This report was published this week on behalf of a group chaired by two High Court judges, Mr Justice Hayden and Ms Justice Russell.
What does it have to do with transparency?
Well, this (paragraph 34):
‘The need for greater transparency has been a leitmotif of recent modernisation of family justice and in keeping with that approach the WG [working group] recommend that there should be an increase in public access to the family courts so that members of the public, including children and young people can see what is happening. The Family Courts should hold Open Days every year – some have already with great success, as have numerous Crown Courts. Visits by groups of school children such as those arranged by the Inns to the High Court and by judges in Crown Court have proved to be very effective; it has the dual purpose of de-mystifying the Family Court and is educative.’
The working group had two purposes: (1) to make recommendations about improving arrangements for evidence from vulnerable witnesses in the Family Court and (2) responding to the call from the Minister (Simon Hughes), the President of the Family Division (Sir James Munby), and the Young People’s Family Justice Board for children to ‘speak to the judge’.
A ‘vulnerable witness’ in the Family Court is almost always an adult, or another child, whose evidence is needed about the child who is the subject of the application i.e. the child who decisions are being made about. So, the working group was looking here at two different situations: the first is where the court needs to hear a witness’s evidence, for example when one of the parents or a sibling is in need of special protection or an intermediary in order to give their evidence. The second is where the evidence about the child, including their wishes and feelings, is all contained in the documents presented to the court. In this second situation, the local authority social worker or Cafcass social worker may also be asked to give oral evidence in court.
Presumably, the working group hopes that by arranging routine visits and education about the Family Court, there is a chance that young people who find they get caught up in proceedings will feel less daunted than if they had never heard of this type of court before.
However the recommendations raise a number questions for me:
- If the child is going to able to tell the judges what s/he wants, how does this relate to the role of Cafcass and how are judges to be trained to conduct these meetings?
- The report constantly refers to a young person seeing ‘the judge’, but very few separating parents get anywhere near a judge. Most either make their own residence and contact arrangements, go to mediators, or are seen by magistrates or magistrates’ legal advisers.
- Given that the report is clear that what the child tells the judge cannot be used in evidence and therefore cannot influence the judge’s decision – is this really an answer to those young people who believe their voice is not being heard?
One is left wondering how children will be helped to understand the limitations of ‘meeting the judge’. The report itself concedes that the legal position is hard to explain to anyone.
So, can the grievances of these young people be addressed by public education about family justice?