My ‘victory’ over secrecy in the family courts has a nasty twist

High court judgments are not always what they seem – I’ve still been silenced

6:50PM GMT 09 Mar 2013
My one fear in reporting last week that The Sunday Telegraph had won a historic victory in the High Court by persuading a judge to lift an unusually draconian reporting order he had imposed on me, barring me from ever again mentioning a particular family case, was that there might be a nasty twist to the tale.
This was a story I had reported on several times, involving a devoted mother of two small children who, for two years, has been fighting a horrendous battle against an array of social workers, lawyers and judges, fearing that their real aim was eventually to find some excuse for removing her children from her.
I had been accused by Mr Justice Mostyn, without evidence, of every kind of inaccuracy in my attempts to tell this disturbing saga, and of giving “only one side of the story”, and was told that I should have come into court to hear the other side. When Mostyn agreed to lift his order on me, he also obtained an assurance from the local authority’s barrister that Sutton Council would answer any questions I put to them, so that I would be able to give their side of the case.
It was obvious that the lawyers for the other side were not at all happy with the outcome of this hearing, although it left me in the absurd position that, while I was being encouraged to tell their side of the story, I was barred from ever speaking again about it to the mother.
So I was, in effect, being told that I was free to continue reporting on the case one-sidedly, but only so long as it was from the council’s point of view.

I was already aware that the story was about to come to its climax with a final hearing in the High Court before another judge, Mr Justice Coleridge.
So last week The Sunday Telegraph sent a reporter to the court to listen on my behalf to all that was being said, exactly as Mr Justice Mostyn had said should happen.
My colleague was told that in no way could he enter the court. One judge seemed now to be saying the very opposite of what his fellow-judge had said only the previous week.
My real fear has been that the children could be removed even though they had lived happily since they were born.
On Friday, therefore, in accordance with Mr Justice Mostyn’s wishes, I put to Sutton Council’s press office three questions: could the council confirm whether or not it was intending to ask for removal of the children? If so, on what grounds, and could they tell me the outcome of the case?
The council’s reply was that, although it wishes to operate a policy of transparency, since this particular case is now “at a very delicate stage”, on the orders of the court, “I’m afraid we cannot answer your questions at this stage”.
So I still do not know the case’s outcome; and even if I did and was to report it, I might well risk being charged with criminal contempt, for which I could be sent to prison.
Despite all those protestations of how important it is that our family courts should be properly reported, the wall of secrecy that surrounds them seems to be more impenetrable than ever.…

Open up family court hearings, says senior judge

A senior judge has made an important ruling in favour of transparency in the family courts.

Open up family court headings, says senior judge

Mr Booker, inset, has written a series of articles highlighting the most controversial aspects of the family courts Photo: Christopher Jones for the Telegraph/Alamy

9:00PM GMT 02 Mar 2013

Mr Justice Mostyn lifted a ban on Christopher Booker, The Sunday Telegraph columnist, reporting on a case involving the future of children who are living with their mother.

The injunction barred Mr Booker from making any mention of the dispute, known as MvM and the London Borough of Sutton.

However, last week the High Court heard how the order prevented the reporting of proceedings that were “clearly in the public interest”.

In his ruling, Mr Justice Mostyn said he was lifting the injunction “because the emphasis should be on transparency” in the courts.

He added: “Mr Booker is perfectly entitled to be as rude as he wants about anybody he wants. That is what freedom of speech is about.”

The court had heard from Gavin Millar QC, for The Sunday Telegraph, that the injunction breached Mr Booker’s right to freedom of speech and that reporting on the case was in the public interest.

He also argued that reforms brought in to open up the family courts had been ineffective, because although the press were now able to attend hearings, what they were allowed to report was limited.

They were also, in many cases, unable to see court documents, which were key to understanding proceedings.

Mr Millar said: “We could have a discussion about how those reforms have worked and how the press have been helped by them. There’s a general feeling that they haven’t been helped that greatly. Very often they can’t report what they want to report.”

Mr Justice Mostyn agreed, adding: “They [the journalists] can’t see the documents so it’s complete Chinese to them.”

The injunction was imposed after Mr Booker wrote a series of articles about the case, which involved the divorce of the parents of young children.

The mother was placed under an order that prevented her from moving from the address where she and her children live, near the father’s home, to enable him to keep in touch with his children.

It meant she was twice unable to hold down well-paid jobs in the finance industry, because the jobs were too far away for her to commute to.

Before another hearing, the barrister chosen to represent the mother decided that she was suffering from a psychological condition and said the mother was not “mentally competent” to instruct her.

As a result, the barrister said she was not willing to put forward the arguments the mother wished to be put forward in court. She asked to represent herself but it was only after a psychologist gave evidence that she was mentally competent that she was allowed to do so.

Mr Millar argued that journalists should be able to shed light on such legal practices.

He said: “The core of the article was about an episode in the life of a litigant which is certainly an issue of public interest: that the law could operate in that way, that the lawyers representing you could bring into question your mental capacity.”

Mr Booker has written a series of articles highlighting the most controversial aspects of the family courts.

He called the injunction “far too sweeping in its implications” and said the decision to lift it was “a victory for common sense and the rule of law”.

He added: “Had this ruling been upheld, it could have greatly extended the rules of secrecy which govern cases involving social workers, children and the courts, and severely curtailed even such limited freedom as the press still has to report such cases.”

Julia Varley, a solicitor for David Price Solicitors and Advocates, which represented The Sunday Telegraph, said: “It is important that the public are able to receive information about what goes on in the family courts and that the media are able to report on such cases, which are often held behind closed doors.

“This decision is a further step in favour of transparency in the family courts.”

Mr Justice Mostyn’s lifting of the injunction is the latest in a series of rulings intended to open up the courts.

Family courts in particular have often been accused of a lack of transparency because cases involving children are not open to the public. The courts argue that this is to protect the identity of the children, but critics have highlighted the difficulties of reporting on such cases.

In 2008, Jack Straw, the then justice secretary, promised to shed light on family courts and brought in new rules allowing journalists to attend.

But judges ruled proceedings would still be held in private and journalists would therefore be unable to report anything on the case unless the court gave specific consent.

Lord Justice Munby, President of the Family Division of the High Court, has called for greater transparency, calling for “radical and comprehensive reform” of the family court system.

We already have unjust secret courts

Behind a wall of secrecy, the family courts routinely turn all the familiar principles of justice upside down.

Captain Alfred Dreyfus - We already have unjust secret courts

Dreyfus was convicted on the basis of evicence shown to the judge in secret Photo: ALAMY

7:00PM GMT 03 Mar 2012

There was outrage last week over government plans to extend the degree to which our courts can operate in secret. David Davis, former shadow home secretary, claimed that such “a regime of secret courts and hidden judgments”, where defendants could not even be “told the evidence against them”, were worthy only of “despotic one-party states such as Syria, Iran and North Korea”. A letter from 57 of the 69 lawyers already familiar with such practices, from their work on terrorist cases, protested that extending this system would “represent a departure from the foundational principles of natural justice that all parties are allowed to see and challenge all the evidence relied on before the court”.

However shocking this may sound, though, it is already the system which operates in our family courts. Behind a wall of secrecy, they routinely turn all the familiar principles of justice upside down in just this way. Among the dozens of cases I have reported where children are removed from their parents, often for what appear the most absurd reasons, I have been astonished to hear how judges accept extraordinary claims by social workers and lawyers without allowing the parents to challenge them. Hearsay evidence is accepted in a way that would never be allowed in a normal court, and parents are condemned on evidence they are not allowed to see.

One such case I compared recently to the Dreyfus affair – which turned on evidence supplied to his judges but withheld from him. Yet in our family courts such travesties of justice are commonplace. I shall return to this particular case in a future column. I must add an update, however, on the case I reported last week, where a mother faced imprisonment because her teenage children, two of them in care, had been communicating on Facebook. On Monday, the judge decided to adjourn the hearing for two months. I can say no more –thanks to that secrecy which conceals abuses of justice just as shocking as anything David Davis and others protested about so eloquently last week.

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For years I fought against secret courts breaking up families. At last there’s hope