of the Family Division, has decided to face head on, by issuing his carefully considered judgment in the case of “Baby J”. The immediate issue was that the father of four children removed by Staffordshire county council had infuriated the social workers by going wild with rage on Facebook, publishing not only the names and pictures of his children, but also those of social workers – along with a volley of abuse at the people he saw as having destroyed his family.
Before ruling on an application from the council for a complete ban on all this, Munby devoted most of his 26-page judgment to the more general question of whether the secrecy imposed on such cases has gone too far. Since the abolition of the death penalty, he says, the kind of orders a judge has to make on whether children should be removed from their parents “are among the most drastic any judge in any jurisdiction is empowered to make”. When a young mother is forced to lose her child, she and the child may have to live with the consequences of that decision for, respectively, 70 or 90 years.
In light of this, says Munby, “public debate and the jealous vigilance of an informed press have an important role to play in exposing past miscarriages of justice and in preventing future miscarriages”. He emphasises that if confidence in the system is to be “maintained or, if eroded, restored”, it is vital that its workings should be as open to public view as possible. The answer to criticism of “secret courts” must be “more speech, less enforced silence”.
Sir James goes on to consider other issues, such as those raised by the increased readiness of anguished parents to tell their stories on the internet, ruling that these should be subject to the same restrictions as are applied to reporting in the press. But when he finally comes to ruling on the council’s application for a complete ban, he strikes out all the items not referring directly to the identity of children or their parents, allowing the naming of Staffordshire, social workers, “expert witnesses” and pretty well everything else.
This is such a startling challenge to prevailing practice that we will have to watch carefully to see how widely Munby’s principles are now followed. Clearly, this unusually humane and intelligent judge is bent on rolling back that blanket of secrecy that has been used to conceal so many countless horror stories from public view. But I recall one recent case in which a mother described her agony when her newborn child was snatched from her arms while she was breastfeeding. She quoted to the court an earlier Munby judgment, in which he trenchantly ruled that such an action was clearly in breach of “the imperative demands of the European Convention on Human Rights”. The only comment from the bench was “other judges can do what they like, but this is my court”. Now Munby is head of the family courts, we shall see whether his fellow judges accord him more respect.
The itch to give children that have been removed from their natural parents to gay couples for adoption (rather than, as in several cases I have followed, to responsible and loving grandparents), is getting into ever more of a tangle. Last week we had the story of the 87-year-old vicar who refused to christen a child because both the lesbian adoptive parents insisted on being described in his parish register as the child’s “mother”. A more “modern-minded” priest was found who was quite happy for the child to be recorded as having two “mothers”.
At least this tale did not have such a tragic outcome as one widely reported in South Africa in April, when two lesbians were tried for the murder of their four-year-old adopted son. An employee of the couple testified that the crime had been committed when the women became increasingly angry at the boy’s refusal to call one of them “daddy”. The more dominant of the partners was sentenced to 25 years for beating the child to death, the other to 22 years for being a “passive participant” in his murder.
Source: Telegraph (UK)