I am awed by the response to the family justice campaign that The Times launched last week. So many readers have e-mailed their MPs that I am getting calls from all three main parties. Several MPs have also raised their private concerns about how their own local authorities behave. It is uplifting to see democracy in action.
There are chinks of light already. Thoughtful people on all sides of the argument seem to accept that some degree of change is needed. Sir Mark Potter, President of the Family Division, gave broad but qualified support to many of our proposed reforms, although he argues strongly that the courts are private, not secret, and that families want them that way. Bridget Prentice, the Justice Minister, has announced that the Government will finally publish new proposals this autumn. Many social workers restrained the urge to hurl rotten eggs and supported our call for openness, while saying that the system is not as Kafkaesque as I fear.
Bill McKittrick, a social worker for 35 years and director of Bristol Social Services for ten, wrote to say that openness is a moral imperative in care proceedings where, he tells me, “lawyers get rich, social workers check and check, but children and parents get lost”. He says that “groupthink” can easily take hold. “The more people involved in a decision, the more dangerous the decisions are.” But he still thinks that mature professionals would get a better press if they gave their side of the story, being honest about the uncertainties involved in decisions, rather than trotting out the mantra of “never apologise, never explain”.
Two main arguments have been made against The Times's position. First, that the family courts should not be open to the press because the parents and children involved in cases dread being identified. Sir Mark, the heads of the Children and Family Court Advisory and Support Service (Cafcass), the Royal College of Paediatricians and Child Health and Family Justice Council have all made this point. It is understandable that families don't want the neighbours to know highly personal details.
The same argument was used by Lord Falconer of Thoroton last year to reject the recommendation of the Constitutional Affairs Select Committee, that the family courts should be open and parents no longer gagged. It is prompted by a visceral dislike of the press, which I can partly understand. Yet it is overdone. I see from the inside how concerned the press is to remain within the law. In rape cases and family appeals, reporting restrictions have successfully kept names secret while allowing evidence to be reported.
The halfway house proposed by many, including the Government, is to publish all judgments, but made anonymous. That would be a good step. But without access to the underlying evidence, it will be impossible to discover whether experts or social workers are making repeated errors. The public do not need to name names for justice to be done. But they do need to see the evidence on which people are effectively convicted.
The second criticism is that professionals do their job properly, and we critics do not understand the complexity they have to deal with. The Family Justice Council states that “the courts do not shrink from exposing poor practice by social workers and questionable medical evidence”. I cannot agree. In the past few years, Court of Appeal judges have made blistering criticisms of lower courts for relying on shockingly poor statements from social workers and experts. Family court judges can rely heavily on such people, in cases where there is no circumstantial evidence.
It seems Orwellian to ask us to trust people who are not subject to scrutiny to make correct decisions about cases which we are repeatedly told are too complex for us to understand. Years can pass between children being taken into care and a successful appeal. Those are formative years in which children are deprived of their parents, and sometimes adopted before an appeal is even heard.
Intriguingly, only one person challenged our view that the system is unaccountable. That was Sir Rodney Brooke, chair of the General Social Care Council. I have seen no evidence that the GSCC has disciplined a single social worker denounced by appeal court judges in the past few years. But I hope to be corrected. Nor did any one of the eminent bodies who wrote to us deny that miscarriages of justice occur. Some of the glib references have made miscarriages of justice sound like a standard occupational hazard. There are 550,000 referrals to social services every year. It makes the Birmingham Six fade by comparison.
Yesterday, Frank Lockyer wrote to point out that the authorities have closed ranks in response to our campaign. “The agencies defend themselves by persisting that things are done as they expect, rather than as they are,” he said. Mr Lockyer should know. His daughter was Sally Clark, jailed for killing two of her sons until her conviction was quashed, and who has since died. Mr Lockyer knows that his daughter was exonerated only because she could protest her innocence in public. In the family courts, gagging orders make that impossible. We cannot know how many Sally Clarks have lost their children. The volume of mail on this topic has been hugely welcome. Only one person has remained silent. Jack Straw, the Secretary of State for Justice, holds the power to change the system for the better. It would be good to know what he is going to do about it.