Why its time to open up the Family Courts

On Saturday 3rd November I attended a workshop at UWE organised by journalist Louise Tickle as part of her project to investigate opening up the family courts and recalibrate the balance between privacy and scrutiny. Disclaimer: both Louise and I are members of  The Transparency Project, so our interest in and commitment to further openness of the family courts is obvious and I make no secret of my bias in favour of this happening as soon as possible.

I have undergone an evolution in my views since 2011, when I first took up any kind of campaigning role. Whilst I initially parroted the phrase ‘private not secret’ and worried about the impact on children of increased scrutiny, my exposure over the years to obvious examples of where the system was failing has changed my views.

This blog post is an attempt to outline what I think are the most important reasons for opening up the family courts and what we can do about the real and serious fears of many that we are simply encouraging a salacious and irresponsible Press to make free with a family’s misery.

Have a look at the Twitter hashtag #openfamilycourt for some contemporaneous tweeting about what happened at the workshop.

Justice must be seen to be done

This is the simple, basic and big one.  As David Burrows has pointed out (see ‘Further Reading’ below), family lawyers look through the wrong end of the telescope, assuming that family cases must be held in private from the outset when in fact it is the ‘open court principle’ that is the default position.  Issues of permissible privacy and statutory limitation, especially regarding children can be discussed from that starting point.

As far as is possible we should strive to make sure that the public can access the courts and understand the system of justice that operates in their name.  It is the fundamental principle underpinning our entire system of justice and for too long the family court system has been allowed to develop along tracks which lead it far away.


Lack of scrutiny can have terrible consequences.

It is very clear to me – not just from this workshop, but from attempts to engage with a wide range of people over many years – that most of us are just stuck on broadcast when it comes to issues that cause us particular pain. Our view of the situation narrows to encompass only that which has hurt us. This is entirely understandable and I don’t criticise anyone for it unless and until they demonstrate to me that their minds are closed to any possibility that their views may sensibly be challenged.

This single issue focus is often a massive block to any sensible discussion about how we move forward and it is made far worse by the obstacles the current family justice system puts in the way of understanding and scrutiny. I don’t pretend that opening the courts would be a miracle cure for the single issue campaigner – but it would allow me more authority when I say that their perception or their understanding is wrong; THIS is what happened.

I have often wondered why the lawyers are so absent from the parents’ narratives on social media. I am now beginning to understand exactly why. What was telling from many of the parents at the workshop was that the lack of public scrutiny meant that no one really understood the system they were entering, they felt powerless to engage with or even challenge their own lawyer and the power imbalance was thus magnified.  A system of parent advocates could be a way forward. 


Lack of scrutiny allows stale cliche to become unchallenged truth

There are stock phrases and belief systems that influence the family justice system. Many – in my view – are based on imperfect understanding of existing research, wishful thinking or used as a quick get away from any attempt to actually think and worry about a situation that may actually be incapable of resolution, so lets just get rid of it quickly. Lack of scrutiny or outside challenge means they have been allowed to harden over the years into inescapable ‘truth’.

We are doing this in the child’s best interests, which are paramount.

The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community?

Children in my cases roughly fall into two camps. They are very young and they can’t speak. We thus find their ‘wishes and feelings’ reported as ‘If Baby X could speak I am sure he would say he would like a warm loving home!’. Or they are frightened and angry teenagers who are desperate for an adult to take control and keep them safe, but find instead that the adults tip toe around them ‘respecting’ their autonomy – until of course the teenager says or does something the adult doesn’t like, in which case all that Gillick competence dries up and blows away.

I am fed up of being involved in cases where children are separately represented but who won’t meet with their lawyers and give instructions. Not only is this a massive drain on the public purse but it also means we aren’t listening to what these children are telling us loud and clear. Be the adult. Make decisions to keep me safe.  There is a limit to the extent that children’s views can inform us of their best interests.  They lack perspective and understanding about how their choices today can impact their lives down the line. And most of them, on some level, understand that – and crave an adult who cares enough to take that burden of responsibility away.

What is in a ‘child’s best interests’ is then perhaps more accurately rendered as ‘what do I the adult, with my preconceptions, bias, or dangerously high workload, think I can get away with recommending on the basis that its in the child’s best interests?’

Even more perniciously, is the fact that a child’s ‘best interests’ has become narrowed to seeing that child entire and alone in the universe – divorced from family, friends, community etc. The fact that it might be in a the child’s long term best interests to remain links with his family is overshadowed by the immediate ‘best interests’ to be removed from a potentially harmful situation. We see this in the cry of the social worker ‘I am not here for you! I am here for YOUR CHILD’. We see this in the words of the court – Lord Kerr in B (A Child) [2009]

All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s best interests. This is the paramount consideration. It is only as a contributor to the child’s welfare that parenthood assumes any significance.In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.

i think this is wrong, is going too far, is using section 1 of the CA as a vehicle to drive us far away from what is actually in the best interests of children – to have a safe, permanent home and good relationships with those who love them and who share their identity. Children are not born as a blank slate to be easily picked up and dropped into a new adopted family.

I could be entirely wrong about all of this. But we are not able to talk about it, openly and honestly.  It is worth noting that all those at the workshop echoed the concerns expressed by the (now) President of the Family Division in 2017 – that there is no feedback loop in the system. Judges aren’t routinely told about outcomes for children. Greater scrutiny and openness can only improve this dire state of affairs.


But what about the risks to children of increased openness?

I accept that this is a real and serious fear and was certainly recognised by those at the workshop. What I don’t accept however is that debate stops at mere recitation of this risk. If reliance is placed on any assumption that open family courts will harm children then I am going to need to see a lot more research that goes beyond a small and self selecting group. The 2014 report from NYAS/ALC involved only 11 children, for example. Earlier research in 2010 asked only 51 children.

I am going to demand actual analysis of the harm that will befall a child if family proceedings are reported but the name of the child is kept out of it.

It seems to me that the reality is that those in the child’s locality will already be well aware that there have been some sort of legal proceedings; those outside the child’s locality won’t care. So long as the child’s name is kept out of it, so no digital footprint is created that might lead to unpleasant shocks in years to come, what actually is the harm that is caused? If the only harm that is identified is some degree of embarrassment, can that always and automatically be enough to over turn the fundamental principle of open justice?

Maybe I am wrong about this too. But whatever your interpretation of current research, there is never any excuse for Judges and lawyers then to fail to apply the relevant law and to carry out the necessary balancing act between Articles 8 and 10. The recent difficulties faced by Louise Tickle in attempting to persuade a Judge to relax a reporting restrictions order is a clear example of this.



So what do I think the next steps should be? If my pious arguments about legal principle and open justice don’t move you, maybe this will. The practical reality is – now that every one is a micro publisher, with an audience of potentially millions around the world – that the genie is already out of the bottle with regard to information circulating on social media and we either take control of this or we let it drown us. What do I think the next steps should be?

  • Louise continues with her investigations
  • Some one commissions fresh research into the likely impact of open courts on children, with a sample size greater than 11.
  • Proper analysis and investigation of what other jurisidictions are doing and how they protect children – see article below in Further Reading where I set out what is being done in some US states
  • Proper backing and funding to a system for parent advocates – to help parents bridge the gap of understanding and enable them to engage better with their lawyers.
  • A form of accreditation for journalists who wish to report on family cases so we reduce the risk of the current salacious and irresponsible ‘cherry picking’ only the ‘sexy’ information to report,  which causes such justifiable distrust in journalism as a profession.


Further Reading

The recent debate about opening up the Family Courts Sarah Phillimore December 2014 (includes discussion of what happens in some US States).

Transparency: What can I talk about? Who can I talk to? Sarah Phillimore 2014

Family proceedings: ‘the open court principle’ David Burrows December 2014

Opening up a closed system; the second Bridget Lindley Memorial Lecture Louise Tickle March 2018

Legal Blogging: a dry run in the Court of Protection Lucy Reed Pink Tape August 2018

7 thoughts on “Why its time to open up the Family Courts

  1. Angelo Granda

    A Parent’s View.

    I suggest that you seek a professional witness from the NUJ to advise the Court about accreditation. My opinion is that it is not acceptable for the political authorities or a state’s judiciary to refuse accreditation to any member of a FREE PRESS or to control what is written. It may be in dictatorships but not in any democratic country. If a judge has any complaints about reporting, then the correct course is a complaint to the Press Complaints Commission or similar body.

    It is ironic that the Authorities might be unhappy with ‘salacious and irresponsible cherry-picking only the ‘sexy’ information to report’. This is exactly what the CP professionals are guilty of and how they distort justice. Those tactics should never be employed when giving evidence under oath but outside court let the reporters write what they like. Good on them.The Court’s need opening up.

    1. Sarah Phillimore Post author

      The press are already entirely censored from writing anything much about family cases! I am suggesting a scheme of accreditation might speed up the process of allowing them to report.

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  3. Angelo Granda

    QUOTE : The most stale and dangerous of them all. It needs unpicking. First how do we find out what is in the child’s best interests and what does ‘paramountcy’ actually mean in the context of the family and wider community? : UNQUOTE

    By my understanding of the Children Act, decisions and care-plans have to be made in the paramount interests of a child’s welfare. There is a major difference between that and what CP professionals or anybody else may calculate is a child’s best interests.
    It may be in a child’s best interests not to have been born, what then ? Put a bullet through their heart as happens in many authoritarian states abroad?
    It is in children’s paramount welfare interests to remain with natural family unless absolutely nothing else will do. Their best interests do not trump those and families should never ever be permanently liquidated on best-interests grounds. It is inhuman to take children simply because their parents lack material wealth , a nice home, are not politically correct , are the wrong religion, or if the kids are felt to be at risk as a result of the care being given to them not being thought reasonable ;if the care is substandard then the family should be supported and brought up to standard. That is in the children’s paramount welfare interests.
    Do professionals understand the difference between the two terms? I don’t think so! Of course, many children might be better off if adopted or fostered but it is immensely damaging to them emotionally and degrading.

  4. Angelo Granda

    The crowd funder is nowhere near target.
    Why not reconsider a CPR donate button to finance test-cases such as this appeal in future,pay for site costs and help subsidise the annual conference?
    Regular giving by site users will soon add up over a year or two.

  5. Angelo Granda

    A Parent’s View

    The Family Courts and the Public.

    The seemingly total lack of rigid rules and procedure within the Family Courts coupled with the scandalous and abusive conditions ,personal attacks of all extremes from sexual assault to exploitation for the financial gain of carers to which ‘rescued children’ have to endure in institutional care throughout the country must COMPEL the judiciary to prise open the closed doors of the child-protection system .We cannot go on as we are. Children should be entitled to the same civil rights as all citizens and that includes due legal process and humane treatment.
    We cannot allow the Authorities to use their victim’s legal status as minors to impose most of these insults upon them AT ALL but even those sanctions we may feel right within a civilised society for their protection should not be forced upon targeted families without a fair and just process proportionate to them. Justice must be seen to be done and such draconian orders as family liquidation must NEVER be passed in secret.

    The human rights of these child victims are non-existent in the current state-of-affairs ,in my opinion .This is because the ( suspect) c.p. system and the Family Courts clutch tightly and effectively to the label of a civil proceeding where there is no suggestion of punishment, and the Court’s role of child saviour is less vulnerable to attack than in a normal Public Law situation.

    We have to face reality.
    1.The dreary charade of this system is acted out in cases of ALLEGED parental neglect and abuse of their dependent children .We have a civil court trying alleged criminal facts and matters.
    2. Even when facts and real evidence prove allegations untrue, the Family Court is happy to rely on hearsay evidence and discount the real evidence. This is said to be justified, as is all harm the children are subjected to in care because it is felt to be ‘in their best interests’. It is thought that rightly or WRONGLY , because worries have been roused in the first place this justifies a Judge to make decisions at his discretion.
    3. Notwithstanding the fact that such an approach is one which does not exist in any normal court, to my knowledge, Judges are in a position of great power and thus prone to make irrational decisions.
    4.The Court’s rulings rely heavily on a belief that the L.A’s interest in dependent children is of such a benevolent and humane nature that it overcomes all normal civil rights and objections. Thus ‘help’ is imposed against the will of vulnerable children and parents targeted by LA’s.
    5.Children ( especially autistic and special needs) are often warehoused and ‘placed’ in facilities which range from mediocre to deplorable.They are neglected and LAC procedures ignored often. It is impossible to monitor outcomes.
    6. The usual constraints placed upon the Authorities and the rules,limitations and safeguards are not available to these children . They can be held in custody in ‘facilities’ until 18 or sometimes for life .
    7. All of this happens outside the Public domain.
    6. As long as the civil /criminal label game is played and sanctions imposed upon children in the name of HELP AND ‘BEST INTERESTS’, in my opinion, little fundamental change will occur but open courts will be a good start which is long overdue. For one to suffer family liquidation and to be placed in protective custody for life not because one has suffered harm but because one is adjudged by officials to be at risk of harm is unacceptable .

  6. Angelo Granda

    I hope this is a timely contribution; it is a reproduction of a parent’s view made briefly in a comment a year or two ago:-

    We know the rationale behind the Court’s rules but is one of the side-effects ( planned or unplanned) that Local Authorities can make false allegations of neglect, abuse and trauma in Court documents without any come-back? Thus it cannot really be said that such rules protect children but the opposite. To my mind when LA’s issue false documents and assessments of any kind under oath to be distributed among other professionals they should fully open to the public thus subject to the same level of public censure as the press etc. Thus Public Law threshold documents and all others including court applications and core-assessments should be published in the children’s best interests. It is mere speculation that families will be harmed by having alleged dirty laundry made public. It is a fact that there must be strong safeguards against false allegations, misrepresentations and perjury because they cause immense harm and degradation. We should really get our priorities right and cease pandering to the Authorities,in my opinion.

    I hope that the views of one or two parents and children will be put to the Court during the hearing tomorrow.Even if they have no effect on the decision made, they will remain quite definitely on the Court record and who knows , the Judge may take the time to mention them in judgment and give reasons for discounting them.

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