Senior family judge highlights a “pressing need” for radical change in the courts

Barristers' wigsThere is a “pressing need for radical changes” in the family court system, Britain’s most senior family law judge has declared.

Setting out his reasons for issuing an reporting restriction in the case of ‘P’, the child born to an Italian woman who was sectioned while visiting the UK, Sir James Munby said widespread media coverage had frequently been inaccurate and “tendentious”. The child was subsequently taken into foster care.

Essex County Council, the local authority involved in the case, had applied for a reporting restriction order, and last week the President of the Family Division  granted an injunction prohibiting publication of any information that could lead to identification of the child or her carers.

In the newly published judgement, the President discussed the balance to be struck between the competing interests of the public, the mother involved in the case and the baby P.

The public, he noted, has “an interest in knowing and discussing what has been done in this case…given the circumstances of the case and the extreme gravity of the issues which here confronted the courts – whether to order an involuntary caesarean section and whether to place a child for adoption despite the protests of the mother.”

He added: “..it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.”

He also acknowledged that “…the mother has an equally obvious and compelling claim to be allowed to tell her story to the world. I repeat what I have on previous occasions…about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others.”

To deny the mother the right to speak out would, said the President, “be an affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.”

Strong words indeed.

Nevertheless, the child had “has an equally compelling claim to privacy and anonymity.”

Therefore, he ordered, the mother was free to identify herself (using her maiden rather than married surname) and speak to the media, if she wished to do so.

“There are…the most obvious and compelling reasons why, in this case, there should be no stifling of the widest possible public discussion of what has happened nor any stifling of the mother if she wishes to speak out.”

Sir James noted that when media coverage of the case first broke, “none of the relevant information was in the public domain in this country.”

He asked: “How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?”

He returned to a theme he has previously raised on more than one occasion, the issue of transparency in the family courts.

“This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published.”

At the heart of this case lay the interests of the mother and child – the family concerned. These proceedings were intended to protect the interests of the mother via the Court of Protection and the child via the care proceedings. The point and focus was not secrecy but respect for the parties.

No one could have foreseen the inaccurate press uproar. Openness is a fine principle but this is an extraordinary case and it’s been very deftly handled by the President. The balance he has adopted hits the mark.

Photo by ASC Shakespeare Camp 2013 via Flickr under a Creative Commons licence

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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1 comment

Maggie Tuttle - December 18, 2013 at 12:50pm

I have written to Government asking what of the gagging orders already on families, no reply this question needs to be addressed along with change to the familiy courts and untill such time changes are made then no child in the UK will be safe. The families who have been gagged need their voices returned to help the silent witnesses their children taken by the state
Maggie Tuttle.

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