We need new laws to ensure transparency in the family courts (From Solicitors Journal)

From my latest Solicitors Journal column “Family Business”, 17/04/2012.

The family courts process is more transparent but legislation is needed to achieve true openness in public law cases, says Marilyn Stowe.

Exactly what should be made public from Family Division courts has been contested ground for many years now; it is an unfortunate irony that efforts to try to ensure greater transparency have resulted in some distinctly muddy waters. Despite Times journalist Camilla Cavendish’s successful campaign to open up family courts to the press in 2009, the arguments for and against continue. In the meantime, the most vulnerable in our society remain open to miscarriages of justice.

This was brought home to me by Professor Jane Ireland’s recent study ‘Evaluating Expert Witness Psychological Reports: Exploring Quality’ commissioned by the Family Justice Council.  A damning critique of the role of so-called ‘expert’ witnesses in family proceedings, her study analyses the professionals whose words carry power of influence over family law judgements. The figures would be laughable if they weren’t so outrageous: 65 per cent of reports judged to be ‘poor’ or ‘very poor’; a culture of career ‘experts’ that provide cut and paste psychological assessments on people they have never met or spoken to; and 90 per cent of reports authored by non-practicing psychologists aside from their court work. These are people whose ‘insights’ decide the fate of children, 903 of whom were removed from their parents in January alone.

The issue here is the importance of peer review in such submissions. It seems beyond comprehension that the same degree of scrutiny of expert witness afforded in criminal cases is not employed in family law, despite similarly irrevocable decisions. Where there is the chance that rulings might be controversial or involve the vulnerable, there has to be greater openness. We may not like to imagine that experts and as a knock on effect, the judiciary, can get things wrong, but the reality is that they can and they do. I’ve seen it first-hand.

Paediatrician Sir Roy Meadow’s assertion that “there was only a one in 73 million chance of both children having died from natural causes” convicted Cheshire solicitor Sally Clark of the murder of her two infant sons. He was a leader in his field; he knew and worked well with judges and his views were sacrosanct. The loss of her case at appeal resulted in details being all over the news. Despite having no experience of criminal law, I felt something in the evidence didn’t add up and was compelled to lend my time to help. By investigating and approaching the hospital, I was able to unearth a microbiology report that had not been considered as evidence but which cast unquestionable doubt on Meadow’s assertions. Sally Clark was cleared by the Court of Appeal in 2003.

Transparency in family law is a topic that still evokes polarised opinion. At the Staffordshire University Law School’s Annual Family Law Conference last month, I listened to the counter argument; Mavis Maclean was involved as an adviser between politicians determined to see openness, and lawmakers concerned with protecting the parties and the professionals involved. Her concern over violating the human right to respect private family life is appropriate. And in private law cases, I think the parties should always be entitled to anonymity, even in the Court of Appeal where they are currently not. But public law is different.

You would be forgiven for being unaware that the first steps of reform have actually been taken. In a two stage process to reform the current state of affairs, stage one was the Children Schools and Families Act, which became law in 2010 and featured a mollified version of a transparency clause. However, stage two is yet to happen and the law remains frustratingly unclear. While the family courts may now be open to the press, journalists are in limbo and unsure about the legalities of what they can report. The threat of being held in contempt of court acts as a convincing censor, and the ability to challenge expert evidence is vastly reduced if not extinguished. However, human rights also extend to the right to a fair hearing. If expert evidence is unchallenged (as it largely will be on costs grounds alone), and the press aren’t able to examine and report with suitable safeguards, can we be sure the expert is correct and the hearing has been fair?

Mavis Maclean has written on the fact that the road from good idea to good practice is long and hard and there’s no doubt that transparency is a nuanced issue. What is certain is that greater clarity must be legislated for to protect those at risk and, judging by Professor Ireland’s report, it must be done so quickly.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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18 comments

DT - April 27, 2012 at 6:33pm

This is a very interesting post on a very important matter and, as ever, you’ve crucially provide a balanced, 360 degree précis Marilyn.

I think that transparency is absolutely critical in the family courts, and, to be fair, it is improving, although admittedly far too late for some, with dire consequences.

As with many things in life, if people can’t see what’s going on, the perception and reality can be miles apart. I’ve heard almost conspiracy-like theories from clients which just aren’t true. Look at Free Masonry – people have speculated about it’s roots and practices for years; I’m sure the truth is not half as interesting as the speculation!

The vulnerable must always be protected. This is quite often children but not always. I have been on cases (some care, some s8), where details of parents’ pasts (abuse/neglect/mental health problems/alcoholism etc), has come out for the first time in court, and these matters need to be sensitively managed. Having some very delicate personal information put into the public domain will often not be helpful, and after-all, if a party to the proceedings feels they’re on trial, they may (unhelpfully) withdraw from the process.

I also think (care) cases with a corresponding criminal matter are a challenge.  Seeing the different standards of proof and transparency working differently in different courts on essentially the same matter at almost the same time, is interesting but also very frustrating.

Sometimes, reporting restrictions are strangulating. The press may sensationalise some stories, but, as you rightly point out, they have another important role – to test the evidence. 

All-in-all, I am in favour of greater transparency, and for the press to “responsibly” report and challenge.  Perhaps following Leveson, we can revisit this matter. 

I do think that there are indeed ways and means of the press reporting, whilst still protecting the vulnerable. I think, like a lot of things in life, there needs to be compromise. There can be such things as name changes, redacted information made available, home, sibling and school details banned; I do think it’s workable.

I am vehemently against ‘career experts and the cut & paste brigade’ who charge phenomenal sums (footed by the beleaguered Legal Aid budget); however, while I think we need to be able to question/test their evidence, I think it’s important not to ‘scare’ experts away from court. I’m married* to a Doctor who is quite capable of being an expert (for some types of matters), but wouldn’t dream of volunteering for such because, like many clinicians, believes it’s more trouble than it’s worth.

Perhaps if one good thing can come out of the LIPs debacle, (in some cases), the general public will have a greater grasp of what goes on and why because they will have to get up to speed. That’s not to say I’m in favour of people having to represent themselves at all because I am not, I’m just trying to draw a good from a bad! I haven’t convinced myself of this one yet, so I’m open to opposing views!

DT

*You see, there’s no suitable adjective which succinctly conveys that I’m in a civil partnership!

Bruno D'Itri - December 29, 2012 at 6:50am

Mr DT is “vehemently against career experts who charge phenomenal sums”. I couldn’t agree more – the legal fees in my own divorce amounted to £100,000.

Marilyn says: “We may not like to imagine that experts and as a knock on effect, the judiciary, can get things wrong, but the reality is that they can and they do. I’ve seen it first-hand.”

Similarly, we may not like to imagine that the judiciary can get things wrong. However, they can: I have seen it first-hand at the Court of Appeal. Errare humanum est.

As a consequence, I wholeheartedly agree with Marilyn’s call for greater transparency in family law judgments.

If ALL of the facts and evidence in a particular case are made public – and not simply those which a judge selects to appear in his/her judgment – the legal community will be able to peer review a judge’s reasoning.

Scientists, for example, are obliged to publish evidence which fails to support the efficacy of a new drug, as well as evidence which supports it.

Individual experts (medical or judicial) may not welcome such intense scrutiny, but it can only lead to an improvement in standards.

Bruno D’Itri

DT - December 29, 2012 at 1:28pm

Good afternoon Bruno

You make some interesting points, but totally unfettered transparency is just not possible and with good reason and I’ve touched upon it above in my last comment.

Childrens’ details must not be published and I think that is right. Also, if one thinks about a Care case, it would be wholly inappropriate to publish some of the detail disclosed in these matters. Some of it is so vile, it would “feed” sex offenders. This information cannot be allowed to fall into the wrong hands.

I appreciate that there is merit in the argument for having info. tested but this cannot be done at the expense of children; they must come first.

While I have real concerns about the family courts being totally closed, access to them is limited with good reason.

Scientist do not publish all of their information including the names of those who participated in their clinical trials, that is kept confidential, and one can see why. This is therefore similar.

DT

Bruno D'Itri - December 29, 2012 at 10:48pm

Hello DT

Thank you for your response.

It is quite obvious – to me, at least – that the anonymity of the parties must be maintained. Scientists would never publish the names of the participants in drug trials. But they DO publish data which may not support the efficacy of a new drug. Transparency and unbiased objectivity are the universal principles of science.

In complete contrast, a judge will selectively include data in his judgment which supports his views. He is at complete liberty to leave out data which does not support his views.
I have personal experience of this less than admirable activity.

How can judicial reasoning be peer reviewed if the ‘peers’ doing the reviewing are not permitted to have full access to ALL of the relevant data?

We are left having to have faith in single humans, who are entirely capable of making errors (I assume that all readers of this post accept my premise that judges, in common with all other humans, make errors).

I find it very odd indeed that lawyers are (rightly) keen to hold expert scientists to full account, but that they are not willing to extend the same dgree of scutiny to their own profession.

Bruno D’Itri

DT - December 30, 2012 at 5:59pm

Good evening Bruno

I can appreciate what you’re saying, but law is not a science; you are not comparing like with like.

The law is a set of rules to be applied to an infinite number of different scenarios. Legal outcomes , (especially in childrens’ matters) cannot be plotted on graphs or illustrated by way of a pie chart. Science deals with absolutes, percentages and statistical significance; this cannot be said of the law in the same way whatsoever.

What’s more, science and drug trials are funded by very rich multi-nationals; they have armies of people to collate data – the logistics of this happening in the courts is just not viable, practicable or at all possible. I also beg to differ with regards to the transparency of some clinical trials; as it has come to light in recent years that some trial data has not always been produced.

I cannot comment on your own personal case nor would I wish too, however, I can honestly say having sat in on cases for their entirety and then having read the judgement on its release, I cannot say that I share your experience.

Also you must remember that not everything can or indeed needs to go into a judgement; something which is central to you (for very good reasons) may be peripheral to the decision making process however, as a parent, one is very much swallowed up by events, and limited exposure to how cases are handled by the courts is not going to provide anybody with a basis to understand things especially those which aren’t in their favour.

Now, that’s not to say that judges always get things right but they are human and it’s impossible to get 100% accuracy, 100% of the time. However, all-in-all, I am in favour of more transparency where possible.

I think it’s very difficult for experts who take the stand and many choose not to as reputations are fragile things. Scientific experts are held to account but I think it’s easier (not easy!) as I have outlined above when one is dealing with science.

Remember, if something goes to appeal, a higher court is reviewing it. They don’t just look at the judgement; the legal team will present a raft of data.

I appreciate that you may not agree with what I have said but if any of it has helped to explain, then my comments haven’t gone to waste. I am sympathetic to the hurt and frustration which a parent must feel, I have seen it.

DT

Bruno D'Itri - December 31, 2012 at 10:31am

Hi DT
Parents will, no doubt, be comforted by your empathy and sympathy, which I am sure is offered in good faith.
With regards to the scientific process of logic, evidence, transparency and peer review, you are right to point out that there are occasions when, perhaps for vested interests, the process is not entirely adhered to. Read Ben Goldacre’s Bad Science for examples. However, I don’t think it helps the debate to focus on these examples of non-compliance. The process is wholly a good one.
The process of law, as you seem to acknowledge, is more prone to error (relying as it does on one human) and is not subject to peer review (due to the absence of data which that human has chosen to omit).
To paraphrase a famous American Supreme Court judge, transparency is the best disinfectant.
For example, in the well-publicised cases of Re D and Re W – concerning relocation law, Payne v Payne – the position taken by the judiciary was illogical and counter to the welfare of children. In short, in Re D the judiciary conceded that child welfare was potentially ill-served by Payne, but a year later, in Re W, inexplicably reversed its view by stating that Payne must be applied. It was only later that Payne was finally reviewed in Re K. Such procrastination and confused thinking on a matter of child welfare would not have been possible if the matter related to a medicine. At the first hint of any potential harm, scientists from around the world would spring into immediate action, testing ALL of the evidence to exhaustion.
Transparency and peer review are the keys to improving legal principles, and ensuring that they correctly reflect current societal norms and are in line with current scientific psychological evidence. It appears that the general scientific psychological evidence and rational arguments presented in Re D – which caused the judiciary to question Payne – was kept hidden by the judiciary.
If the justification for this is that the legal process does not permit such transparency, then the legal process needs to change.
Bruno D’Itri

DT - December 31, 2012 at 5:23pm

Hi Bruno

OK – so how would it work in reality? What would the logistics look like? Who would pay for it? What safeguards would be implemented? How would children be protected?

I am open to new ways of thinking and working.

DT

Marilyn Stowe - December 31, 2012 at 8:55pm

Hi DT
Very happy New Year to you.
Best wishes
Marilyn

Bruno D'Itri - December 31, 2012 at 8:10pm

Hi DT

Let us take one area within family law, with which I am familiar: that of Leave to Remove.

Over the past 10 years, there has been a great deal of criticism of Payne v Payne, from both within and without the legal fraternity.

After reserving his judgment in Re D (Children) [2010] EWCA Civ 50, and “carefully considering” the legal arguments and scientific psychological evidence presented, Sir Nicholas Wall concluded that there was a powerful case for a review of Payne because there existed a risk that child welfare was not being served. Whilst he refused the litigant-in-person father permission to appeal, he nevertheless decided to make his judgment public in order to inform the legal community of his serious concerns.
As he had refused to grant permission to appeal in that particular case, the legal system did not permit any review of Payne. The judiciary’s hands were tied by the legal process. A suitable case had to be found. Months and years passed. No ‘suitable’case materialised.
As a direct consequence of this legal system, the fate of hundreds of children continued to be decided by the principles of Payne. Many of these children would have been benefitting from a shared care arrangement with both parents, but would have been removed overseas regardless.
In the excellent judgment of Re AR, the forward-thinking High Court judge , Sir Nicholas Mostyn stated that Payne v Payne required urgent review in order to bring current scientific evidence into full account.
Again, nothing happened.
In Re W, Sir Nicholas Wall resiled from his “carefully considered” reserved written judgement of Re D, declared that too much attention had been paid to it, and confirmed that unless Parliament amended the Children Act, or unless the Supreme Court decided otherwise, Payne v Payne must be followed. One human deciding the fate of hundreds of children.
In Re K, almost 2 years after Re D, the Court of Appeal itself ‘reviewed’ Payne. Of course, their hands were still tied and legal process still forbade the Court of Appeal to review Payne, so it was a very inventive ‘review’ by the back door!

So, to your question, Mr DT. What should have happened?

In my view, when there is a rational, evidence-based, intelligent and widespread challenge (especially from within the legal profession) to any legal principle – as there was in Payne – the senior judiciary should immediately convene an inquiry, sit around a table and thrashing it out. When the welfare of our children is at stake, no time must be lost in ensuring that their best interests are being served. Let them spend a few weeks discussing the matter in detail. Let them take evidence from experts. Let Mostyn J and other pro-reformers present their arguments. Let Government officials present their cases.

When this extensive inquiry is complete, let a committee of the best and most experienced judicial minds in the country revise the principles, if necessary.

What would it cost? Relatively little, when compared to the harm which could otherise be inflicted upon hundreds of children and parents. I’m sure many, if not most, of the judges and experts would give of their time freely.

How’s that for a solution? Where there is a will, there is always a way.

Bruno D’Itri

Marilyn Stowe - December 31, 2012 at 8:55pm

Hi Bruno
Very happy New year to you.
Best wishes
Marilyn

Bruno D'Itri - December 31, 2012 at 9:12pm

Hello Marilyn and DT
Best wishes to you both for the New Year.
I’ve been very fortunate indeed to have spent this past weekend in Slovakia with my beautiful children.
I pray for all parents and children who find themselves separated from each other at this time of year.
Bruno

Marilyn Stowe - December 31, 2012 at 9:13pm

Bruno
Lovely message. I agree with you but at all times.
Marilyn

DT - January 2, 2013 at 11:00pm

Evening Bruno

Happy New Year to you too.

Apologies for the delay.

First things first. I’m so pleased that you got to spend quality time with your children; I really am.

You make some interesting points and they’ve given me food for thought.

I can appreciate where you’re coming from, but I think your suggestion would only service the most unusual of situations (such as you detail), however such circumstances are not common place. If we had every decision being poured over it would cripple the system. We must have trust in our judiciary. This is not to say that I don’t think that there should be more transparency because I think where possible this should be so.

Decisions are still open to scrutiny if they are appealed which I think is the best route.

Best wishes for 2013 and I hope that you get to spend more quality time with your children; you’re obviously a devoted dad and that’s heart-warming!

DT

DT - January 2, 2013 at 11:04pm

Happy New Year to you too Marilyn!

All the very best to you and your team for 2013 and thank you for putting so much hard work into the blog; it clearly means a lot to a lot of people.

DT

Bruno D'Itri - January 3, 2013 at 7:23pm

Thank you for your very kind comments, DT.

I echo your praise for Marilyn’s splendid blog. It provides an invaluable forum for free and candid legal discussion. Malilyn deserves particular praise for allowing the publication of posts which are far from supportive of the judiciary and the legal system.

It is through such frank discussion that received wisdom can be challenged and improved upon. I have no doubt that persuasive discussion regarding Relocation law helped, in some small way, to achieve the ground-breaking judgment of Re K.

Best wishes
Bruno D’Itri

Yvie - January 3, 2013 at 9:10pm

I agree Bruni that Marilyn deserves praise for allowing some of the posts which are published whilst always remaining polite and responsive. Many are indeed far from supportive of the judiciary and the legal system. However, I think it is right and just that posters are able to express their true opinions, mostly formed as the result of their experiences, and I think the legal profession would do well to note some of the comments that are made.

As with every profession there are good and bad and from my son’s experience, he was grateful to his solicitor and both barristers. The solicitor from the other side was extremely aggressive and confrontational. Why I wonder? She wasn’t dealing with Jack the Ripper, just a dad who wanted some extra time with this children.

Bruno D'Itri - January 4, 2013 at 1:54pm

Hi Yvie

It sounds like your son had good solicitors and barristers. Nevertheless, I am sure their services didn’t come cheap! Isn’t it so very wrong and shameful that a good and honest father has to part with a small fortune simply in order to be permitted access to his own children?

An effective legal presumption of Shared Parenting, post separation/divorce, would make it very explicit to the judiciary and to the lawyers that the starting point is meaningful access for both parents (which can be restricted in cases where there is evidence of harm to the children).

I can think of no credible reason as to why the Law Society is so vehemently against Shared Parenting legislation other than their wish for the ‘gravy train’ to continue.
I am open to persuasion.

The extreme aggresiveness of your son’s ex-partner’s solicitor is perhaps symptomatic of the current ‘adversarial’ family legal system. Other national jurisdictions employ a ‘collaborative’ system which reduces unnecessary litigation, stress, dirt throwing and making of false or exaggerated allegations. In a 2009 hearing at the Court of Appeal, I suggested to Sir Nicholas Wall that his adversarial system required overhauling.

Best wishes
Bruno D’Itri

Yvie - January 4, 2013 at 4:15pm

Hi Bruno – yes it was a very costly experience but one which could not be avoided. What started out in good faith as an attempt to negotiate an extension of the shared residence to 50/50 quickly turned into an ex parte application by the other side with all the usual false accusations these applications entail. The solicitor from hell referred my ex.dil to a charity for abused women and children, presumably in an attempt to quality for free legal aid. Whatever, the reason, I understand that following investigation by this charity, there were no welfare concerns. The children apparently were interviewed at school unknownst to my son. Such tactics are diabolical but are apparently par for the course for some solicitors.

As my son is a very loving and caring father, I should imagine the background to all this was money. Despite the fact that my son earns much less than his ex. it was never likely that his ex. would agree to share benefits as well as expenses. That she was prepared to malign the children’s father for monetary gain, probably is a good indicator of why the marriage failed.

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