family law


The News of the World, a Sunday tabloid, campaigned to allow parents to find out where paedophiles live, the so-called Sarah’s Law. Sarah Payne was a girl who was murdered by a previously convicted paedophile. The campaign has been partially successful and pilots are underway around the country. The police feared vigilantism. This has not happened because the scope of the scheme has been restricted to enquiring about specific individuals who have contact with one’s children. It is not an open list of paedophiles. The police carry out a risk assessment before deciding to respond.

There is a balance between public protection and the right to privacy. The risk of a child being snatched is greater in the vicinity of paedophiles. Even if the risk is low, many parents would like to know if there is a specific risk. Meanwhile society wants to rehabilitate the low-risk convicted paedophiles so they can rebuild their lives and put their past behind them. In these circumstances, the right to privacy gives way to the need for public protection. The right to privacy is surrendered upon conviction.

The mother behind the campaign, Sarah Payne, has been recognised for her extraordinary achievement in bringing about greater openness in hereunto private information. She has received an honour from the Queen. She has also recently become our first Victim’s Champion and will speak up for victims who are now at the centre of the criminal justice system. This new role raises a fundamental constitutional issue.

Emphasising victimhood marks a further departure away from justice for defendants. Currently, Victim Impact Statements are read out at the end of a trial prior to sentencing which capture the sorrowful nature of the offence. It is for the judge to decide on sentencing bearing in mind all aspects of the case. Under our legal system the sentencing is based primarily upon culpability, not on consequence. This is why death by driving cases cause so much anguish. A single moment’s inattention is not punished with life imprisonment. An eloquent impact statement should not lead to a more severe penalty than one where the family does not prepare a statement.

There is a further concern if the Victim’s Champion is also a progenitor of an eponymous law. To what extent is the Victim’s Champion pursuing a personal agenda? If the country is to introduce such a role, it should be defined in an objective way. What is meant by a victim? Who can speak for victims? What do victims need? How can the court experience be improved? What happens if the defendant is found Not Guilty? A Home Office Minister should answer these questions properly and after a due political process. Fundamental questions should not be left to a celebrated victim with a strong media presence.

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Proceedings in family courts are not open to the public. Most people would agree that any children involved should be protected from unwarranted publicity. Yet there is a problem if the decisions made by judges never reach the public domain. Judges need to be accountable for their decisions, particularly as the lives of children and their parents or carers may be changed forever. The public needs to have confidence in the way the family courts operate. A major breakthrough was announced recently when the Justice Minister, Jack Straw, confirmed that the media will be allowed to attend and report on family proceedings. This mirrors what happens already in the youth courts which deal with criminal offences. There remains considerable judicial discretion regarding the implementation of this arrangement which gives rise to uncertainty by those affected.

The new approach allows the courts to explain and publicise their decisions, but the reporting must be in such a way that the children involved are not identified. There is some doubt as to whether this new formulation is actually an improvement. With one breath the Minister said that more information would be available from the courts. With the next breath, he said that the landmark Court of Appeal case Clayton v Clayton was to be overridden by new legislation. This is important for it goes to the heart of what we mean by open justice.

The Clayton case enabled parents to make the proceedings public after the case is over. This is not a tricky situation where one side is using the press to influence the decision maker. The publicity makes no difference to the outcome of the case. What it can do, however, is draw attention, possibly adversely, to the judicial process and the judges themselves. This is clearly over-protective. If the judges are confident that they have made the right decision they should not have to fear public scrutiny.

It is rather unusual for a Court of Appeal judgement to be reversed by new legislation. The argument given is that the “welfare jurisdiction” of the court continues after the case is concluded. This is a dubious basis upon which to impose restrictions on freedom of speech. The vast majority of concluded cases never return to court, so the claim of ownership is excessive. It is not as if the children are wards of court. They are the responsibility of their parents or carers, not of the courts.

There is a prohibition on releasing any information which may identify a child subject to proceedings. This is quite a severe restriction if it is to be interpreted strictly. Nowadays it is possible to track down the names and details of most people and their children. The internet is a rich source of information: social networking, person search, company, school, genealogy, local news etc. Hardly anybody is anonymous anymore, least of all communication-hooked teenagers. Add to that the ability to contact “friends” and neighbours and names will be revealed.

There is another way of protecting identity without damaging transparency. Rather than trying to limit the information pipe at source, unblock it and let it flow. The media would actually only be interested in the celebrities or the rare “human interest” story. Complaints and grievances from disgruntled court users hardly ever get aired in the media. If the media go too far beyond the public interest, then they will have to face actions for breach of privacy.