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How to increase trust in the family justice system

Penelope Gibbs
06 Apr 2017

Damned if they do, damned if they don’t. Judges (and social workers) in the family court get abused on social media regularly by those who feel they have been wronged by the system.  Parents grieving at the loss of contact with their children are often angry and hurt. Their sense of injustice infects others in the absence of much other information about family court cases. So practitioners and judges worry that the credibility of the system is undermined. This was the subject of an excellent debate organised by the Transparency Project this week.  This charity aims to enhance understanding of the family justice system through greater openness, without compromising children’s welfare. I have no expertise in family justice but have a few thoughts:

1) General lack of public understanding of all aspects of the justice system hampers any efforts to illuminate this particular bit. People don’t understand what a legal problem is, how it might be remedied, how legal decisions are made and what the consequences are, whether it be criminal, civil or family law. Better legal education in schools and colleges, more accessible information on the web, and more popular media depictions of legal problems would help – many people don’t read a newspaper, but do watch popular drama.

2) The media is not solely responsible for communicating about the family justice system. Fewer and fewer journalists cover court hearings, and when they do, they are (rightly) looking for an interesting story. They are not going to write about the system itself, unless there is a very marked trend. And they will gravitate towards cases where their time will not be wasted – ones which promise to be interesting and which they are actually allowed to cover.  Family hearings seldom pass that filter. The Press Association family courts reporter Brian Farmer pointed out that the listing of a family case reveals nothing of what it is about. Brian manages because he is trusted, and tipped the wink on some interesting cases. But he finds out about some newsworthy cases purely by chance – seeing David Walliams in the Royal Courts of Justice prompted him to cover his divorce case (about which scant information had been available). If media coverage is to be expanded, journalists need better information.

3) The anger of those involved in family cases smoulders on, because they feel they cannot tell their story. Family court cases involving children are usually closed to the public, and the parents are told they cannot tell anyone about what happened in court. They believe they are gagged from saying anything about their situation. In fact they are not, but the rules are very complicated. Facilitating parents and their supporters to tell their stories may be a double edged sword, but it at least it may dent the idea that family justice is a secret conspiracy.  It would also allow both sides of any story to be heard. Parents need clear (easy-read?) guidance from judges and lawyers on what they can and can’t say.

4) Should the court be open to outsiders other than journalists? Even lawyers are not allowed to observe a case involving children if it is not theirs. Judith Townend has long championed the rights of citizens alongside journalists to access hearings.  I am not proposing that family cases involving children should be opened up to anyone, but I think citizens could play a useful role in reporting on what is happening in lower family courts, which get very little media coverage and are unlikely to get more.  For Transform Justice’s research on unrepresented defendants in the criminal courts, we employed criminology post graduates to observe cases. They were interviewed, trained and given a brief on what to look for. Their reports of actual cases were invaluable. Volunteers could do a similar exercise in family courts, if closely supervised. This could facilitate research, learning and the huge job of increasing awareness of how family courts work.

5) There are silos within the justice system which need breaking down. Everyone last night, including the journalists, reiterated the importance of preserving the anonymity of children in the family justice system. But the same media organisations are involved in identifying children in trouble with the law. This is legal but damages a child’s welfare and future just as much. The media can and do say that these cases are different – that the public interest of identifying a child who commits a serious crime overrides the damage done by naming and shaming. People can accept that (which on human rights grounds I don’t), but acknowledge that identifying a child who has committed a crime also involves identifying their innocent sisters/brothers, and potentially devastating their lives. How can that be squared with the values (espoused by the media) in the family justice system?

We need a debate with journalists, practitioners, academics and judges across all the jurisdictions about what open justice means, how it can be improved and what parts should be excluded. It is to all our benefit to increase trust in the justice system, but that means breaking down the distrust between the various camps. This week’s event was a great start.