Operations of the Family Courts - Justice Committee Contents

Written evidence from Dr Julia Brophy, University of Oxford (FC 31)


A1  Major concerns exist regarding children's views and rights to privacy. The implications of their unwillingness or inability to discuss/disclosure parental abuse or parents' behaviour in the face of potential media attendance and reporting and a failure to consideration their rights under Article 12 of the UNCRC requires a rethink and a proper consultation exercise before moving any further in this field and certainly before implementation of Part 2 of the CSF 2010

A2  Children and young people are unconvinced of the power adults or formal rules prohibiting publication of certain information to protect them. They do not trust reporters and do not think the details of painful, humiliating experiences in their care is the business of newspapers or the public. They are therefore likely to effectively withdraw from proceedings in the face of media attendance. This has serious implications for judges charged with protecting their rights, welfare and safety.

A3  There is agreement across groups that improvements are required in publicly available information about the work of family courts and decision-making process. What was not agreed - and what is become more questionable - is whether the media as a general rule is able/best placed to delivery this policy objective.

A4  There is also mounting agreement - between some supporters of the new rules and Part 2 of the CSF 2010 Act and those who opposed both developments - that provisions are unworkable

A5  Both groups (included some journalist and editors) have identified increased costs and delay implications.

A6  The implications for lawyers, doctors and others working directly with highly vulnerable children are even more complex and require immediate consideration. Their concerns about professional ethics and violations of children's Article 12 rights require attention.

Q4 - Confidentiality and openness in family courts, including the impact of the recent changes in the Children, Schools and Families Act 2010


4.1  I am a senior research fellow at the Centre for Family Law and Policy at the University of Oxford. I have directed a number of major studies with awards from The Department of Health, The Ministry of Justice, The Nuffield Foundation, Office of the Children's Commissioner (England) and the London Family Justice Council.

4.2  I sit on several advisory committees in the field of family law including the Thames Valley Family Justice Council, the National Youth Advocacy Service and the Executive Committee of the Association of Lawyers for Children. I worked with the Interdisciplinary Alliance for Children and until recently sat on Research Advisory Committee for British Agency for Fostering and Adoption and the National Family Justice Council (Diversity Sub-Committee). I was consultant to the public law review team at the Ministry of Justice in 2006 undertaking a review of Children Act research to inform policy and support the team[24] and advised the Guernsey Administration on an evaluation programme for the Child, Youth and Community Tribunal.

4.3  My main fields of interest are interdisciplinary research and training in the family justice system and the interface of clinical and welfare issues, and law. Major studies include care proceedings under the Children Act 1989, an evaluation of the "significant harm" criteria, use of experts, the views and experiences of child psychiatrists, the views and experiences of parents, the work of judges and children's advocates, and the voice of the child. I have a particular interest in issues of diversity and have led several studies on issues of cultural, linguistic and religious diversity in child maltreatment.[25]

4.4  I have recently undertaken an evaluation of a pilot scheme, followed by a national procedure (Public Law Outline) aiming to improve court management of care applications.[26]

4.5  I have also undertaken two major studies about media access to family courts (a) review of media and public access to family courts in other jurisdictions[27] and (b) a study of the views of children and young people regarding media access to hearings.[28] With regard to the Children, Schools and Families Act 2010 - Part 2, I have commented on the Bill[29] and gave oral evidence to the Bill Committee on the 21 January 2010.

4.6  I also gave oral evidence to the Family Justice Review team, chaired by David Norgrove, on the 28 August 2010. Their remit does not include confidentiality and openness but the review panel agreed that some questions it has set are related to questions of information about and funding of the family justice system and thus concerns about privacy and transparency are overarching, relevant for the Review and Select Committee Inquiry.

4.7  I have sat on a number of panels at various conferences with members of the media, judges, lawyers and clinicians debating issues and the Bill/Act. I have had discussions, most recently with the Assistant Director of the BBC Panorama team regarding a (now televised) programme on a case involving serious injury to a baby and where the parents wished to name experts; they took their application to the High Court and to the media.[30] I have undertaken a workshop for practitioners[31] and am due to speak at the Jersey Conference on Privacy and Transparency - Disclosure and Publicity in Children Cases (October 2010 - co-chairing a session with a journalist) and am a plenary speaker on this issue at the Annual Conference of the Association of Lawyers for Children in November.


4.8  Following changes to the Family Procedure Rules in April 2009 the media are permitted to attend family hearings unless otherwise dictated by the judge. That change has important implications for everyone in the family justice including the children/young people who are the subject of proceedings. This is now coupled with the provisions of Part 2 of the Children Schools and Families Act 2010 - which, in principle, aims to facilitate the reporting of family cases and the naming of certain experts who assess children, parents/others, provide reports for courts and - if issues are contested - may be called to a hearing and cross-examined about their evidence.

4.9  The overall aim of these changes (despite major opposition[32]) was said to be increased reporting of children cases by the media and thus increased public awareness, understanding and confidence in family courts as just and fair.

4.10  Various allegations have been made about the benefits of press attendance and reporting of family hearings both in England and Wales and in other comparable jurisdictions. These are outlined in detail in Brophy with Roberts (2009).[33] While internationally, rules and practices differ widely, those in favour of media access to family hearings in private law cases (predominantly fathers - albeit a relatively small group) argue courts are biased in favour of mothers, while those in favour of the move in public law hearings argue local authorities (charged with the protection of children) have removed children unfairly. Both groups argue media attendance and reporting of cases will reveal unfair practices and hold courts and others to account.

4.11  The latter group - along with a limited number of journalists - have also been critical of expert witnesses (doctors instructed during proceedings) particularly but not limited to experts reporting in criminal cases following the death of a child. Campaigner (including certain journalists) depicted family courts as "secret", arguing judges and experts are unaccountable for their views and decisions.

4.12  A change of Lord Chancellor in the (then) Labour administration resulted in a change of "reading" of stakeholder evidence[34] and a change of policy on media access to family hearings.[35] The new Minister for Justice and Lord Chancellor, Jack Straw, argued that opening family courts to the media would counter charges of secrecy; the press would report on the process, not the personal and intimate details of adults and children involved in cases and thus address alleged lack of public confidence in the system. The full background to this change of view and arguably a downgrading of the interests of children is set out in Brophy with Roberts, 2009.

4.13  Those opposed to media access in children cases argued hearings are not "secret" but necessarily private, that despite a formal prohibition on naming children and parents, they will be able to be identified from press reporting and it was also felt that press access to hearings would influence the willingness/ability of certain mothers - and children - to seek the help of courts (see below).

4.14  Major concerns focused on (a) children's rights to privacy, concerns about their welfare and willingness to disclosure abuse and discuss their true wishes and feelings in the face of media attendance, and (b) the impact on children and courts of increased delay and costs as courts determine contested applications (between the media and families, between parents themselves and between parents and children) about media access and publishing.

4.15  It was also argued that the media would largely only be interested in reporting "sensational and salacious" aspects of cases, that it would in effect "cherry pick" cases that are not representative of most proceedings, and would not present a balanced picture or information about the process of deciding difficult cases - which the public needs in order to better understand the work of family courts. Many contributors - including some member of the press - argue that as commercial enterprises, media priorities would be on information that sells newspapers or increases viewer ratings.

4.16  Those opposed to press attendance also argued that given commercial priorities media coverage would be likely to infringe people's rights to privacy about the most intimate details of their family life and parenting. In particular some of society's most vulnerable children would suffer further harm and risk through media exposure of the most intimate details of their care and maltreatment. Information would allow children would be identifiable in local communities - even if they were not named as such - and they would be likely to suffer further because of this.

4.17  It was also argued that in general restricting attendance and reporting in family cases facilitates full and frank disclosure from parties and thus early settlement of some cases. In cases of domestic violence and forced marriages it was argued women would be reluctant to seek the protection of the court if told (as they must be told) of potential press attendance at a hearing in which painful and difficult information has to be shared.

4.18  It should be noted however that there is agreement across many groups that there needs to be improvements in publicly available information about the work of family courts and the decision making process. This is especially the case with regard to information available to families involved in proceedings. What is not agreed however is that media is the best vehicle to meet this agenda (see below).

4.19  It is noteworthy that some 16 months after the change of rule on media access to family hearings, that there has been no independent comprehensive monitoring of these issues.

4.20  There are some examples of media coverage - in newspaper reporting and on television and radio. With notable exceptions[36] the picture presented in reporting - ends support to concerns about accuracy, balance and accountability in reporting.

4.21  Given my discussions with the Assistant Director of the recent Panorama programme about the use of experts and a need for a balanced and accurate framework for the planned programme on the case described above, I am willing to share my concerns about the subsequent programme with the Select Committee if that would be helpful (along with other reporting examples). It demonstrates the validity of concerns - but also underscores difficulties endemic in an expectation that the media can/will meet the public education agenda.


4.22  It should be noted that many if not most allegations about "secrecy" and bias within family courts and most claims made in favour of admitting the press (ie so they can address these allegations and provide evidence that proceedings are fair and just) have been rehearsed in other similar jurisdictions (eg family courts in parts of Canada, and Australia, and most recently, in New Zealand).[37]

4.23  It should also be noted that allegations of "secrecy", family courts as a "star chamber" and judicial bias against fathers continue in these jurisdictions despite the fact that, for example, the Federal Family Court of Australia has been open to the press (and indeed the public) for well over 20 years.[38]

4.24  Other jurisdictions have therefore introduced additional methods to communicate directly with the public providing easy access to better and more detailed information about family courts, judicial decision making and complex/controversial cases.


4.25  It is not surprising that many supporters of increased media access and reporting of children cases along with many of those who opposed changes to the rules and Part 2 of the CSF Act are now arguing that the provisions of the Act are largely unworkable.

4.26  Both groups argue that, if implemented, Part 2 of the Act will result in adjournments (while judges determine on a case-by-case basis what information can be reported) - and will increase costs and delay. For a family justice system close to meltdown in the face of substantial reductions in resources, increased applications, and demands for yet further savings as a result of the public spending review, this is likely to prove unbearable - for children and courts.

4.27  The 2010 Act sets out information which, if published, will be deemed "identification" information and thus a breach of confidentiality; it also specifies certain "sensitive personal information" which if published would also be in breach of the Act. Despite the fact that the Labour government did not set out an evidence base and did not consult on this latter provision, if implemented, the Act also allows - all other things being equal - for the restriction on publishing "sensitive personal information" to be lifted at a future date.

4.28  Journalists in turn argue that they are even more unclear about what information could be reported under the Act while editors will not risk limited resources covering cases where they are unclear about what may be published and where media resources may become tied up in applications to resolve this issue. It is argued that in an industry dictated by "24 hour news coverage" and syndicating of stories, and with fewer legal journalists, editors will not commit resources where there is no guaranteed story they would wish to publish.

4.29  Thus in practice, if implemented, Part 2 of the 2010 Act is unlikely to meet the needs of either group - or indeed the public information objectives set out by the previous Government. Notwithstanding the implications for children (see below), in the final analysis it was a rushed, ill-thought out Bill which, in the absence of appearing in the final "wash-up", would have been unlikely to have survived And despite assurances to the contrary, it is highly unlikely to be cost neutral.

4.30  The implications for children lawyers, doctors and others working with highly vulnerable children are even more complex: they have to explain to children and young people that (post April 2009), (a) a reporter might be in court and subject to the judge's agreement, may be permitted to remain, and, (b) what information the reporter should and should not report from a hearing. Child care lawyers and others cannot however guarantee anonymity in any subsequent reporting - nor can they second-guess the outcome of an application by the press to publish certain information "in the public interest".

4.31  Some 22 key children's groups constituting the Interdisciplinary Children's Alliance argued that provisions would not be sufficient to protect the welfare and safety of children. Previously for the most part, professionals were able to reassure children subject to proceedings that only those connected with the case would be in court to hear the evidence. That general position reassured children and enabled most to talk about intimate and painful events concerning maltreatment by a parent,[39] or the impact of protracted parental disputes, and their own wishes and feelings about their future.

4.32  Advocates and clinicians argued that when talking to children deemed able to understand, they have a duty - both ethical and according the rights of children under Article 12 of the UNCRC - to tell them that a reporter may be in court. Practitioners raised concerns about the impact on children's willingness/ability to then disclose/discuss abuse by a parent, and their wishes and feelings. This concern was raised with the MoJ in stakeholder meetings, and in written and oral evidence at Committee stage of the Bill.[40] Clinicians argued that it might be in a child's interests for a doctor to advise a child/young person not to say anything further in an assessment interview in the light of possible press attendance and reporting.


4.33  The above concerns were subsequently substantiated in a study of 51 children and young people most with experience of court proceedings.[41] We found that almost all respondents (79% in the public law sample, 91% in the private law group) were opposed to the decision to permit reporters into children hearings. The reason for this was that they said hearings address issues that are "private"; they concern events that are painful, embarrassing and humiliating for children and an overwhelming majority said this information was not the business of newspapers - or the general public.

4.34  Almost all young people (96%) said once children are told a reporter may be in court they will be unwilling/less willing to talk to a doctor about parental ill-treatment, or the impact of parents' disputes, or their own wishes and feelings.

4.35  Moreover, children and young people said clinicians must inform them about press access to hearings at the start of an assessment interview - and before any substantive issues are addressed. This enables young people to make informed choices about whether or how to proceed; they said any other approach would be dishonest and a betrayal of children's trust.

4.36  These findings indicate substantial problems for the family justice system. First, where children and young people are unwilling/unable to talk about ill-treatment, judges/magistrates may be faced with making difficult and often life changing decisions about a child in the absence of, or with incomplete, "sanitised" or changed evidence from the child, and limited or no information from clinicians.

4.37  Second, findings raise a range of concerns regarding compliance with Article 12 of the UN Convention on the Rights of the Child and General Comment 12.[42]

4.38  With regard to information that children and young people thought might be published, in practice, respondents felt much information about them (their age, location, schools, interests and activities, religion, etc) and the content of cases (the allegations of child maltreatment and failures of parenting) by their very nature would allow for the identification of families in local communities.

4.39  Crucially, young people are unconvinced that formal rules prohibiting publication of identifying information will protect them. They do not trust reporters, they said information would get out, allowing them to be identified, shamed and bullied. Results from discussing a "real" judgment demonstrated how anxious and distressed children are and how concerned about their privacy when abused by a parent or where parents are in a bitter dispute over their care. Most children did not want any information contained in the sample judgment to be reported in newspapers (79% in the public law group and 91% the private law sample).

4.40  With regard to whether any information in the judgment might be helpful to the general public to know, most children (91% in the private law group) said "no" and some were doubtful or indeed cynical of a public education role by newspapers.

4.41  Young people also said judges and magistrates must seek the views of children before deciding whether to admit the press to a hearing. That view - coupled with children's rights to be heard in any judicial and administrative proceedings under Article 12, UNCRC indicates welfare and legal representatives must seek their views in preparation for a hearing.

4.42  Many children objected to parents talking to the press about proceedings (even though children should not be identified in any reporting). Objections were strongest in the private law group (92% objected to this during proceedings, 45% continued to object once cases were concluded - and where they did not, most included conditions. And overall, almost all young people (96%) said where children are capable of expressing an opinion parents should seek their permission before talking to the press.

4.43  Children and young people do not trust the press: they said newspapers sensationalise information, or construct bold headlines that do not reflect the content of cases, and will "cherry pick" information. They mostly doubted newspapers would print a truthful story and doubtful - and some cynical - about any educational function.

4.44  Children feared "exposure"; they are afraid that personal, painful and humiliating information will "get out" and they will be embarrassed, ashamed and bullied at school, in neighbourhoods and communities. They also feared information once reported, would be placed on social networking sites on the Internet where it would remain indefinitely. Fears about exposure are not limited to children in rural and minority ethnic communities. Whatever adults might believe/say, children remain unconvinced about the capacity of law, courts, welfare and legal professionals and indeed politicians protect them.

4.45  Children were also opposed to any naming of experts by newspapers - unless the person to be named agreed. Most children rejected the view that there might be a public interest in doing this, they said there were other ways to achieve this.

4.46  Young people were also strongly opposed to reporters having access to any reports in cases (96% in the private law group). They said this would be a breach of children's trust and privacy.


4.47  The views of children/young people regarding their privacy and implications for their safety, welfare and mental well-being - in their schools, homes and communities (notwithstanding respect for their private and family life under Article 8 of the ECHR) is somewhat different to that articulated by some adults and certain key policy makers in government.

4.48  Findings indicate that in the construction of new rules and legislation regarding media access and reporting in children cases crucial issues about the welfare and rights of children and their concerns about privacy, safety and self esteem - along with the ethnical and practical impact of new provisions on those working with vulnerable children - have been ignored.

4.49  As the research indicates, at the point at which children feel most vulnerable and powerless, it is not surprising to learn that they may, in effect, "vote with their feet", "play safe, and say nothing" in the face of potential media presence. That strategy however exposure them to further abuse; it also places welfare and legal representatives and family court judges and magistrates in an untenable situation.

4.50  In the light of these findings a careful, more detailed, less rushed and proper consultation exercise should be undertaken with time for the testing of real alternative approaches in this field. These should increase accurate information about the work of family courts in general and specific information about how courts handle difficult and controversial issues. This should be in a format that is user friendly and does not expose already vulnerable and often damaged children to further risks, and does not subject the professionals working with children to breaches in ethical codes and children's rights under Article 12 of the UNCRC.

4.51  The implementation of Part 2 of the CSF Act 2010 should be shelved and existing rules determining what can be published should remain for the time being. This is absolutely not an argument to shelve concerns about openness and "transparency". Rather, in the face of some real and unavoidable tensions between the remit of much of the media and the needs of children for privacy, to find alternative avenues to meet this agenda.

4.52  For example, the family court information pilot needs time to produce sufficient anonymised judgments, this to be supported to completion and with the publication of the evaluation report with the expectation that funds will be available for this endeavour to be rolled out nationally. A more focused, indexing of judgments placed on the Baili website from this pilot would enable parties and the general public to explore specific issues by topic area with headings explaining the issues and complaints which judgements seek to address.[43] In additional routine family court open days in all circuits[44] with endeavours to locate and invite local schools, clubs and community groups - along with projects taking the work of family courts into "hard to reach" communities.

4.53  The primary focus with regard to access to and reporting of child cases should remain (a) the protection of children from harmful publicity and (b) to continue to provide an informal atmosphere for hearing evidence so that parties can feel confident about issues of privacy and dignity when discussing private and painful events, and (c) to enable justice to be done where people - and this includes children and young people - might refrain from seeking the help of the court or from fully engaging in the process of seeking a remedy, for fear of publicity.[45] This may necessitate also exploring additional mechanisms (to the appeals system) for addressing allegations of miscarriages of justice in specific cases.

September 2010

24   Brophy J (2006) Care Proceedings under the Children Act 1989: A Research Review, Research Series 5/06, London: MoJ. Back

25   Brophy J, Shade N and Ward K (2008) Integrating Diversity into Paediatric Practice, in Integrating Diversity and Brophy J & Phoenix A (2008) The Mundane and the Manageable: Diversity in the Family Justice System, in Integrating Diversity:(Thorpe LJ & Singer S) Family Law: London. Brophy J (2007); Brophy J Child maltreatment in diverse households: challenges to child care law, theory and practice, in, Meuwese S, Detrick S and Jansen S et al (eds) 100 years of Child Protection. The Netherlands: Wolf Legal Publishers. Back

26   Jessiman P, Keogh P & Brophy J (2009)) Evaluating the Public Law Outline, London, MoJ; Brophy J & Sidaway J (2008) The Public Law Outline in Practice: Stages 1 and 2 in an Initiative Area. London Family Justice Council;  Back

27   Brophy J with Roberts C (2009) Openness and transparency in family courts: - other jurisdictions and messages for reforms in England and Wales, Briefing Paper No 5, Dept. of Social Policy and Social Work, University of Oxford. Back

28   Brophy J (2010) Media access to family courts: views of children and young people. London: Office of the Children's Commissioner for Children - England Back

29   For example, Brophy J (2009) The voice of the child and evidence-based policy, Fam Law, Vol 39:271; Brophy J (2009) The Family Justice System and the Media. Fam Law, Vol 39:1117. Back

30   http://www.bbc.co.uk/iplayer/episode/b00tlczw/Panorama_Please_Dont_Take_Our_Child/ Back

31   Eg Care Matters Partnership Conference: The future of Care Applications, workshop: Media access to family courts: Lessons from other jurisdictions, lessons from children and young people. London, (June) 2010  Back

32   Interdisciplinary Alliance for Children - Parliamentary Brief Paper and Amendments to Part 2 of the CSF Bill (the Alliance consisted of some 22 major organisations concerned with the welfare and rights of children subject to family court proceedings. Back

33   See note 62 above. Back

34   Confidence and Confidentiality: Improving transparency and privacy in family courts (2007a) DCA.  Back

35   Confidence and Confidentiality: Openness in family courts - A New Approach, (2007b) London: DCA. Back

36   For example, feature coverage of the Family Drugs and Alcohol Court Pilot by Frances Gibbs, Times, 26 November 2009; Amelia Hill, The Observer, Sunday, 5 July 2009; Juliet Rix, The Guardian, Saturday 17 May 2008. Back

37   See Brophy with Roberts (2009) note 62 above.  Back

38   See Brophy with Roberts (2009) note 62 above. Back

39   Examples of maltreatment suffered by children is outlined in Brophy J, Jhutti-Johal J and Own C (2003) Significant Harm in Child Protection Litigation in a Multi Cultural Setting (sample is stratified by ethnic group and includes a white British group see chapters 2-4 and tables 4.4 and 4.5).  Back

40   See Hansards, CSF Bill 2009, Public Bills Committee, session 21st January 2010 at 2.30 - oral evidence of Sir Mark Potter (President of the Family Division), DJ Nicholas Crichton, Barbara Esam, NSPCC, Dr J Brophy but note also views of Mr Bob Satchwell, Society of Editors. It was also made in writing by the Royal College of Paediatrics and Child Health. Back

41   Brophy J (2010) - see note 63 above.  Back

42   Paragraph 1 of which provides states shall assure the right of the child to freely express his or her views in all matters affecting him or her according to the child's age and maturity and giving those views due weight, General Comment 12 sets out the conditions necessary for realisation of a child's right to be heard under Article 12). Back

43   So that the website can build up a sample of cases which address specific complaints about the system and decision making through indexing according to issues raised in the judgment (as some other jurisdictions have done - see Brophy with Roberts 2009, note 62 above).  Back

44   Such as those undertaken in certain family proceedings courts in London  Back

45   It is not simply received wisdom that publicity is harmful to children's welfare - it is supported by clinical evidence - about short and long term confidence and self esteem - issues which underscore the successful development of children and young people into active citizens who invest in and support their families, and communities and are able to achieve in education and work environments.  Back

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