Evidence submitted by Sarah Harman, Solicitor
INTRODUCTION
1. I am a solicitor with more than 25 years
experience in family cases, mostly dealing with child protection
cases. In 1995 I was appointed as an Assistant Recorder in the
civil courts, and sat in private law family cases until I resigned
in February 2004.
2. More recently, I have specialised in
the field of clinical negligence, dealing particularly with women's
health cases.
3. I was the solicitor instructed by the
mother in the case of Re B, which (with the case of Re U) was
considered by the Court of Appeal earlier this year Re U (a
child) and Re B (a child) (serious injury: standard of proof)
[2004] EWCA Civ 567). These were two "test cases"
where mothers had been diagnosed with Munchausens syndrome by
proxy and separated from their children. The appeal was heard
post-Canning to establish if any lessons from the Canning, Patel
and Clark criminal cases could be learned in the family jurisdiction.
4. I was seriously criticised by Mr Justice
Munby in the case of Kent County Council v Mother, Father and
B [2004] EWHC 411 (Fam). I disclosed documentation from the
case to my sister the Solicitor-General, the Minister for Children
Margaret Hodge MP and members of the media and misled the court
as to these disclosures to the extent that I informed the court
about them some two weeks after they were made.
5. I make submissions for consideration
in respect of the two following issues which are part of the brief
of the inquiry:
(i) Whether the family court system is being
run effectively.
(ii) Whether people using family courts are
getting the service they deserve.
SUBMISSION
6. My submission to the inquiry is that
the restrictions imposed by section 12 of the Administration of
Justice Act 1960 are quite inappropriate for a modern family court.
We should follow the Australian and Canadian family courts which
are open but still are founded on promoting the best interests
of the child. The evidence upon which judgments are made and the
judgments themselves should be made available to the public, and
as Canada and Australia have shown, this can be achieved while
ensuring the identity of the child is not revealed
7. I believe that this "secrecy"
prevents society having any knowledge of the workings of our family
court systems, ascertaining whether or not our family courts are
fair and in touch with current mores, or knowing whether our family
judges are serving society as a whole in the best way possible.
8. I further believe that users of the family
courts, particularly those who feel aggrieved (for instance where
diagnoses of Munchausens syndrome by proxy, or non-accidental
injury are made) are prevented from having reasonable discussions
with close family and colleagues about their cases, are denied
the right to obtain support from their communities, their churches
and their MPs, and most importantly are denied the right to search
for alternative diagnoses in difficult child protection cases.
9. In making these submissions I would (ironically)
refer to a comment made by Munby J in the B judgment which was
so critical of my actions. He said in paragraph 103:
We cannot afford to proceed on the blinkered
assumption that there have been no miscarriages of justice in
the family justice system. This is something that has to be addressed
with honesty and candour if the family justice system is not to
suffer further loss of public confidence. Open and public debate
in the media is essential.
10. But apart from making that comment,
Munby J gave the most restrictive interpretation of section 12
of the Administration of Justice Act 1960 to the extent he condemned
Mrs B for seeking advice and support and encouragement in her
case from her local MP. It may well be said that such a view is
in conflict with the law of parliamentary privilege. It is a view
that is as far divorced from reality as is possible. There can
be few MPs who have not assisted constituents over family court
issues. Are they really in contempt? Does this indicate a senior
family judge out of touch with the real world?
11. At the present time a Parliamentary
Committee is considering some amendments to the Children bill
which will allow for some disclosure of information from the family
courts to outsiders in certain limited circumstances. The proposal
is that parties in proceedings can talk about their cases to various
individuals "to obtain appropriate advice and support",
to statutory agencies, to MPs and for "approved research
to be undertaken". This represents a considerable "loosening
up" of the restrictions of the Administration of Justice
Act 1960 as interpreted by Munby J. However, it gives no opportunity
for the work of the family court system to be appropriately scrutinised
from outside.
12. Over the last few years the small but
powerful "fathers lobby" has insisted that the family
courts are unfair to fathers and favour mothers. My experience
as a part-time family judge and as a solicitor does not support
that view in any way. But secrecy lends itself to such assertions
being made and gathering momentum. If we are to have confidence
in our family justice system, this demands transparency.
13. Very few people would disagree with
the fundamental principle that the welfare of the child must be
paramount. Transparency and openness must be balanced against
the welfare of the child. I am not suggesting in any way that
openness should be achieved at the cost of the child. I look at
it another way. It is the most draconian step in a child's life
if he/she is deprived of a parent's care, love and affection.
If justice is to be done to a child, where the court proposes
to intervene and remove him/her from the family, then this is
not simply a private matter but an issue for the whole of society.
The level at which the courts intervene to separate families needs
to be achieved by a justice system which is seen to work effectively
and fairly.
14. An examination of the Australian and
Canadian family court systems indicates that they operate with
openness and transparency and still aim to meet the welfare of
the child principles. Achieving such a balance is not easy. There
may be gains and there may be some losses. But how can any democratic
system justify the restrictions on openness imposed by the Administration
of Justice Act 1960, a statute passed in an entirely different
era as far as the care of children is concerned, and at a time
when the welfare of the child was not paramount! (The paramountcy
of the child's interest was only introduced subsequently)?
15. There are of course obvious difficulties
in opening up the family court system. Salacious media reporting
intimate family details and expert witnesses being vilified are
reasons often given for keeping our family courts secret. The
Canadian experience shows that firstly that the media are not
particularly interested in reporting family cases, secondly that
the judiciary there are sensitive to such possibilities and can
close courts from time to time. Judges in those jurisdictions
are astonished—perhaps even appalled—that our system
upon which theirs is founded is so restrictive.
16. Australia and Canada are not the only
jurisdictions which operate with more openness than our own. New
Zealand, after extensive consultation and with some trepidation,
is moving towards a system similar to those in Australia and Canada.
Ireland is now enabling court reporters to attend family court
proceedings. I believe that we need to move in that direction
also.
17. I would point out that our system is
not only secretive but inconsistent. Appeal court judgments in
family cases are published and, curiously, in view of the fact
that children should not be identified, the appeal court reports
contains the child's actual initials (though not the names), which
can lead to identification.
It was quite extraordinary in the report of
the Re U and the Re B appeal that both children's actual initials
were used but a greater degree of protection was accorded to the
experts who were known as eg Dr X/Dr Y rather than their own initials.
Do we have a family court system which puts the protection of
experts as a higher priority to the protection of children?
18. I believe the committee needs urgently
to consider ways to modify our family court system so that it
can function in a transparent way but at the same time maintain
the confidentiality of the children involved. These two concepts
are not incompatible. Closed courts where decision making is not
open to scrutiny is incompatible with a democratic society.
Sarah Harman
Solicitor
November 2004
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