Open justice via media: 'Matter of principle and pragmatism'

The compelling need for transparency in the family justice system is a matter of both principle and pragmatism, says a top U.K. judge. Photo: Society of Editors (U.K.)

U.K., November 23, 2013 — American judges, who preside over a secretive, largely broken and biased family justice system that fails to meet child protection standards, might look to the U.K. for inspiration.

One of Britain’s most senior judges is making ground-breaking decisions in a bid to tackle similar, systemic problems. Sir James Munby, president of the Court of Protection and the Family Division of the High Court of England and Wales has adopted a shake-up and clean-up approach, saying the “culture of secrecy” that erodes justice has to change.

At a November 11 2013 London conference for the Society of Editors, Sir James challenged the media  to shine “forensic sunlight” into failing family courts. He emphasized that unrestricted journalism and public debate are essential to a healthy functioning democracy. He has said no matter how uncomfortable for judges, attorneys or social services, under the “very clear” principle of open justice, journalists must have access to case information to enable justice systems to be held to account. His only proviso: Journalists must protect the identities of vulnerable children, still at risk.

In the U.S., when parents complain of lack of due process, affronts to their civil rights, bias and incompetence in courts, they risk gag orders, loss of parental rights, and having their case files sealed. The media are not invited into U.S. family courts.

Sir James drew particular attention to adoption scams and judges’ decisions to remove children from their parents. He emphasised that decisions taken in family courts can affect parents for upwards of 60 or 70 years, and children for upwards of 80 or even 90 years. Yet, they are often enacted in complete secrecy, sometimes under the misguided pretext of protecting the children involved.

He said, “Orders of the kind of which family judges are typically invited to make are amongst the most drastic any judge in any jurisdiction is ever empowered to make.

“Human justice is inevitably fallible. We must have the humility to recognize public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.”

Sir James has previously issued stark warnings to British social workers who ignore court orders and take children from parents without good reason. He has called it “deplorable” that parents are treated in this way. He has said that social workers who intentionally, or through incompetence, fail to be transparent about their actions could face jail sentences in future.

Sir James’ refreshing approach comes after a raft of high-profile disasters shocked the British public. In Bradford, four-year-old Hamzah Khan lay dead in his cot for two years despite numerous alerts to social services, and two-year old Keanu Williams of Birmingham was beaten to death by his mother in 2011 after social services missed cues to save him. His serious case review was the 23rd of its type in Birmingham since the review process was initiated in 2006.

The horror of these deaths received mainstream media coverage in the U.K., revealing systemic failures reminiscent of Los Angeles DCFS’s neglect of Gabriel Fernandez and the many hundreds of other child deaths that occur annually in the U.S. under social services’ watch.

As a consequence of media coverage in the U.K., patterns of widespread failure became apparent and moves toward greater transparency and remedial action were initiated.

Although local response to Los Angeles DCFS’s failure has been strong, it has caused barely a ripple of public interest in the U.S. beyond close Facebook circles and isolated blogs. This is in contrast to the U.K., where the question of what lies behind multiple child deaths and what should be done about is a national issue. In the U.S., national, mainstream media generally approach the issue of child abuse and systemic failure in family law courts and social services with extreme caution.

While American journalists have looked away, scores of children have been tortured, neglected, trafficked or abused to death. Around the country, social media buzzes with claims that large numbers of protective parents have been criminalized by family courts, and abusive parents rewarded with custody or unsupervised visitation. Rarely is this contentious and troubling issue brought to open public debate through the media.

Sir James’ timely proposals in Britain are first, to invite in the media, whether serious investigative journalist or tabloid scandal monger. All are welcome and may practise without fear of editorial censorship from judges, no matter how distasteful or colourful the language.

Second, he suggests that the government use existing legal frameworks to make immediate improvements.

The last step, which may take years, is to instigate legislative change.

Sir James was clear that journalism has to be at the core of any process to expose errors and improve the delivery of family justice. He reminded editors that freedom of speech is the “lifeblood of democracy,” and the remedy for failing justice is more speech, not enforced silence.

“The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism.

“It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public…

“The courts need the disinfectant power of media exposure.”

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Clare O'Toole

Clare O'Toole is a journalist who has written for several Australian publications, including Times of the West and Freemantle Community Radio.  With an MA in Journalism, O'Toole seeks to uncover injustice in the family courts and what happens when families breakdown. 

Contact Clare O'Toole


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