Transparency in the Family Courts: Publicity and Privacy in Practice

One of the reasons Pink Tape has been somewhat neglected of late is that, along with Transparency Project colleagues Julie and Paul, I have been writing a book about Transparency for Bloomsbury (The publish Harry Potter!! I know, right?), which is about to be published :

Transparency in the Family Courts: Publicity and Privacy in Practice

As a result, I have foolishly agreed to speak at the Bloomsbury Family Law Conference, on 16 May in London. I may* borrow my son's Elder Wand as a prop, accompanied by intermittent cries of 'Stupefy!!').

*I won't

Below you can see me talking about transparency (with hand gestures but no wand), in response to questions from fellow muggle Paul Magrath.

If you are still interested in buying the book after watching me pontificate, you can get a 15% discount using this code : BPTFC15. See how much I love you all?

If you are not yet persuaded, watch out for the stonkingly lovely foreword from Lord Justice McFarlane which I think will probably be posted on the Bloomsbury site in the near future (or maybe here if I'm allowed).

Losing the Thread – Hemming and Mumsnet

Twitter recently alerted me to the existence of an interesting discussion thread on Mumsnet concerning adoption and care and John Hemming (Hat tip to @carlgardner, who in turn got his heads up from @thesmallplaces). I have also found another equally interesting thread concerning and involving Hemming.

As a preliminary point let me say that I can't comment on whether or not the comments contained in these threads are true or accurate. But I can comment briefly on their potential significance if true.

In the first thread the points of most interest are contained in the account given by user Trippy, who describes having been encouraged by Hemming to adopt a stance of non-cooperation and to flee the jurisdiction. She is admirably able in hindsight to acknowledge her own failings as a mother, but appears to feel that Hemming's advice to flee the jurisdiction and to adopt a stance of non-cooperation with social workers may have adversely affected the outcome in her case, or at any rate was not helpful. She also suggests offers of assistance with travel abroad were made. If what Trippy describes is accurate it would be both shocking and concerning behaviour from an MP. However, I am not in a position to verify or investigate these matters, and I can only flag them up for others to consider. Note, as I have been writing this post the comment in question from Trippy has been removed and marked "Message withdrawn at poster's request". I don't have a screen capture, but if I did I would have to consider carefully whether or not to post it or to respect Trippy's privacy. As it is I have decided to go ahead with the post and use it as a starting point for a discussion about the issues it raises rather than an analysis of the individual case.

The second thread is interesting for a number of reasons. It contains in places some very well argued points in defence of the current system, or at least rebuttals of some of the points made by Hemming and other posters, and gives the perspective of foster carers, adopters and parents rather than lawyers. The comments and assertions made by Hemming in this thread do not in large part appear to be backed by evidence, and although he does at one stage draw on statistics which he has obtained by asking written questions in Parliament he appears to have a non-conformist view about what represents "the majority" (see posts on the evening of 8 May).

Both of those threads refer to a number of posters who regularly post "guidance" to parents involved in care proceedings, apparently in the vein of Hemming and organisations advocating non-cooperation stances, guidance which is of concern to some Mumsnet users.

Reading those threads did remind me that there is little information out there for parents about the other side of the "secret corrupt child snatching family courts" coin, so I'd like to take a first step towards redressing that balance [Edit - see also Kate Gomery's excellent post on Family Law which makes a similar point rather better than I have here]. I think it's important that information is out there so that parents can make properly informed decisions about how to conduct themselves. There is a lot of noise about how awful the system it is and how to fight it. It is in that context that it vitally important that parents faced with care proceedings and the possible removal of their children are made aware of just how high risk the strategies apparently recommended by Hemming, Ian Josephs and the like can be.

So let me deal with it in the hypothetical:

If a parent adopts an approach of non-cooperation, resisting social work intervention, refusing to give information, fleeing the reach of the court or publicising their case through the press or other media (all of which have been either put forward by Hemming or are guidance attributed to him), they could well adversely damage the chances of keeping or securing the return of their children. There may be high profile cases in the press which appear to demonstrate that such tactics are an effective way to protect your family (see Booker articles for example), but my experience suggests that the far more likely outcome is that a parent will only succeed in creating a further set of concerns that will need to be allayed in addition to the original concerns before a child can be safely returned. They leave a parent open to criticisms that they are focusing on their own needs rather than the child and are prevent parents from demonstrating that the original concerns were not well founded. They cause delay, which can end up being determinative of successful rehabilitation. That is not to say that parents should not determinedly resist the removal of their children, or that they are not entitled to do so, but generally the most effective route is a lawful route, and a route which involves being open and cooperative. It is also absolutely right that lawyers representing parents should fearlessly defend their client as they are mandated to do, and that they should be rightly criticised for failing to do so, or for failing to act on instructions.

However, it would be very concerning if parents were fed information suggesting that they should not trust their own legal representatives (as a number of commenters on this blog have regularly suggested), because this can render them unable to benefit from good legal and strategic advice about how best to maximise their chances of a good outcome for them and their family. Parents in care proceedings are vulnerable and generally not well equipped to tell good advice from bad. They are likely to rely upon advice from person in a position of authority, or perhaps to accept advice which lays the responsibility for their predicament at someone else's door, or which gives them the answer they wish to hear. I would be very concerned to think that any person, but particularly an MP (well intention or otherwise) was conducting himself in such a way as to interfere with the proper legal process and with the relationship of trust between lawyer and client, to the ultimate disadvantage of parents. I would not in any way want to prevent an MP and his constituent from communicating freely, but I would expect an MP to avoid giving potentially inaccurate or misleading information or guidance to parents in matters which are legally and factually complex.

Postscript: hat tip again to @carlgardner for alerting me to this judgment in respect of the Goodwin injunction case, in which Hemming is criticised for misleading comment, and the prospect of referral to the Attorney General is raised.

Postscript 2: this post really ought to be read in conjunction with this really really excellent post on Ministry of Truth: The Hemming Agenda.

Privacy Law Change Shelved

As heralded here the implementation of the CSFA 2010 reforms has been shelved pending the report of the Family Justice Review Committee in the autumn of 2011 (The MoJ website summarises the announcement here).
Which is odd, because the terms of reference of that committee relate only to system and process and specifically exclude making recommendations about substantive law. And I quote (the Review's own summary of its remit):

The Review will:

  • examine both public and private law cases
  • explore if better use can be made of mediation and how best to support contact between children and non-resident parents or grandparents
  • examine the processes (but not the law) involved in granting divorces and awarding ancillary relief, and
  • look at how the different parts of the family justice system are organised and managed.

So I'm not really sure what waiting for the review committee's report is going to achieve. But then I suppose if it recommends abolition of large chunks of family proceedings as we know them, the Act will become largely redundant. Either way, I would wager the sections of the CSFA 2010 bearing upon publication of information in family proceedings will go the way of much of the FLA 1996 (never brought into force).

Previous posts on the CSFA 2010 can be found by clicking here.