Memorandum submitted by the Children's Commissioner for England (CS 17)




Sir Al Aynsley-Green, Children's Commissioner for England

Sue Berelowitz, Deputy Children's Commissioner for England

Dr Julia Brophy, University of Oxford


Children, Schools and Families Bill (Part 2 - Family Courts)


Interim policy and practice implications

Below is a selection of interim findings based on in-depth interviews with 35 children and young people (the aim is to gain a sample of 80 children). The study is funded by the Children's Commissioner for England and aims to provide information from children and young people to assist policy makers and practitioners when considering their needs and rights in complex questions about media access to family courts, and issues of transparency in the family justice system.


The research addresses both recent changes to the Rules (April 2009) permitting media into family hearings, and further issues raised by aspects of Part 2 of the Children, Schools and Families Bill - family courts, regarding sensitive information and information pertaining to the identity of children and families.


At this interim stage much caution is necessary and caveats apply. Nevertheless, the direction of findings to date, indicate some serious problems are likely to arise for children, clinicians and thus family courts, with serious implications for children's safety and well-being.


Children's views about the principle of media access to hearings

Almost all children interviewed to date were opposed to the media being allowed into family courts to hear children cases.


Assessment for courts and disclosure of maltreatment

Doctors have to tell children the media may be in court (their ethics demand this, and children will need to be given this information before making any disclosures).


Children want to be told before they get into the substance of the discussion with doctors. Being told the press may be in court will impact on children's willingness to disclose maltreatment (physical or sexual abuse and neglect, failures of parenting and children's views and wishes and feelings) to doctors. Almost all respondents said children would be unwilling or less willing to talk about ill-treatment by a parent and disputes between their parents, or their wishes and feelings. 


Despite being made aware that there is a formal ban on publishing information that would allow for the identification of children in any publication, once told that a reporter may be in court children and young people will be unable/unwilling to talk about serious maltreatment by a parent.


Indications are that whatever adults tell children about the law barring publication of information that would allow children to be identified, most will remain unconvinced of the power of law, and other adults - lawyers and judges - to protect their privacy.


Outside of identifying details, indications are that other sensitive information may allow them to be identified, and children/young people do not trust newspapers to protect their privacy.


Media access to reports for courts

If the press were permitted to see expert reports, indications are that such a change would have a similar impact on the willingness of children and young people to engage in the assessment process and give vital information about maltreatment and wishes and feelings.


The role of welfare and legal representatives

Young people expect other professions - social workers, guardians and family court reporters - to take responsibility for telling them a reporter may be in court. This may however have similar consequences in terms of children's willingness to trust and disclose issues. This has particular implications with regard to issues of trust and building relationships with their social worker prior to, and during proceedings.


Issues for family courts

Where children and young people are unable/unwilling to talk about what has happened to them, family judges may be faced with making difficult and often life changing decisions about a child in the absence of a child's evidence and their wishes and feelings.


Respect for children's views and privacy

The need for adults to respect children's rights to privacy permeates discussions about parents speaking to the press.  While cases are ongoing all young people said parents should not be permitted to speak to the press; once the case is over some were less adamant about this.  But in all situations where children are old enough to express an opinion, young people said parents should seek their permission before talking to the press about proceedings about their care and future welfare.


Publishing information from cases

Children face the same dilemma courts face: much information in cases - by its very nature - can identify a child/family in a community. Children realise this when considering what information might be published from a sample judgement. Most of those interviewed to date did not want any information from judgements to be published in the press. 


Where a small group thought some information could be published, interestingly, the information they selected from judgments all related to a wish to demonstrate to other people that children had not been removed from their parent through any fault of their own, that they (the children) did their best, that it was not their fault etc.


Details about children such as the area where they live, their schools/clubs, information about other family members, religious affiliations, the location of the court hearing their case, any harm they had suffered, and the conditions in their home, and their parents problems - were all features which most said should not be reported.


Fears about privacy

Even with information telling children they cannot be named in any reporting, they remain fearful that information from hearings (about serious failures of parenting and its manifestation in children's lives, problems between warring parents and the impact on children's care and emotional well-being) will end up in a newspaper, and on the Internet. They are worried about further humiliation and the prospect of bullying in schools and communities.


Equally, most children did not want the details of parents' failures to be reported - they were protective of failing parents.


The work of family courts

Young people said judges/magistrates should seek the views of children before deciding whether to admit the press to a hearing about their care and future safety.


This view should be placed in the context of children's rights under Article 12 of the UN Convention of the Rights of the Child (CRC) 1989. Article 12 states that children must not be treated as silent objects of concern but as people with their own views and feelings, which must be taken seriously. It states (1) 'parties shall assure to the child who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child' and (2) 'For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.' Thus children should be given an opportunity to be heard in any judicial and administrative proceedings affecting them - either directly, or through a representative or an appropriate body.




Welfare and legal representatives must therefore seek children's views on media access to family hearings in preparation for each hearing. We currently have no information on whether/how this is being done in practice, or the impact on young people - or indeed on issues of cost and delay.



January 2010