Here speaks a senior judge about your right to know what goes on in our family courts. “If you want to know my view on the transparency project, it is not supportive … I have said my piece to anyone who will listen to me … and been ignored by people who are driving this forward. And I speak as a virtual lone voice. But I strongly hold this view … and I am very unconvinced about the motives of some of the journalists. Do not forget what they do. They sell copy. They have careers to pursue.”
Until last week, publishing these words, uttered by a family judge in a Manchester family court just before he banned a journalist from a hearing she was entitled to observe, would have been a contempt of court. Thanks to a more senior, high court judge, the whole shameful episode is now transcribed and published.
It is fair to state upfront that judges have a tough job with huge responsibilities. In family courts, which operate in private, a single judge exercises draconian state powers. That makes them extremely powerful, and also vulnerable to getting things wrong. They can mess up the law. They can bully barristers. They can behave oppressively towards vulnerable family members. All these things have happened and sometimes there are appeals, and sometimes the appellants succeed. But for a judge to be biased is pretty much the worst thing they can be. The whole point of a judge is that they set aside their personal views.
In August, in that Manchester courtroom, behind closed doors, Judge Haigh seemed to do just the opposite.
When a judge makes decisions – as this judge appeared to do – based on their own clearly stated prejudices, in state-sanctioned privacy, with no journalists or indeed public to see, it is inherently dangerous to democracy. It is also vanishingly unlikely that anyone will ever find out.
The judge in this particular case was unlucky that Suzanne Martin, the journalist he excluded from his court on 21 August, knew he had got the law wrong, and unlucky that I then successfully appealed against his ban on reporting the following day’s hearing, when he did agree to let the press in.
For the last nine years I have been one of a handful of journalists who specialise in investigating the family justice system, reporting on what it gets wrong and what it gets right. Over hundreds of hearings, although I have occasionally seen judicial behaviour that has dismayed or angered me, bias is not something I have personally encountered.
And nor would I know of it, even now, had the barrister Charlotte Proudman not included explosive information about the hearing on 21 August in a statement submitted to my high court appeal. This meant my own barrister, Chris Barnes (representing me for free), could argue that the transcript of that hearing must therefore be produced. Thankfully, that persuaded the high court judge Mrs Justice Lieven to order it at public expense.
When the transcript arrived, my jaw hit the floor. Exceptionally, thanks to permission being given to publish it, it has been possible to drag into the light Haigh expressly pitting himself against the senior judiciary’s current efforts to inject more transparency into the family justice system. He also repeatedly, and without evidence, denigrates the media and slurs the professionalism of journalists trying to do their job in scrutinising state power. We have copy to sell, apparently. Careers to pursue. The problem is, that’s his personal view. It’s not the law.
Why does this matter so much – it’s just one judge, right? Wrong. The answer is, who knows how many judges in family courts, operating behind closed doors and benefiting from the secrecy conferred by a statute enacted in 1960, are making decisions from a place of prejudice – not just about media attendance and reporting, but about children’s and parents’ lives – as this judge apparently did? Out of sight and beyond effective scrutiny, family judges can, essentially, do as they please.
Frankly, this episode has led me to wonder what the hell is going on behind closed doors in hearings up and down the country when journalists are not in attendance, unable to secure transcripts after the event, and not allowed to read those secured by parties themselves for fear of everyone being held in contempt. Plenty of mothers and fathers contact me and other journalists every day to tell us about abuses of power in the family courts; having read this transcript, I am very much more inclined to credit their accounts.
In other courts, open justice is the rule. The press and public can walk in at any time. People can talk about not just the judges’ orders and sentences and juries’ verdicts, but also the way a case is managed by a judge, the conduct of the barristers, police and social services, and the evidence given by witnesses.
The reasons for this are so basic that they hardly bear restating: essentially, in a democracy, if we can’t talk about the way state power is exercised, we can’t analyse and criticise it, there is no accountability for poor or unlawful behaviour, we can’t improve things, toxic assumptions (for instance, about rape) go unchallenged, attitudes and legislation don’t evolve, and our justice system atrophies. The risks warned of in opening up the family justice system are simply not borne out: the success of the “transparency pilot” now operating in family courts in Cardiff, Carlisle and Leeds, shows that it is possible to report robustly while protecting families’ anonymity, and the fact that it’s been confirmed that more courts will join the pilot in the new year is a testament to the efforts of everyone who has worked within it.
The reason greater access to family courts is imperative is so that there are no “closed doors” where biased and unlawful judicial practice can take place unseen and unchecked. And what this transcript shows is that no matter how uncomfortable it may be for the family justice system, and this judge, to face up to the mess of this particular hearing, journalists are needed in our family courts – and should be welcomed.
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