David Pannick, QC
Take a trip to New York and see the city from the air
Jeremy Bentham believed that “Where there is no publicity there is no justice”. To open up the courts promotes high standards because it “keeps the judge himself, while trying, under trial”. And “in the darkness of secrecy, sinister interest and evil in every shape have full swing”.
The consultation paper Openness in Family Courts – a New Approach, published last month by the Ministry of Justice, adopts a different principle. The “new approach” to “openness” is to maintain the extensive secrecy that afflicts family law.
This is a depressing story of loss of nerve by the departing Secretary of State for Justice, Lord Falconer of Thoroton. Last July, he published a consultation paper that recognised that greater openness is required in family court proceedings “so that people can understand, better scrutinise decisions and have greater confidence”. The document proposed that the media should be allowed, “on behalf of and for the benefit of the public”, to attend proceedings as of right, though the court would have a discretion to exclude them if appropriate to do so in the particular circumstances. Others could apply to the court to be permitted to attend. Reporting restrictions would ensure anonymity for the witnesses and parties.
Last month, the new consultation paper reversed direction. Lord Falconer explained that “children, young people and the organisations which protect, support and represent them were strongly opposed to allowing the media into the family courts as of right”. So because “children must come first”, the Government believes that the “openness” of family courts will be improved “not by the numbers or types of people going in to the courts, but by the amount and quality of information coming out of the courts”. This latest consultation paper is poorly reasoned and wrong in principle. There are four main defects.
First, it proceeds on a false assumption that to give the media a right of access to family law courts would damage the welfare of children. But if there are clear restrictions on reporting any details that may identify a child or the family, why is “the welfare of children at stake”? In the Court of Appeal, hearings of family law cases are almost always in public, with reporting restrictions imposed. In magistrates’ courts, the press is currently permitted to attend family proceedings, again with restrictions on reporting any information that could identify those involved. The document presents no evidence to suggest that this has caused any damage to the interests of children.
Secondly, the new consultation paper fails to recognise the strength of the case for allowing the press to attend. Family courts exercise extensive powers over the lives of those who come before them: they may order a child to be taken into care, or which of two separated parents should have custody of a child, and what financial provision should be made on a divorce. On such important issues, the very highest standards of justice are required, and the spur of publicity advances that goal. Secrecy is a breeding ground for complacency and injustice. It also promotes rumour and speculation, which inevitably damage public confidence.
Thirdly, the ministry’s conclusion that the media were seen “as only interested in reporting on certain types of (often high profile) case” shows a fundamental misunderstanding of the function of a free press. It is for the media, not the Government or children’s organisations, to decide which cases to attend and why. And the existence of a right to do so, however often it may be exercised, would itself improve public confidence and promote higher standards in those courts.
Fourthly, the suggestion that transparency and confidence will instead be promoted by the publication of more official information confirms the inability of the ministry to understand the issues. There needs to be access to courts by an independent press so it can see, hear and report what is being done in our name. It is no substitute that those in positions of authority consider which additional items of information they are prepared to reveal.
The consultation period on these new proposals runs until October 1. The new Secretary of State for Justice, Jack Straw, should read his Bentham and decide that the interests of children (though not necessarily the interests of the organisations that represent children) are best protected by opening up the legal system in order to foster informed debate and improve standards. As Justice Louis Brandeis, of the United States Supreme Court, pointed out: “Sunlight is said to be the best of disinfectants, electric light the most efficient policeman.” It is high time for family law to be led out of the dark ages.
The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford

David Pannick, QC, is a barrister at Blackstone Chambers and a fellow of All Souls College, Oxford. He writes a column for The Times Law section every fortnight
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"secret family courts" - i`ll tell you what happens.............
1] lawyers get fat
2] judges get away with crimes against humanity
3]the parents pay for it all
4]the children suffer
British family justice is something we should all be
ashmed of.
Bill, west bromwich, uk
family courts in the dark ages,how absurd....its far worse than that ..............................
Bill, west bromwich, uk
It is fantastic to see others speak out so blatently, accurately and contrary to the states horrific approach to family law. Intelligent change must be a priority. It's 18 yrs since the 89 Act came in, despite ammendments, we're living in a changing world! Politicians & the Judiciary both to blame.
james flint, Eastleigh, England
Anyone who regularly becomes involved in childrens cases is aware that the quality of decision and adherence to family proceedings rules can vary markedly.
In London, shared residence orders are becoming more commonplace. In some of the regional courts, they rarely if ever are made. A fair outcome is dependent on postcode.
This rarely filters into the public domain, neither do some of the more extra-ordinary decisions which some judges make. Judges weild exceptional power, and with no scrutiny, there can't be any confidence.
In the last year we've seen a QC convicted for falsifying evidence against the other party, a Judge tell a Sheikh to 'fly off on his magic carpet', a grandfather sent to jail for contacting his 15 year old grandchild (who wanted the contact!!!), real criminals released early from jail, and I've heard a father accused of being possessive because he wanted to see his children for more than 2 hours a fortnight.
Perhaps there is a need for secrecy!
Michael Robinson, Brampton, Cumbria
This is an excellent article, indicating that there is a real consensus between the grass roots within the law system itself. The case stated of Falconer's whitewash, can be further added to governments past record on 'consultation' - namely the Early Intervention Project, it's first validated by everyone in the profession and then destroyed as then 'renamed' to try and avoid accountability within the government and civil service that put pay to that effort to make family law a workable solution for children and their parents. Listen David Cameron, your talk of importance of the family started to sound hopeful, toward Teresa May pushing for presumption of 50 50 care, however your words soon turned to attack the easy, dare it be said mythical, errant father that does not pay. (reality CSA own stats more mothers 60 are non payers). So DC, poor showing in the local elections, how about making a real change for life of children. There is huge support for this, it's an election winner.
S, UK, UK
There is one key flaw in the argument that the best interests of the child are served by the secrecy of the family courts - the fact that the secret family courts have failed countless children ,as I and thousands of other fathers, who no longer see their children ,can testify.
This is the real reason that the family courts maintain their secrecy - it ensures that they remain unaccountable for the thousands of children's lives destroyed as a result of their laziness, incompetence and general bias against fathers.
Children and indeed adults identities are protected where necessary in the criminal courts. They can just as easily be protected in the family courts.
For the sake of our children, the failings of family court system, needs to be out in the public domain. Only then can we do something to improve the system.
Paul Hillier, Oxford, uk
At last a voice in the justice system that is 'really' putting children's interests first, thank you David Pannick QC.
The inept, complacent and downright corrupt system at times is failing children day in, day out.
Why? Because decisions and the process and the outcomes are NOT open to scrutiny or accountability.
No-one knows whether or not judges, social workers, Cafcass officers make the best decisions for children - because there is no scrutiny or accountability - just secrecy and a virtual stab in the dark at getting the best outcome.
Secrecy and unaccountability has ensure that tens of thousands of children each year receive a poor outcome whether their newly separated parents go to court or are distrustful of the whole process - as many are.
Jeff, Surrey,
It should also be noted that Falconer's interpretation of the consultation responses grossly misrepresents the position taken by the children and young people consulted. Though even if it didn't, one has to question the wisdom of basing legislation on the views of children. There is no justice in the UK Family Courts: the darkness conceals the most terrible corruption, bigotry and injustice; it is hardly surprising that the government would rather we didn't see. It's a brave barrister who speaks out.
Nick Langford, Portsmouth,
There seems to be an inherent lack of logic in the comments of Anna Chinty. If the media is not allowed to report on family matters how can it be said that it cannot be trusted and how does it demonstrate that it can be trusted? Can Ms Chinty point to a single example of irresponsible reporting of cases heard in the Court of Appeal?
Ms Chinty has greater faith in the justice system than the media. No one is advocating trial by the press instead of the courts. The press would merely report the actions of the court. They have separate functions and therefore are not comparable.
The reports by some CAFCASS officers, social workers, psychologists, and psychiatrists cannot be said to be of a standard which is sufficient to help the courts operate in the best interests of the child. Those reports will not improve until the judiciary takes a stronger line with such officers and experts or it is clear that the content may be publicised.
John Humphries, Birmingham, UK
David Pannick QC is spot on, and only one of many voices in the justice system itself who demand the opening of the Secret Family Courts. LJ Munby of the Court of Appeal, and even Harriet Harman QC, former Solicitor General called for opening up the Family Courts.
The invalid contention the court secrecy is "in the best interest of the child" is as bogus as many of the judgements issued by the Family Courts which fail to justly consider the best interest of the child. The damage to families, and children in particular is mind boggling. Without public scrutiny, injustice and failures of the Family Courts will continue apace.
While the right and best interest of children can be protected through resporting restrictions, it is unjust to claim that the rights and best interest of children trump the interests of a democratic, open and just society!
Andrei Peterson, London, UK
David Pannick is right in relation to the Press. However, it would surely be wrong to allow the general public (including nosey neighbours etc) to attend hearings.
Pannick also overlooks the point that family cases involve masses of documentation (e.g. welfare reports, psychiatric reports etc). Is this documentation to be made available to the media? Surely not. Yet, without it, there cannot be a proper understanding of the case.
Bentham was not necessarily right in saying "no publicity: no justice." In reality, one cannot fail to be impressed by the attention given to children cases by the judges in the County Court and, indeed, by the Magistrates in the family proceedings courts. Greater injustice would be done by, for example, a government which started to cut legal aid for children cases.
Peter Hargreaves, Stockport, Cheshire, England
Although it may appear as though the media should be allowed into these family courts in the interests of justice, the accuracy of that which is reported is not at a standard which is sufficient to allow all media into such sensitive court room issues.The media must demonstrate it can be trusted before they are given this freedom. In the meantime my faith lies with the justice system in this country over the media.
Anna Chinty, London, UK
Having two brothers who've been completely destroyed by the family justice system, (one whose soon to be ex wife has mental illness, and shouldn't be allowed to raise children, - but she "really really wants to", and the other whose mother was stopped from physically attacking her children only by the intervention of foreign social services, ours washed the hand of it,) I can only agree with this article.
It's my belief that there's a feminist lobby group behind the change, I can only wonder what they've got on Falconer. (I won't call him Lord, as he doesn't even deserve the title man, let alone Lord.)
It was no surprise to me, that on reflection, Harriet Harman would back away from allowing reasonable people to see the crimes against mascuilinity her sisters in social services get up to behind closed doors.
Mark Collander, Weybridge,