Second Open Family Court workshop – London

Workshop organisation is galloping ahead – I’ve just confirmed a London date for the second Open Family Court workshop, which will be held on the afternoon of Saturday 8 December. It’s a venue just off the Strand, so very central.

Family members, adopters, adoptees, care leavers, social workers, journalists, family lawyers, academics and campaigners, who would like to attend to discuss ways towards more openness, and thus, hopefully, better scrutiny and accountabilty in the family law system, I’d be delighted to see you there.

Send me an email: openfamilycourt@gmail.com to register your interest –  it’s  really helpful too to have a brief precis of your interest in the project.

Hopefully see you on Dec 8th!

Louise

 

 

 

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First Open Family Court workshop announced

I’m thrilled to announce that the first of four Open Family Court workshops will be hosted by the Social Justice Research Group at UWE Bristol.

It will run on the afternoon of Saturday 3 November, and as promised in an earlier blogpost, there will be cake (or possibly a selection of gingerbread Cyclops, depending on whether me or the kids get to the baking cupboard first).

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Huge thanks to Professor Lauren Devine, the Group’s director, who has very kindly made the space at UWE Bristol available.  Lauren gave the keynote address at the Transparency Project’s first ever Child Protection Conference, Is the Child Protection System Fit For Purpose, which I attended back in 2015; she made a compelling presentation on Policing Parents, Protecting Children: Rethinking Child Protection Strategy, which was instrumental in me becoming deeply involved in reporting on family law, so it feels particularly fab that this first Open Family Court workshop will be the inaugural event hosted by her new Social Justice Research Group.

The Group was founded in 2018 to research and report on contemporary issues of social justice, and its work is co-led by Stephen Parker and Elizabeth Green. It is currently researching vulnerabilities and hidden vulnerabilities in child protection, funded by grants from the Nuffield Foundation and the Economic and Social Research Council.

In its projects, ’Care Cases Crisis’ and the ‘Risk of Risk’, the Group’s researchers are looking into the rise in care order applications in the family courts, and the legal, ethical and statistical issues arising from the use of risk algorithms in identifying families for state intervention.

Workshop structure and purpose

Workshops will have a maximum of 20 people, so that everyone can participate fully.

I’m hoping for a mix of people with different experiences of and perspectives on family law as its practised today: family members, care leavers, foster carers, adopters, adoptees, social workers, lawyers, experts, and social work and legal academics.

I am hoping to create a specific forum where children’s voices can be heard, but for this workshop it’s important that everyone who attends is over the age of 18.

The idea is that we will explore what greater transparency could mean for the family law system; what people would like to see changed about the way that those working in family law are scrutinised and held accountable; how people perceive the risks of greater openness, so what we are scared of; and, the elephant in the room question… what degree of risk might society be willing to accept to achieve a more visible, open, accountable and robust system that engenders greater trust in those who use it, and which therefore makes better decisions for all children and families.

I already have a list of people in and around Bristol and the west country/Wales who have  approached me to say they’d like to take part, but there are spaces left and I’m particularly keen to hear from more family members with experience of both private and public family law who might like to take part, as well as from family solicitors, barristers and children’s guardians.

If you’re interested, please email me on openfamilycourt@gmail.com, and I’ll be in touch.

Beyond the blame game

Ryan Wise, a social worker and practice development manager at the Social Care Institute for Excellence, replied via Twitter when he first heard about the Open Family Court project in the first couple of tweets I put out. He had some concerns about the impacts more transparency might have, and said so.

I asked him if he’d take a look at the launch blogpost, to which he very kindly responded by email, as follows:

“My interest stems from practice… I am keen to think more widely about how organisations can … improve to ensure the experience of children and families in the system is both proportionate and helpful. I am currently thinking about how to develop ideas of co-production into social work practice. I am therefore interested in this project… as I said on Twitter, I do have reservations about how greater transparency to courts in order to achieve accountability may lead to more problems but that is not to say I don’t appreciate the possible benefits. This is definitely is an area which needs greater discussion and debate and I would love to be a part of that.”

We ended up having a phone chat, and rather than writing a blogpost, I suggested we might post a quick overview of our conversation, which was illuminating for me and touches on important themes that I’ll want to draw out in the workshops.

These aren’t our exact words, but will hopefully give a sense of what was said. Ryan has seen it and agreed that it’s an accurate representation.

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Ryan “There is so much anxiety and pressure in the child protection system that anything about extra scrutiny and openness can feel overwhelming. But improving what goes on within the system is important because it’s also clear that numbers of children in care are rising, so the stakes for families are very high.”

Louise “What do you think that social workers’ main questions might be about greater transparency around what goes on in family law?”

Ryan “‘What does transparency mean in practice?’ would be one question I’d ask. ‘What is more transparency trying to achieve?’ is another.”

Louise “Yes! These two questions are absolutely central to the project. Thanks for encapsulating them so neatly. I’ll use them in the workshops.”

Ryan “Being completely honest, there’s going to be an element of concern about where the scrutiny and accountability is going to land, if there’s more openness around what social workers do. The child protection system is complex, and it’s also flawed, and that’s increasingly because of perhaps not enough money going in at an earlier stage. So I think a major concern social workers might have is, are we laying ourselves open to lots of scrutiny at a late stage, when there are things many of us may well not agree with in the ways we’re often forced to work. Social workers can be left with no option but to do their best within a system which has many elements they may not agree with.

“We can’t always do the social work we know would really help, and that’s because of resource constraints. That means that the idea of hauling social workers over the coals for their recommendations to a court at the end of a process would worry me. Because social workers know the flaws. Social workers are working with what they have. It’s fair to say that I have concerns about the quality of some social work, but ultimately it’s the system that needs scrutiny, not the final threshold recommendations for a child who by the time we all very reluctantly end up in court, is in a situation where there are huge concerns for their safety.

“By contrast, having greater transparency around the culture and context of what goes on •overall• in the family courts would be useful in enabling better scrutiny of some norms that can be really destructive and can add to a ‘them and us’ mindset.”

Louise “Can you give me a couple of examples?”

Ryan “Yes. Something I’ve noticed is that the emotional impact on families of going to court can be completely disregarded by the professionals involved.  The atmosphere in court can feel formal and even frosty. Sometimes even as a social worker you feel isolated, so for families the sense of being ‘on your own’ must be far worse. I sometimes wonder if lawyers have ever thought about how it feels for a parent who is terrified that they might lose their child, to have to listen to them chat on about the next fancy holiday they’re about to head off on. Or laugh and joke about the social occasion they were at together the night before. It can sound heartless and it’s completely disrespectful to someone who’s dealing with incredibly painful emotions.

“If family courts were more open and transparent in their workings, maybe this sort of thing wouldn’t happen so much because professionals would know they were more visible and so behaviour would improve. Also, some judges are good at talking to families, but I’ve noticed that others really aren’t, which isn’t great.  Overall there can be a lot of anxiety and worry which simply isn’t addressed by the court.

“On the social work side, I think greater scrutiny could encourage practice which isn’t so formulaic and process driven. Of course we go to court sometimes because the risk is too high and so it becomes necessary, but what I’m more interested in are the times we go to court when we don’t know what else to do. We may think actually this parent may be able to do it, we just need x, y or z, or maybe more time, but in my experience, in this situation we still sometimes go to court because we feel we are encouraged to be risk averse and make defensive decisions.

“We go from child protection to initiating care proceedings because there’s a sense that “if something bad happens at least we can show we were in the court arena.” Greater scrutiny may encourage greater discussion about this slide towards court, and also encourage the kind of leadership which works to support social workers to hold more risk. If greater scrutiny can help us think more about our relationship with risk and improve our decision making, that would help children and families.

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Reminder: Open Family Court Workshops

I’m planning a series of workshops to explore how  transparency, scrutiny and accountability might be better achieved in the family law system.

If you’ve had experience of family law, whether as a family member or a professional, and would like to be involved (they will be held around the country) please get in touch with me on openfamilycourt@gmail.com.

Thanks!

Louise

New call for openness in family law

It’s over a month since I published my first Open Family Court blogpost, so this is an opportunity for me to say a huge thank you to everyone who emailed in response saying you’d like to hear more and get involved.

A quick recap on the purpose of this project as I expressed it in that blog:

“[It’s planned] as a collaborative exploration of how to recalibrate the balance between privacy in family courts – which exists for the very good reason of protecting vulnerable children – and freedom of expression, which allows people to speak out publicly about what the state has done to them, a right currently hobbled by the Administration of Justice Act 1960.”

Reasons for being open

Interestingly, just last week, The Guardian published an editorial advocating greater openness in the family court.

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The paper’s leader writer set the need for greater transparency and scrutiny squarely in the context of soaring numbers of children in state care, the rapid rise in applications to remove them from their families, the effects of cuts to local authority budgets, and the £2bn shortfall in the children’s services budget that directors of social services have been pleading for the government to meet. Given that preventative services have been decimated across the country, that money is vital as it would allow councils to put in more early help and family support – of which I keep hearing there is all but none to be had.

The editorial concluded:

“Openness should enable, and not hinder, good practice. If people are to have views on legal aid, or adoption, or the impact of cuts, they need to know how the system works. Before the crisis in the family courts can be tackled, means must be devised for it to be seen.”

I think that’s right. We cannot, as citizens, have an informed view on what is done in our name, in a legal arena where some of the most drastic intrusions possible are visited upon families by the state, if we are not allowed to understand how that system works in practice.

Want to get involved?

There are several ways you can contribute to the thinking I want to generate through this project, and I’d be thrilled if you wanted to take part.

1 – Chat to me on Twitter on @openfamilycourt. I’m taking notes of people’s thoughts, arguments and concerns, which will inform the project as it progresses.

2 – Would you like to write a blogpost in response to the aims of this project? Let me know on openfamilycourt@gmail.com

3 – My intention is that there will be two workshops before Christmas. These are intended to draw out and draw on people’s expertise, ideas and experiences in order to address the conundrum of how do we get to a place where there is better accountability, scrutiny and openness in our system of family law – in a way that children stay safe.

To prepare for these workshops (there will be at least two in the New Year as well) I recently undertook a fascinating training session with facilitator Helene Jewell on how to run a session where some really deep, exploratory thinking can be done, and hopefully some radical, creative, disruptive ideas can be generated.

I’ve not done formal facilitation before, so this is a learning curve for me; I’ll do my best.

I would love each workshop to include a mix of: family members (including of course care leavers and anyone who as a child experienced the family courts) with experience of either private law or public law cases; social workers: family lawyers; academics; journalists; and charities with a relevant interest and expertise.

It might be possible to include the views of children over the age of 16, and I am still looking into how this might be done, as well as taking advice on whether I should.

If you’d like to be involved in the facilitated workshop sessions, which are the backbone of this project, please email me on openfamilycourt@gmail.com

Once I’ve organised the dates, I’ll be emailing people who say they want to attend a workshop with an online calendar to see who might be able to get to which venue (I’m aiming to hold them in different areas of the country).

Related news on family law issues

Just in case of interest, (not directly related to the Open Family Court project), in the last two weeks, I’ve written two Guardian pieces looking at different aspects of the care system.

The first was a news report on research by Professor Andy Bilson, which analysed statistics on the use of “emotional harm, or risk of emotional harm” as a reason for child protection plans across the country, and found that nationally, numbers have risen very sharply.

By contrast, sexual or physical abuse as a reason for launching child protection plans had risen only marginally. It was particularly notable that in some areas, the use of “emotional harm” as a reason for child protection intervention had risen fast, while in others, it had gone up only a little, and in others, it had fallen.

The second piece was a longer feature on the latest findings from a long-term study led by Professor Paul Bywaters across England, Scotland, Wales and Northern Ireland. The research showed that the rates at which children are living in foster or residential care are markedly different in the four areas: Northern Ireland has 35 children in foster or residential care for every 10,000 children, compared to 82 per 10,000 in Scotland, 62 per 10,000 in Wales and 52 per 10,000 in England. Those differences are huge, and the team is currently exploring why they might occur.

Letting in sunlight on family justice

 

This is the first blogpost launching my new project, The Open Family Court, which has been generously funded by the Paul Hamlyn Foundation Ideas and Pioneers Fund.

The project is planned as a collaborative exploration of how to recalibrate the balance between privacy in family courts – which exists for the very good reason of protecting vulnerable children – and freedom of expression, which allows people to speak out publicly about what the state has done to them, a right currently hobbled by the Administration of Justice Act 1960.

To realise the project’s full potential – I’m thinking of it as a quest for a solution to a so-far-intractable-but-not-impossible conundrum – I’m going to need all the help and engagement I can get from people with knowledge and experience of family law, children’s services and the family court system.

This is therefore an introductory scoot through the background to this project and the reasons for it (having just read it back, it may not feel like a scoot, but I promise I have slashed the post back to the bare bones of what I think needs saying, and am very grateful to anyone who stays the distance!)

 

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Section 12 of a nearly 60 year old piece of legislation means that anyone who describes or publishes what happens in front of a family judge risks being in contempt of court. The sanction is a fine or jail – possibly both.

The result is that if people working in the family law system – social workers, expert witnesses, children’s guardians, lawyers and judges – act unprofessionally, unethically or even unlawfully, unless a judge says it’s okay to talk about it, or a judgment is published (and the judge is the sole arbiter of what goes into that), nobody is allowed to know.

It means there is little effective scrutiny or accountability in our family courts.

It means that parents cannot protest their treatment at the hands of the state – and when you stand to lose your children, sometimes for ever, this is an extraordinary loss of your human right to freedom of speech; the very opposite of open justice.

It means that although for the most part, since 2010 journalists have been able to attend family courts, we cannot, by right, report the detail of what goes on in them – and so we can’t do our job as the eyes and ears of the public when extraordinary intrusions into family life are made and draconian actions that change people’s futures are taken by the state.

It means that citizens are prevented from knowing what is being done in their name.

Given the journalism I’ve done on issues highlighted in judgments that illustrate poor practice, professional failure, deliberate thwarting of court orders and actual human rights abuses – and the telling details I have not been able to report in cases I’ve personally observed because of these statutory reporting restrictions – I am convinced that children would be better served by a family law system that has to work with something at least approaching the degree of transparency required of the rest of our justice system – required indeed of those working across both other arms of the state.

Before I go on to explain more about my plans for The Open Family Court over the next nine months, I thought I’d recount a few experiences from my time as a journalist reporting on some of the most distressing and extraordinary events I’ve ever encountered. At the same time, they are commonplace, and endured by many people, right across society. That’s what makes family law relevant to everyone. And why it matters so much how it’s done.

 

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Three and a half years ago I pitched up at the big central family court in Bristol. I was researching a Guardian feature about cuts to legal aid for domestic abuse victims and my editor wanted me to report on what it was like for a woman trying to get a non-molestation order on her own, without a lawyer to represent her.

I’d never been to a family court before. Thanks to a hurried reading of a guide I knew there were statutory restrictions on what I’d be able to write. What I didn’t realise at the time was just how hard it would be to get them relaxed. (I also had no idea how family courts worked. It turns out there are specific “non-mol” days where these applications are heard and unfortunately I hadn’t arrived on one of them.)

For the next story I did on how legal aid cuts were affecting separating parents who were in dispute about their children, I thought I’d try asking for permission to report. Naively, I now realise, I whizzed off an email to the district judge with a polite request to let me describe what had gone on in court in a private law case I’d just observed.

Everyone would be anonymous, I promised.

Equally politely, he replied saying I’d need make a formal application – costing £155 I seem to recall – and a skeleton argument (a what? I really had no idea, but it certainly sounded like it was going to take quite a lot of time and money.)

He also asked if I had informed the the parties to the case – the mother, father and the Cafcass guardian – of my wish to write about it. They would all need to formally tell the court their view of me reporting, even anonymously, what I’d witnessed.

I groaned. Given the price tag attached to submitting a formal application (I wasn’t at all convinced I’d get it through on expenses), my lack of legal expertise or any experience of writing skeleton arguments, the inevitable acrimony between the parents involved, and most of all the timescales – journalists work to deadlines after all, and I could tell this would all take an age – doing as the judge required was a practical impossibility.

So I wrote my article with my heart in my mouth, trying to skirt around the most interesting and importantly, informative moments in court that illustrated perfectly the immense disadvantages to the father, in that particular instance, of not being able to afford a lawyer. Even so, I had sleepless nights in the lead up to publication wondering if I would be in contempt.

Since then, I have made one oral and two written applications to relax reporting restrictions in public law care cases. All were successful, but the immense amount of work entailed in the written applications – in one, about a North Tyneside woman whose son was removed at birth and her fight to get him back, this ultimately comprised eight days of pro bono support from two barristers, countless hours of my own time and an expense claim that took my editor’s breath away – means such an effort is simply impossible except for very important stories.

 

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“Annie” and her son in North Tyneside, by Christopher Thomond for The Guardian

As a freelance, what I was paid for the resulting articles didn’t begin to reflect the work or time required to get the right to publish them. Other journalists have made similar efforts: after taking considerable pains to get permission to report a case she’d seen at Birmingham’s family court, Buzzfeed UK’s senior reporter Emily Dugan’s view was that:

“Journalists are bound by their own ethics, and also strict laws on anonymity. Judges could do more in hearings themselves to make orders on the hoof to make it clear what the journalist can and can’t report, after hearing brief arguments. Anything more costly or time-consuming than that feels more prohibitive than court reporting should be in a democratic country.”

 
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On my desktop at home, I have a email folder where I file all the many messages I’m sent by parents who say their children have been removed unfairly. They detail not only the heartbreak and fury, but also the sense of injustice they feel at a system they believe is stacked against them and which in some cases, they say, has seen professionals behave unlawfully in breach of their human rights.

Whatever the rights and wrongs of each complaint – and resource-wise is it impossible for me to investigate almost any of them – it has become very clear there is an upswell of distrust in local authority children’s services in general and in social workers in particular.

The fact that nobody is legally permitted to speak publicly about the evidence given about them in court, and how the processes can – and demonstrably have in some cases where judgments are published – unfairly disadvantaged families, significantly compounds people’s rage and indignation.

It’s obvious why: imagine the state removes your child and has it adopted without your consent. Then imagine you’re told you can’t complain about a legal process that you feel has been handled unfairly, even unlawfully. Outrage is piled upon grief when families can’t protest their treatment at the hands of the state. Families are, by law, rendered voiceless and so end up powerless to challenge and change a system which they – with varying degrees of justification no doubt, but sometimes entirely correctly – believe is shockingly unjust.

And so mistrust grows, and families that need help don’t believe they can risk asking for it. Vulnerable children then end up at greater risk… and the cycle implodes upon itself, trailing ever greater destruction in its wake.

 

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Back to the Open Family Court.

This project follows and takes inspiration from a significant evolution in thinking about transparency in the family courts that has taken place over the past several years.

The dilemmas around transparency were already being articulated in 2011 when the then president, the late Sir Nicholas Wall, wrote in his preface to the abovementioned media reporting guide:

“There is no more difficult issue in family justice than the reporting of cases. There is a tension between concerns about “secret justice” and legitimate expectations of privacy and confidentiality for the family. Both standpoints are valid, and the question is whether they are irreconcilable.”

Sir Nicholas went on to say that the publication of the guide –

“…is all the more timely as the debate on increased transparency and public confidence in the family courts moves forward. It will serve to inform future consideration of this difficult and sensitive area, including the questions of access to and reporting of proceedings by the media, whilst maintaining the privacy of the families involved.”

Real progress towards greater openness and understanding of what happens in family law was propelled by the subsequent 2014 practice guidance issued by the immediate past president Sir James Munby, telling circuit judges and those more senior that they must, unless there are compelling reasons to the contrary, publish their judgments in family cases.

That followed his previous year’s “View from the President’s Chambers”, in which Sir James said he was:

“determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.”

I have argued before that while this is a big step forward, it is nothing like enough to ensure proper scrutiny and accountability in our family courts.

As a journalist, I don’t want to have to rely for my reporting on what a family judge says in her judgment: in no other situation do I take any arm of the state at its word without the opportunity to evaluate its account against those of others who have been involved. And in any case, recent research has shown that in some areas of the country, judgements just don’t see the light of day.

Also… what if a judge behaves badly? What if she gets things wrong? It happens. Why shouldn’t we know?

And if I was a family member involved in a private or public law case, I’d want to have the choice to give my own account of the process by which life-changing decisions were taken about my family’s future.

It’s important to note here that when asked to relax statutory reporting restrictions, judges have often agreed, at least in part. I’ll give a couple of examples.

  • After barrister Lucy Reed and I worked together on a way to anonymise the North Tyneside family that was both editorially acceptable and addressed the concerns of the council, in 2015 Mr Justice Bodey published his judgment allowing me to report using the name of the council in question, and quoting from the case papers (which Judge Simon Wood had earlier allowed me sight of, against the wishes of the local authority). I did not seek to name the family. This is important, and a point I will return to in later posts.
  • Against the council’s wishes, Judge Stephen Wildblood last year allowed a joint application by me, Buzzfeed UK and BBC Gloucestershire to name Gloucestershire county council in a case where a special guardian wished to make clear her dismay at how her family had been dealt with. We did not seek to name the family.
  • In 2013, Sir James Munby, president of the family division, in a case which he said “raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media,” allowed a father to freely publish a video of his one day old baby, who had been removed from his care, while at the same time restricting the publication of the child’s name.

 

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It is clearly not going to be easy to find a way through the dilemma of how to enhance transparency and openness in family courts while still ensuring children’s privacy, but I believe there are huge strides that can safely be made.

Not least, changes are needed within the cultures of social work and family law. Despite some fabulous thinking that’s now being done [declaration of interest: I am a member of The Transparency Project, a charity which seeks to promote openness and understanding of family law and whose legal and academic members spearhead many of the discussions in this field] these are professions that often seem chary of any light being shone on their daily working practices in and around family courts.

My plan is to run a series of consultative events and workshops over the next nine months, drawing on the knowledge, experience and insights of family members, care leavers, social workers, adopters, foster carers and legal professionals who may already be engaging with these issues in their personal or professional lives, via blogs or on social media.

Through facilitated sessions, I’m hoping to create an environment where we can challenge and creatively disrupt existing ways of thinking about privacy and free speech in family cases; unpick seemingly intractable problems to work out what they consist of today, as opposed how they looked nearly 60 years ago; and generate thoughtful and safe solutions to a conundrum caused by a law that many feel is no longer fit for purpose.

So… it all kicks off properly in September. Anyone who would like to take part – there will be cake…

 

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… and more importantly, some travel expenses are available for family members who may find it hard to afford the cost of attending.

If you’d like to get involved, please email me at openfamilycourt@gmail.com – if you could explain your interest in the issue, that would be brilliant, and I look forward to hearing from you!

Louise