Sunday, January 4, 2009

Britain, land of sunshine

    Long ago, when I was in journalism school, I was taught how fortunate American reporters are when they have to cover trials. Be glad you're not a reporter in Britain, we were told, where draconian laws keep the press out and bar reporters from publishing a fair proportion of what they manage to find out anyway.

    But in one sphere of justice, Britain is about to leap ahead of most of the United States. Starting in April, reporters will be allowed to cover Family Court proceedings, and accused parents will be allowed to talk about their cases, and provide documents. Journalists will not be allowed to name the families, however. That will leave Britain behind the 17 American states that allow reporters into these hearings – but ahead of all the rest.

    Of those states which have opened courts, not one has closed them again – even though courts often were opened at first as pilot projects or other experiments with "sunset" provisions. The courts have remained open because the Chicken Littles were wrong. None of the supposed harms to children predicted by critics actually happened, and over and over again, the critics became converts to openness. There are a variety of reasons for that, and they are discussed in detail in NCCPR's Due Process Agenda. See also the outstanding Pittsburgh Post Gazette series "Open Justice." And while opening courts has not worked miracles, it has improved the quality of justice in some systems, and brought justice to individual families in others.

    And yet, no matter how many times states succeed, every time the issue arises anew in the United States, the same critics – mostly people in the system who like wielding absolute power in secret – raise the same hypothetical scare scenarios.

    The opening of Britain's Family Courts was due in part to a concerted campaign by British newspapers, notably The Times of London. (In contrast, some American newspapers, normally so quick to wrap themselves in the First Amendment, have been surprisingly sanguine about this issue.)

    Among the stories told by The Times – to the limited extent allowed:

     A 17-year-old who approached the newspaper, wanting to tell his story. His sister had been taken, wrongly, before he was born. His mother was denied all chance to see her, then parental rights were terminated because the child had "bonded" with the foster mother. The boy almost was taken as well. But he couldn't say more because, as The Times reported,

"[H]e cannot be named until his 18th birthday and his social services referral sheet, which nearly separated him from his biological mother, cannot be published … {He] told The Times: "It's disgusting. It's my life and I want to talk about it, I want people to know so that maybe this sort of thing can be avoided in the future. It took me ages to get my court documents and even though they're mine, I can't make them public. Social services just get to cover things up and it's wrong."

    And then there's the case of the six-year-old who had a nosebleed. His father wiped his nose and took him to school. But his teacher noticed some dried blood. When the teacher asked what happened, the boy named his father and made a wiping motion. The father was exiled from the home for months. They were going to be reunited, but ultimately both the six-year-old and his younger brother were taken from both parents because, during supervised visits, the parents supposedly showed "inconsistent emotional warmth." (Yes, their system is just like ours.)

    Of course, the British child welfare establishment is no happier about the prospect of accountability than its American counterpart; they claim it's not a matter of secrecy, just privacy. But as Times columnist Camilla Cavendish, a reporter well aware that the errors go in all directions, wrote:

[I]f you are a parent wrongly accused of abusing your child, you do not want the kind of privacy which gags you from discussing your case. If you are a child tortured by a relative under the nose of the state, you do not want the kind of secrecy which protects professionals from scrutiny.

    In explaining his decision, Britain's Minister of Justice, Jack Straw, said that "Justice must be seen to be done."

    But I still think Judith Kaye, who recently retired as Chief Judge of New York's highest court, the Court of Appeals, put it best. Said Judge Kaye: "Sunshine is good for children."