WASHINGTON, September 4, 2012 — An underreported debate among foster care advocates and court watchdogs has been quietly brewing across the country. At issue: whether courts that handle foster care cases should be open to the press.
The United States Supreme Court has never considered whether there is a First Amendment right for the press to attend civil child dependency proceedings and so the issue is wide open for debate.
What is this about?
Under discussion is whether child welfare hearings should be open to the press. Currently, most courts are presumptively closed, which means that journalists are barred unless an exception is made by the presiding judge.
Proponents claim that by allowing the media access to the proceedings foster care youth will be better represented and protected.
Opponents caution that open hearings can lead to the “outing” of foster care youth and details of their lives when they are entitled to privacy.
Courts have traditionally sided with those who believe courts should be closed. The prevailing thinking has been that hearings should be closed to protect the privacy of minors. Additionally, many judges and child welfare advocates have stressed the important of keeping courtroom participants small in numbers so not to intimidate or overwhelm the children involved.
Recently, however, proponents of open courts have made some headway and have persuaded some courts to consider loosening requirements on a case-by-case basis.
Some states, like Connecticut, have launched pilot programs to test how open courts might operate and what the outcomes might be. (In this case, after the trail period, Connecticut returned to a system of presumptively closed courts.)
Advocates argue that opening foster care courts will bring much needed transparency to a system that is too often shrouded in mystery and misinformation.
“The current public perception of foster care is too often painted by isolated cases of child death and tragedy. Press access to juvenile dependency proceedings would foment a clearer public understanding of the system’s strengths and shortcomings,” explains Daniel Heimpel, Executive Director of Fostering Media Connections, an organization aimed at engaging journalists to drive public and political opinion on behalf of children in foster care. “This nuanced view will allow for policy and practice based in solutions, not solely reactions to the non-representative headlines that dominate the news cycle today.”
Advocates say the increased attention on child welfare cases will lead to legislative reforms that will improve the lives of children in the foster care system.
Further, advocates argue that open courts will ensure a more dedicated and results-oriented team — from social workers to judges — working on behalf of foster care youth.
While many of the most vociferous opponents of open courts have faded from view in recent years, a few, like Professor William Patton, Professor and Children’s Law Scholar at Whittier Law School, remain opposed.
Patton has written extensively on the subject of open courts, refuting that there is evidence that demonstrates there is a measured benefit to foster care youth when courts are opened.
In fact, he argues, there are cases when individuals have been harmed after judges opened hearings to the press. Specifically, warns that when details such as a juvenile’s sexual orientation or abuse history are made public the result can be devastating to the child, causing further trauma and psychological damage.
“The best system is one that is presumptively closed. Rather than placing the burden on young child abuse victims to prove that they will be harmed by openness, presumptively closed systems allocate the burden of proof on safety upon those seeking access to these hearings where the most intimate and humiliating details of these children’s lives are publicly exposed,” explains Patton.
No individual child should be put at risk in the hope of improving transparency in the system, he argues. The risk of exposure is currently too great and the impact on children’s lives too grave.
Would open courts risk children’s privacy?
This is something both sides of the debate are extremely concerned about. Will the press be able to handle privileged information about children in a responsible way?
Even those who are hopeful about open courts express concerns. “[The media] coverage sure as heck better be ethical and sensitive to children. I want the child welfare system and journalists working together towards that goal,” Heimpel maintains.
To address this concern, advocacy groups have called for the journalism community to adopt a strict code of ethics that will set a national standard.
A laudable goal, acknowledge critics. However, currently no such standards exist.
“No media organization in the United States has a media ethics policy that prohibits the publication of identifying information about all three types of child victims appearing in dependency courts: (1) sexually abused; (2) physically abused; and (3) emotionally abused/neglected,” Patton says. “Therefore, a system that provides the media, as opposed to the general public, presumptive court access still places child victims at an unwarranted risk of being further traumatized either by the fear of publicity or by actual publicity.”
That’s precisely why organizations like Fostering Media Connections are spearheading efforts to establish a journalistic code of ethics for juvenile dependency hearings, which would include strict guidelines precluding the use of identifying information in their stories.
Why is this debate important?
Although this debate may seem like insider baseball with little relevance to the world outside the foster care system, the questions that haunt the current debate are serious.
In the end, whichever way this is decided, there will be a major impact on minors in foster care, the judicial system, journalism and even, potentially, social policy in America.
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