Since forming NAAP our experience has shown that only a few, who have taken their case to the family court, will not feel that they have — to a degree — been subjected to any single one of the above. Some will feel that they can claim to have been subjected to combinations of the above and others may even have been subjected to all of them. However, this occurs daily in the family courts yet it rarely, if ever, seems to generate even a single letter of copy drawing readers attention to probably some of the most open secrets that the nation will hopefully soon be looking back on as one of the biggest scandals perpetuated during their lifetimes. We are of course talking about our family court system.
Today’s Sunday Times says that:
The revelation that Sir Philip Green stands accused of racist and sexist abuse of his employees is perhaps the least surprising story of the year.’
The Sunday Times also say that, ‘…the sheer scale of non-disclosure agreements (NDAs) signed by the alleged victims of his abuse…’ is remarkable.
All of us who have experienced the family court system can observe that the scale of this latest PG scandal pales into insignificance compared with the magnitude of the one which has been brewing in the family court system and the way that it has or has not dealt with pa for decades and even centuries.
The Sunday Times reporting is balanced and they discuss the advantages to some employees and employers when confidentiality agreements are used in the context of disputes between employers and their employees. However, secrecy and confidentiality in the family court system does not achieve any of these purposes for its litigants. The balance of power and advantage weighs heavily towards the system with scant regards for the interests of the people that have no remaining alternative other than to use the system.
Instead, the gagging of litigants in family court ensures that serious abuses of the system thrive behind closed doors and away from the illuminating glare of daylight. The corrosive action of secrecy upon our human rights and upon fairness is spelled out by the Sunday Times if we simply compare the hidden nature of family proceedings with Philip Green’s strategies:
Yet, as Green’s repeated use of NDAs shows, this misses the crucial point: NDAs almost always perpetuate an abusive culture. The only way to stop harassment and abuse is to call it out, whenever and wherever it is found. NDAs do the opposite: they create a legal demand for secrecy.
The next section of the Sunday Times report leaves readers in no doubt about the highly caustic nature of malign secrecy. Indeed, it has been with us for a very long time — at least since the bible was written. The only way to stop its use is to call it out.
This sends a loud signal to abusers that they can act with impunity. As the repeated allegations against Green show, when one NDA is signed to cover up abusive behaviour, another will inevitably follow, because the behaviour will be repeated.
The issue is not only abuse. We know that the use of NDAs has been widespread in the National Health Service, both when parting ways with incompetent medical staff and to silence whistleblowers. But because of the inherent secrecy in the existence and content of NDAs, we have no idea of the precise numbers, or what specifically they have been used to cover up. This is not just wrong; it is plain dangerous.
There is truth in the adage from the Bible: “There is nothing hidden that will not be revealed. There is nothing kept secret that will not come to light.” Green spent a reported £500,000 attempting to silence coverage of his NDAs; much good it has done him. The film mogul Harvey Weinstein’s NDAs have returned to bite him. But for every Green and Weinstein, who have journalists poring over their activities, there are thousands of small-time sex pests and bullies of whom no one has ever heard. NDAs give them the power to carry on.
The Sunday Times draws some obvious and clear conclusions that are transferable to the family court situation where secrecy can easily be used to cover up misapplication of the law, flabby reasoning, lack of expertise and downright incompetence.
The answer, as always, is transparency. Theresa May has said that NDAs should not go further than protecting client confidentiality and commercial interests, and that the government is considering reform. In particular, they should never be used to cover up alleged crimes.
However, the Sunday Times draws attention to another issue that is not aired anywhere near often enough. That is the rottenness that flourishes when peripheral areas are also deprived of illumination. The decay is not easily confined. It spreads out virulently. It’s roots are not confined to those that we deal with directly but they easily propagate within the growing mediums provided by the services and professions which feed directly off the family court system. The system is not confined to Judges, magistrates, Cafcass and litigants. An army of support staff in the court system also read judgments and maintain a compliant silence. Departments of social workers and their supervisors also see the judgements and file notes but have remained tight lipped. Solicitors and barristers, besides having direct involvement, also employ large numbers of support staff who also do not speak out. Next we have many experts who are called in. Some of them put their heads above the parapets to speak publicly of their experiences but not many do. Apart from this we have an army of groups and charities that have seemingly sat back and whined about their lack of funding whilst wringing their hands at the scourge of pa but have actually been onlookers watching a rotten system perpetuate itself whilst foraging for crumbs from the table.
The Sunday Times article summarises what we have said above, thus:
But the obligation for reform also lies with companies and organisations themselves. The existence of an NDA may be a secret, but no NDA is signed in secret. Lawyers know. HR departments know. Too many are complicit in their use. Boards and shareholders should be told how, when and why NDAs are being signed.
Attitudes to abuse have, thankfully, been transformed in recent years. The widespread use of NDAs comes from an era in which secrecy trumped openness. That must change.
At NAAP we cannot agree more with these sentiments. As a society we are now increasingly aware of how abuse, in all its manifestations, thrives in an atmosphere of silence, isolation and fear. All of that is changing but its progress is impeded by face saving and attempts to avoid the reputations of those who have benefited from a rotting system, have not spoken out and stood by idly to avoid their reputations being marred. At the end of the day all of this must take a back seat to the interests of the children who are at the core of the present system. It is high time that the interests of children were SEEN and not merely SAID to be paramount