A SENIOR family judge recently called for the media to be admitted to family courts to shake off the “canard of secret justice”.

Lord Justice Wall’s remarks reflect the views of senior judges that the time has come for more openness in the family justice system — if only to counter accusations that the system is secretive and unfair.

Proposals expected today therefore from the Department for Constitutional Affairs already have the broad backing of many judges: as Lord Justice Wall put it: “We need to have a system that is understood by and accountable to the public.” And the public, he added, “need to be fully and properly informed”.

Days later, appeal judges took another step towards openness in granting a father the right to talk about his battle over the care of his seven-year-old daughter. The landmark Court of Appeal ruling marks an end to the automatic ban on identifying children even after court proceedings have ended; instead, judges will balance in any case whether any entitlement to anonymity should outweigh the right to freedom of expression.

The appeal judges called it “a small step towards greater transparency” that would help to “rebut the slur inherent in the charge that the family courts administer ‘secret justice’ ”.

The decision involved balancing a child’s right to privacy and a parent’s right to freedom of expression under the European Convention on Human Rights: Sir Mark Potter, President of the Family Division, upheld the right of the father, Simon Clayton, to “be able to debate issues about the family justice system in public by reference to his own case”.

But how open should or will family courts be? Most lawyers back a move to allow greater scrutiny. Sarah Harman, a family solicitor who was professionally disciplined for revealing documents in a child abuse case which she thought unjust, said: “We need to know, for instance, how reliable the research evidence is in child abuse cases where young children have fractures that may or may not be non-accidental. If courts are open we can discuss court findings openly and cross-fertilise details of research which may help courts to make the right decisions for children.”

But at the same time, lawyers give warning that openness must not jeopardise children or witnesses in these most sensitive of court cases. A distinction must be drawn, they say, between admitting the media, subject to reporting safeguards, and the public at large.

Louise Spitz, a family partner at Manches, points out that the present situation is anomalous, with press and public able to attend family proceedings before magistrates, the Court of Appeal and the House of Lords. But cases involving children or divorce-related disputes are closed. Wider access, though, should be restricted to the media, she believes: journalists are more likely to obey anonymity orders while sanctions would be less likely to deter private individuals.

Publicity could also deter witnesses, particularly experts in child abuse cases, as well as parties from giving full financial disclosure. “Breaches of confidentiality could have damaging consequences ranging from disclosure of commercially sensitive information to the fact that a house has valuable contents such as jewellery which could attract unwanted attention from burglars,” she says.

Some judges have similar worries. In evidence to the Constitutional Affairs Committee’s inquiry into the family courts, Sir Mark admitted that the views of the senior judges in favour of openness were not likely to be reflected “at the coal face” and “even less by care professionals concerned not only for the welfare of children (in relation to gossip, teasing and bullying in their everyday lives) but the willingness of witnesses to become involved”. They also would have concerns about the harassment of professionals “by precisely those pressure groups that wish to attend as members of the public . . .”

Harriet Harman, QC, MP, the minister overseeing the reforms, has floated the idea of giving judges discretion to exclude certain members of the public, so that “nosy neighbours” or others could be ordered out. But such a power exposes judges to what Sir Mark calls “considerable difficulties in identifying and challenging ‘undesirables’ ”. Instead, he proposes restricting public access to those with a genuine interest in the case.

Finally, there there is the question of weighing the benefits of openness to children with potential damage. Anthony Douglas, chief executive of the Children and Family Court Advisory and Support Service, says that there are benefits if children’s interests are kept to the fore. “The key question is how to provide greater transparency well, without undermining children and young people in the process”.

As well as greater public understanding of the issues facing children, children themselves could gain better understanding of decisions made, he says. “At present, what’s left on the record for children who want to understand the basis of decisions is patchy or non-existent in private law cases (mainly disputes between parents).” Courts need to be more accountable both to the child and child’s parents: “That is particularly important for children, as the consequences of court decisions will have an impact on their whole life.”

Again, family members and children could disagree as to whether publicity was desirable. In child abuse cases, he says, openness can bring public vilification of parents, and that may not be in a child’s interests.

Harman, the minister, has made it clear that “no change” is not an option if public confidence in the family courts is to be restored. Admitting the media, at least, could be a step in that direction.

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