Family Justice (Transparency, Accountability and Cost of Living) Bill

Steve Baker Excerpts

Friday 26th October 2012 Commons Chamber

[John Hemming]

The hon. Lady is entirely right. One of the difficulties that sometimes arises is that people are told to do one thing at one stage, but when they have done that, they are told that it was the wrong thing to do. If things could be put in writing so that people knew what they were supposed to do, they should not then find that they are punished for sticking to it. That happens far too often. There are too many cases where people are not given adequate information.

[Steve Baker (Wycombe) (Con)]

From the way the hon. Gentleman sets this out, it sounds as though there is a substantial element of arbitrary power. Will he reassure me that his Bill would eliminate all such areas of arbitrary power so that people could have certainty?

[John Hemming]

The hon. Gentleman is right that there is too often an element of arbitrary power. The difficulty flows from insufficient academic scrutiny of the whole process—in other words, things are left to the discretion of individual practitioners, all of whom have their individual attitudes. When someone moves from one practitioner to another, the arbitrary power will often be exercised in a different way. I spoke about this to Professor Sue White, a professor of social work at Birmingham university. She is concerned about the change in practice that does not seem to be evidence-driven, but she is not allowed access to family court proceedings unless she is actually involved in the individual case. The ability to do proper peer-reviewed research on the decisions taken and what is happening on the ground is simply not there. The system just goes on.

I try to look at the reports from a scientific point of view, and find that some of them do not hold water. As I said, Professor Jane Ireland’s work pointed out that two thirds of the reports she looked at were either poor or very poor, which is not adequate for the purpose of making life-changing decisions. That lack of intellectual rigour leads to arbitrary power, as the hon. Member for Wycombe (Steve Baker) says. The introduction of intellectual rigour would make that go away and get us back to the rule of law rather than some people having massive discretion. At the moment, we do not have the rule of law setting out what should happen in these situations. That is what gives rise to many different problems in many different areas.

[John Hemming]

The hon. Lady is right. Delay does cause a problem, although speeding things up and not getting things right is another problem. The most important thing is to get things right. When that has happened, that is the time to do things reasonably quickly.

I now return to the Bill and look beyond the issue of family group conferences. Clause 2 looks at the wider issue of scrutiny—academic scrutiny and the like—to which I have just referred. One issue is that of people having other people with them. McKenzie friends are generally allowed to attend court, but it can be a very intimidating process for families. If a young mother is not allowed to take her own mother to court with her for support, the court will not be a very good environment.

A case in, I believe, Finchley involved a Czech family, but the court would not allow a representative of the Czech embassy to attend the court hearing. That strikes me as very strange. Given that it is possible for a person to talk confidentially to almost anyone and ask for advice, why is it not possible for one or two people to sit with that person in court? It would make the whole process more effective, because it would provide psychological support.

Family courts sit in secret. It is generally accepted that anonymity is required, and that demands a certain amount of secrecy. It is not possible for the newspapers to publish all the details of a case. It is true that one of the Slovak cases is being discussed publicly on prime-time television in the Slovak Republic, but if it were on YouTube, YouTube would be subject to a court order to prevent the television programme from being seen in England. I think that the principle of anonymity is reasonable, but beyond that, dangers arise. The lack of academic scrutiny, which I mentioned earlier, is critical.

[Steve Baker]

It seems to me that it is not necessary to have secrecy in order to have anonymity. Does the hon. Gentleman propose any measures that would make it possible for the necessary information to be available to academics, so that trials would not be secret but anonymity would be protected?

[John Hemming]

That is the purpose of clause 2(2), which allows academic research to be involved in family court proceedings. The former children’s Minister said that we needed more transparency in the courts, and the National Society for the Prevention of Cruelty to Children has said that it supports efforts to make the family courts more transparent if they do not make it more likely that children will be identified. The Bill achieves that sort of balance.

Proceedings in the family court can be daunting and intimidating for people taking part in them. The report of the recent family justice review by Professor Norgrove found that

“the common complaint”

was

“that the courts are daunting and intimidating places for families”.

Detailed research by the London Safeguarding Children Board established that when families arrive in court to see a large number of lawyers and professionals lined up,

“professionals need to understand how intimidating it is”

for parents

“to be so ‘outnumbered’.”

Clause 2(1) permits parties to have two friends with them to support, advise or advocate on their behalf. In fact, only one of them, the McKenzie friend, will advocate, and obviously if a lawyer is present a lay person will not be required. Much of the evidence that I cited in relation to clause 1(5), including the conclusions of the Justice Committee, demonstrates the need for that.

Clause 2(1) also ensures that the confidentiality of the proceedings is maintained by making the two friends subject to the same confidentiality rule as the party to the proceedings. The protection already exists; the Bill merely provides for someone to be present to offer support—not necessarily to advocate or offer advice, but simply to be there. That is important. Why should a young mother, aged 19 and threatened with the removal of her child, go to court alone? Why can we not allow her mother to go with her? What is wrong with allowing her mother to sit next to her? What is wrong with allowing a representative from the Czech to accompany a Czech citizen to court? Why do we allow so few people to go there?

Clause 2 (2) deals with accountability by permitting the involvement of bona fide academic research in proceedings in the family courts. The Justice Committee concluded that, while family courts sit in private to protect the anonymity of children,

“there is a danger that justice in secret could allow injustice to children”.

That point was made by Professor Jane Ireland, who carried out research on the quality of expert evidence used in the courts. Her study showed that there was a risk of injustice because one fifth of expert psychologists were not deemed qualified, and two thirds of the reports reviewed were “poor” or “very poor”.

In a recent case in the Court of Appeal, it was ordered that a child should be removed from his family on the basis of incorrect evidence concerning his injuries. The Principal Registry of the Family Division ordered that the toddler be returned to his parents after it was established that he was vitamin D and calcium deficient and had undiagnosed rickets. The issue of vitamin D is very relevant. An excellent firm of solicitors in Birmingham, Brendan Fleming, has helped to identify about eight vitamin D-related cases in which miscarriages of justice are likely to have occurred. It is probable that children have been removed from their parents because mum had a vitamin D deficiency and was breastfeeding at the time. It is currently contempt of court to allow an expert medical person to look at all the documents and write peer-reviewed reports. Why is that? How does preventing the more intelligent people from reviewing the paperwork improve justice?

Subsection (2) also recognises the need to keep proceedings confidential, stating that

“any publication of the research removes all identifying details and… it shall be a contempt of court for any person receiving or publishing information pursuant to this section to reveal the identity of any person whose details he has received.”

The Bill protects anonymity while ensuring that there is an intellectual challenge, and that is surely a massive improvement.

Clause 2(3) relates to grandparents and other wider family members of the child. Subsection (3)(a) enables such people to attend the part of a hearing that involves consideration of whether the child should be placed with them. Currently, a court will decide not to place a child with a grandparent when that grandparent is not present. There has been a great deal of debate about whether grandparents should be allowed to be party to court hearings. The problem is the huge amount of paperwork, which creates a massive burden. However, merely allowing grandparents to be present and to participate in discussion of whether or not they would be adequate carers for their grandchildren would not pose a major problem, and would allow any erroneous concern about their ability to look after the children to be corrected at that point rather than being dealt with on the basis of a report written by a representative of the local authority.