The 'Secret' Family Court: Fact Or Fiction?

Introduction
Act has led to significant financial savings for the government. 8
The process of judging public law cases also involves risk. Sanctioning the
removal of a child from the care of his or her parents and ordering that he
or she be placed for adoption is a Draconian order to make.
Such an order changes the course of the lives of that child and his or her
parents for ever. So far as the child is concerned there is no guarantee that
such changes will necessarily prove to be for the better. Making a care order
involves taking a risk. Equally, ordering the return to his or her parents of
a child who has been removed because of concern about past harm and/or
risk of future harm also involves taking a risk. If the judge’s risk assessment
of the parents is flawed the judge could be returning the child to a situation
in which he or she will be at real risk of harm. When that happens, here,
too, there can very occasionally be tragic consequences.
As I watched the Victoria Derbyshire programmes and listened to the repeated
references to the ‘secret family court’ I reflected on the fact that that
description has been in continuous use throughout the whole of my career
as a family Circuit Judge. It has still not gone away. It continues to thrive.
It continues to shape and colour the public’s view of the Family Court and
to undermine public confidence in the Family Court. It has taken root in
public consciousness.
In the early days when this expression came to be used by the media, the
public was not interested in judges seeking to give reassurance that the family
court sits in private and not in secret. The public was not interested in
abstract concepts of privacy and confidentiality. Encouraged by the media,
the public was concerned – genuinely, and in my opinion understandably,
concerned – that this was not open justice. The public were locked out.
8
See The impact of LASPO on routes to justice (Research Report 118) published by the Equality
and Human Rights Commission in September 2018: https://www.equalityhumanrights.com/
sites/default/files/the-impact-of-laspo-on-routes-to-justice-september-2018.pdf. So serious is the impact
of LASPO that, according to an article in The Sunday Times on 9 February 2020: “The
country’s most senior family judge has urged private law firms to make regular donations to
keep the crisis-hit court system functioning…Sir Andrew McFarlane, President of the Family
Division for England and Wales, wants law firms to fund a charity to provide support for
about 160,000 people clogging up the system by appearing in court without a lawyer. The
charity needs extra donations of at least £1.5m a year.” The headline given to this article
was Judge begs for donations to ease family court crisis. Later in this book, in Chapter 10, I am
critical of the print media for sensationalising headlines and stories about the work of the
Family Court. I do not consider this headline to be sensationalist or open to criticism in
any way. On the contrary, to the shame of those whose responsibility it is to ensure that this
country has a properly funded family justice system that is fit for purpose, this headline is
both accurate and true. It is – or at least it ought to be – a wake-up call.
5