Peter A Davies LLB, Director NAAP

PACE and routine recording of criminal proceedings was introduced 34 years ago. Why is the routine recording of interviews and proceedings STILL resisted by the family courts?

In their 2017 update to their Operating Framework Cafcass have this to say:

2.31 We should have nothing to fear from covert recording. Our attitude should be, I am doing my job and I have nothing to hide. I can explain why I said what I said or why I did what I did. This is within the spirit of transparency in the family courts. We should always be transparent in our work, to meet contemporary expectations, including being able to defend whatever we say or write in a court under cross-examination, because we are working to a professional standard on behalf of a child. In this sense, we should expect that everything we say or write could become public knowledge.”

As intentions go there is not much to disagree with in these statements. But if you have direct or even indirect experience of the family courts you will know that these sentiments are highly aspirational and seldom, if ever, borne out by anyone’s experience.

Before the almost routine (there are a few exceptions) recording of police interviews of suspects became mandatory there were common allegations of inducements, fabricated and false reporting and admissions. Since the Police and Criminal Evidence Act 1984 became law, these all but disappeared. Paragraph 1.3 of Code E of PACE states:

“Recording of interviews shall be carried out openly to instil confidence in its reliability as an impartial and accurate record of the interview.”

We don’t pretend the police are perfect: as the recent wrongful prosecutions of rape suspects demonstrated graphically when the subsequent abandonment of trials because essential evidence, which proved the accused’s innocence, was withheld.

However, the fact that routine recording has still not been implemented in the family court – some 35 years after it was brought into criminal evidence as a matter of routine (which is incidentally about the time that the term ‘implacable hostility was first coined); the fact that our telephone interactions are routinely recorded (for training purposes); when DHSS interviews are frequently recorded and, when we routinely record our everyday digital interactions on social media; the antipathy and reluctance to routinely record family proceedings is now starting to stand out like a sore thumb. My kids are infinitely more important to myself, and just about every parent I’ve ever spoken to, than my council tax bill, my water rates or my electricity meter but in all these other cases communications are recorded routinely, to ensure honest dealing and best practice yet 34 years after the criminal court set a trend most of those benefiting from the lack of transparency in the family court are still kicking and screaming. The excuses really are sounding tired, lame and frankly insulting to those who are detached and arrogant enough to make them up besides being pejorative, belittling and demeaning of those they are aimed at. I don’t mind anyone making an honest buck but I do resent people extracting waste body fluids from me without asking. That really is taking the p**s!

Despite Cafcass’ proclamation from on high, that they ‘…should have nothing to fear’, the harsh reality at the coal face is that the mantle of secrecy, that is a stark feature of everyday life in the family court, does seem to be protected jealously in some quarters: most notably within Cafcass, the judiciary and the legal professions. Surely, the same social workers, bleating about not being believed, respected and being harangued by advocates in the family courts, should be clamouring deafeningly for a public opportunity to conclusively demonstrate their exemplary quality, professionalism and unrivalled knowledge in the family courts. Quite simply, why on earth are children and their families treated with far less regard and respect than the average lag? What conceivable and justifiable excuse can there be for hanging behind the criminal courts for at least 34 years?

I think it is worth adding one of my favourite quotes before we lose sight of the context of our concerns in alienation cases. In Re C, a moving case involving the prospective adoption of a little girl taken into care as a result of child protection proceedings, Munby J (as he was then ) observed:

‘…it must never be forgotten that, with the State’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.’

By contrast the most severe sanction available to the criminal court is to deprive a person of their liberty. Having met people that have experienced both the severance of a relationship with a child and the deprivation of their liberty the unanimous opinion has been that NOTHING is worse than losing your children. However, quite simply and yet again the average lag gets greater consideration for their human rights, more personal respect, more societal regard, more human consideration, more empathy, far more basic humanity and understanding than the average alienated parent or the children they are desperately doing their utmost to protect. This simply does not make sense.

Shortly after Sir James Munby took up his post as President of the family division, almost 5 years ago, he pontificated that:

There is a clear need for greater transparency in order to improve public understanding of the court process and confidence in the court systemthe public has a legitimate interest in being able to read what is being done by judges in their name,’.

Since beginning NAAP the feedback we get, from alienated parents who are ESSENTIAL users of the family court service, with literally nowhere else to turn, is that confidence in the family court system and Cafcass has reached a nadir or an all time low in terms of trustworthiness and credibility. Published judgments are the shop window for the judicial process and when we see the illumination of some of the goings on in the lower courts in judgments such as F v H & anor it provides a chilling reminder of how little we have in fact travelled in the last 5 years and how far there is still to go.

Even one case like F v H & anor in the family court is one too many and provides good reason for all concerned (except the appeal judge, the alienated parent and the child) to hang their heads in shame. However, after speaking about this case privately with some practitioners it appears that in reality there are even worse examples in the lower courts that have never seen the light of day. This is both worrying and astonishing but most of all utterly shameful because it tells us that there are people who have sat on their hands and kept quiet for their own benefit in preference to shining a light upon injustice and a national scandal.

A recent Cardiff University study revealed an initial surge in publication of the judges version of events from the higher courts after the guidance on publishing judgments was issued by Sir James Munby in January 2014, but sadly, proceedings in the lower courts are still seen as occurring in a black hole which is only occasionally partly – illuminated when a case is ‘sent upstairs’. However, old habits would appear to be clinging on for grim death as the rate of publication has recently slid downhill. The response to the guidance appears to have been variable and depressingly it appears that some judges have simply ignored the guidance altogether. Several reasons were suggested to explain the judge’s apparent antipathy, such as ‘concerns about children remaining anonymous, lack of time. Other possible explanations such as prejudice and non-cooperation seem to have been ignored.

More recently, whilst sitting in the court of appeal, Sir James Munby stated at paragraph 11:

“… the widespread distrust in too many quarters of the competence or even the integrity of the family justice system and of the professionals involved in it. Here, of course, it is the existence of the mindset rather than its foundation in reality which is the driving force.That said, it needs to be accepted, with honesty and candour, that there have been in recent years in the family courts shocking examples of professional malpractice which have been established only because of the covert recording of the relevant individual.

Here Sir James uses the term ’…of course…’ in order to brush aside, pour scorn upon and dismiss unceremoniously the ‘…mindset…’ of people who for very good reasons, that he later states, do not trust Cafcass and the family court to behave with honesty and integrity. Under the circumstances it is a remarkably pompous and complacent use of language that distances the court from its users and makes justice seem even more inaccessible. When covert recording have been justified in published judgments it is simply not acceptable to rudely dismiss other parents with well founded and similar concerns. If more judgments had been made public then it is likely that the parent’s distrust and suspicions would be more than justified. Is it a coincidence that Anthony Douglas also used the term ‘mindset’ when referring to the ambivalence of some of his officers to judicial findings of Parental Association.

It does seem to be a term that has crept into family court jargon as a euphemism for ‘prejudice’.

If Sir James and Anthony Douglas have ever really been sincere about intentions to improve transparency into the family court it is now high time that the routine recording of Cafcass interviews was brought in and implemented without further prevarication, hand wringing and disingenuous delay. The family court have a massive task on their hands if they are to earn the trust and respect of court users i.e the punters that pay their wages. It is one thing to increase the cost of court fees to pay for recording equipment. It is quite another thing to increase the costs whilst cocking two fingers at those who turn to the court as a last resort in order to have a relationship with the children they love.

It is already 34 years since routine audio recordings were introduced by PACE and those turning to the family court were first reminded that they would be treated with contempt, less respect and less regard than that afforded to lags.

Please do not add insult to injury and make it 35 years or more.

Copyright © 2018 by Peter A Davies LLB, Director NAAP

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