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June 28, 2013 by Robert Franklin, Esq.

The United Kingdom’s Daily Mail has long been on a campaign to open to the public the proceedings of family courts. So now that there’s been a change in the law on cases that are now secret, the Mail is happy to proclaim victory. Here’s the article (Daily Mail, 7/22/13).

And it’s certainly true that the new regulations will give the British people at least a glimpse of what their courts are doing with their tax money and in their name. But the changes fall far short of being enough.

As I’ve said countless times, when government agencies clothe themselves in secrecy, for whatever reason, soon the lack of accountability to the public results in corruption and incompetence within the agency. It happens as a matter of course. When public servants know their actions can’t be scrutinized by anyone but others within their particular agency, bad things happen.

The prime example of that in the United States is the behavior of child welfare agencies. On the pretense of protecting children those organizations almost invariably act in secret. For example, in Arizona, the only child welfare cases that require being made available to the press are those in which a child has died. But even in those cases, the facts are often obfuscated by an agency that seeks to keep its actions out of the public spotlight. New York’s child welfare agency routinely flouts rules requiring public access to files, routinely petitions the legislature for still greater secrecy which lawmakers routinely deny.

The result of course is that Child Protective Services goes essentially unscrutinized with predictably tragic consequences. As we see day in and day out, underfunded agencies try to stem the rising tide of child abuse and neglect. They have too few people to do the job and those they do have are underpaid. As a result, personnel turnover is high, so inexperienced and overworked case workers are required to make decisions about children that sometime are literally matters of life and death. Unsurprisingly, they often get it wrong.

But, bad as that situation is, it’s hardly the only thing that ails child welfare agencies. A pronounced distaste for fathers haunts the system as a whole. As the Urban Institute reported six years ago, when a child is taken from a mother due to abuse or neglect, CPS agencies seldom make any effort to locate the father despite the fact that doing so would be far easier on the state’s budget.

Then there’s the little matter of CPS’s role in trafficking children into foster care and then into adoption. The federal government pays big money to reward states for doing that, a fact that goes almost wholly unnoticed by the press.

If all that’s not bad enough, there’s the additional problem of incompetent management. Richmond, Virginia’s child welfare agency got audited recently and the problems it revealed would shock the most callous observer. Some 34% of files on children and their families simply couldn’t be located and morale was abysmal due to incompetent managers, several of whom were fired immediately after the audit came out.

The point being that all of that is allowed to go on because getting a peek at what child welfare agencies are up to is all but impossible. Secrecy requirements, supposedly in place to protect children, actually function to protect incompetent bureaucrats.

And so it is in British family courts and councils that more or less do what CPS does in the U.S. For years they’ve operated in secret for much the same reason (protecting children) and with much the same results – corruption and incompetence.

The Family Division makes thousands of rulings a year about whether children are adopted or put in care, and the access arrangements for separated parents – as well as ruling on contested divorces.

In the Court of Protection, life- or-death decisions about patient treatment or care for those unable to make choices are currently taken without public accountability…

Family courts are criticised for holding too many hearings in private and not publishing the results.

This can mean families whose children have been taken away unfairly are unable to tell their stories and get redress using the media.

On some occasions injustices are not exposed until the cases go all the way to the Court of Appeal.

Several secret care cases have been exposed by that court which has criticised the local authorities involved.

One, in 2008, saw a senior judge criticise East Sussex County Council for its ‘wholly unacceptable abuse of power’ by rushing through the adoption of an 18-month-old child and blocking a challenge by the child’s natural father.

Last year the Daily Mail reported how life-changing decisions about the care of children were routinely being made on the basis of flawed evidence.

A study for the Family Justice Council revealed that a fifth of ‘experts’ brought in to advise the family courts are completely unqualified but they can still make thousands of pounds a year in fees from local authorities…

Last month the Supreme Court launched a stinging attack on secret justice, saying it is ‘not justice at all’. Its president, Lord Neuberger, said hearing evidence behind closed doors was ‘against the principle of justice’.

That diagnoses some of the disease, so what of the cure?

A breakthrough in the battle against secret justice will see thousands more court judgments made public.

Councils involved in controversial care and adoption cases will routinely be named in court documents, along with expert witnesses whose testimony can decide whether homes are broken up.

The updated guidelines set out that the vast bulk of cases in both courts should result in a published judgment ‘unless there are compelling reasons why it should not’.

In all cases involving expert witnesses and public authorities, these should be named unless there are ‘compelling reasons’ not to.

Results of divorce proceedings are also likely to be published, unless they involve children – but names will not be released.

The best I can say about this development is that it’s a step in the right direction, but only a small one. What British citizens, interested in knowing what their public servants are doing, will now be able to know is (a) what the judgment in a case says and (b) who the expert witnesses are. That’s not nearly enough. Any judge with a pulse knows how to write a judgment that raises no red flags to anyone who’s not knowledgeable about the case, i.e. just about everyone. And who the experts are is not nearly as important as what their conclusions are and what they’re based on.

Then there’s that phrase “unless they involve children.” So now the British people can know who got how much of whose property in a divorce case, but they can’t know anything about how child custody was decided. Do I have to say that it’s the latter that’s important?

Face it, almost half of marriages end in divorce. That means that, for all practical purposes, every child in the country is either a child of divorce or knows many who are. The idea that there’s some stigma attached to divorce and child custody matters is absurd. It’s far too common for that.

What’s important is that the divorce and child custody process routinely cuts fathers out of the lives of their children. That’s made all the easier because there’s no public accountability on the part of judges in rendering their decisions. So what we have is a significant change in the public’s ability to know much of what it’s not interested in knowing. At the same time, the old secrecy laws will allow the system of depriving children of their fathers and fathers of their children to continue unabated.

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#CPS, #British, #Adoption, #NewYork, #Parents

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