Nick responds to Justice Secretary's statement on transparency in the family courts

Nick argues to cease the secrecy of child protection

Nick Herbert (Arundel and South Downs) (Con): I thank the Justice Secretary for early sight of his statement. The UN convention on the rights of the child states that

"In all actions concerning children...the best interests of the child shall be a primary consideration."

Some argue that privacy in family courts is essential to that end, but would the Justice Secretary agree with me that the privacy of the child and the interests of the child are not necessarily always the same thing? Secrecy can also mean a lack of accountability, which in turn leads to poor decision making. Does not the terrible case of baby P remind us that where the welfare of children is concerned, poor decisions can have catastrophic effects?

The Constitutional Affairs Committee concluded in 2005:

"A greater degree of transparency is required in the family courts."

Speaking for the Conservatives in 2006, my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) said that

"we need to open up the closed doors a bit more."-[ Official Report, Westminster Hall, 12 January 2006; Vol. 441, c. 164WH.]

Would the Justice Secretary concede, in the spirit of transparency, that the Government have been rather less sure about whether to open the door? In 2006, the previous Lord Chancellor, Lord Falconer, made firm proposals to allow the press in. By 2007 he had changed his mind, arguing that "the welfare of children" was "at stake." Now the Government have changed their mind again. Within three years, the Department has changed its identity once, and its proposals twice. The Justice Secretary says that he has now reached a conclusion, but he also says that he is presenting proposals. Are they final?

We all recognise that this is a difficult issue, but is not the problem with secrecy that it ignores the issue of public confidence in the court process? The president of the family division, Sir Mark Potter, has spoken of

"an age of transparency...amidst largely misplaced criticisms of ‘secret justice'".

Does not the experience of countries such as New Zealand and, closer to home, Scotland, demonstrate that properly regulated transparency is perfectly workable?

May I press the Justice Secretary on adoption proceedings, about which he is consulting further? Does he agree that, while there should be a presumption against openness in the final hearings, in which delicate and sensitive decisions are made, it is important to have scrutiny in the opening stages, in which the work of social workers, the Children and Family Court Advisory and Support Service and the National Youth Advocacy Service needs to be monitored?

Does the Justice Secretary recognise the increased stress on children that may result from the presence of the media in court, and the fact that many professionals such as the National Society for the Prevention of Cruelty to Children have serious concerns about that? Is he confident that the press will be as compliant with reporting restrictions as they are, for example, in New Zealand? Will all journalists be allowed into court, or only those who are accredited? Crucially, what sanctions for breaching reporting restrictions does he envisage? The Government previously proposed new legislation to ensure strong sanctions to protect anonymity. Does that proposal stand, and will third parties with a legitimate interest be permitted to attend, as they are in other countries?

A key concern for families is that they are unable to raise their cases with the media, but it appears that the Government's proposed rules for disclosure will still prevent them from doing so. Will the Justice Secretary confirm that, and explain why he believes it is right to maintain that restriction? When the Government last proposed transparency in 2006, they recognised, in the regulatory impact assessment, that both they and the courts would face increased costs, including for additional security. Have the Government estimated these costs? At a time when the courts' budget is being cut, how will those costs be absorbed? Is not the fact that the Government are piloting the provision of written judgements in only three courts evidence of concern that the resource implications could be considerable?

There are important questions about how transparency in family courts will operate, but does the Justice Secretary agree with me that child protection can no longer be a secret business? It is time to shine a bright light of public scrutiny to ensure that the most vulnerable in our society are protected. With proper safeguards, transparency is a force for good.

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17 December 2008

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