The Big Question: What would be the result of opening family courts up to the public gaze?

Why are we asking this now?

The country's senior family law judge has given his support to proposals to open up divorce and children proceedings to members of the public. Sir Mark Potter, president of the Family Division of the High Court, has said he believes that in some cases the public would benefit from seeing at first hand how the family courts work. The results of a government consultation on a relaxation of court access rules in family cases are expected to be published by the end of the year.

What happens in our courts at the moment?

While there is an overriding presumption in favour of open justice, family courts have special rules to ensure children and divorce proceedings are held in private. Parliament and the courts have recognised that children need to be protected from harmful public scrutiny when the courts are deciding on their future care. Similar protection is afforded to adults who do not wish to have their private lives reported in the media or witnessed by the public from the court's gallery. Some family-related matters, such as maintenance orders, are already held in public in the magistrates courts where there is a presumption in favour of openness. But substantive divorce, care, custody (residence) and access (contact) matters are dealt with in the County Courts before a District Judge. These proceedings are held in private.

Who wants the rules changed?

Open justice campaigners, parent groups and some sections of the media believe the rules have established secret courts where justice is not being seen to be done. This, they argue, denies the parties a fair hearing and helps fuel suspicions of judicial prejudice. If family courts were opened up it would make judges, children workers and expert witnesses more accountable as well as instil a greater confidence in the civil justice system.

Who is opposed to greater access?

Social workers and other child protection experts believe that the welfare of children should not be put at risk by introducing new measures designed to improve the public scrutiny of the courts. They say that there are very sound reasons for ensuring that family hearings are held in private. The stigma of being identified as a child in care proceedings would, for example, only add to the child's trauma at an already difficult time in their life.

The privacy rules that protect children and adults in divorce hearings also help encourage a more inquisitorial system of resolving complex and very sensitive issues. Once the parties to the proceedings know that their evidence will be publicly disclosed it might lead to more adversarial conflicts aimed at protecting witnesses and parents from embarrassment but do nothing to serve the interests of the child. In divorce cases the family courts would become public forums for airing grievances and settling matrimonial scores.

What does the judiciary think about opening up family courts?

The majority of the senior judiciary would like to see reforms in the family court system that foster more openness. But very few, if any, support unrestricted access. Sir Mark told The Times yesterday that more open justice would help dispel some of the "myths and inaccuracies" surrounding the family courts. He said: "It is my firm belief that when people see these cases in action, and the extreme care with which they are dealt – and the fact that so much of what is said comes from interested and disgruntled parties not reporting the matter objectively – it can do nothing but good for the system."

While most of Sir Mark's colleagues would agree with this sentiment many are known to have reservations about the advantages of implementing such a policy. One senior judge has said that the value in showing the public just how well the family courts are already working would not be outweighed by the damage down to individual cases. District Judges who hear more of the coal face cases are known to be less sympathetic to the changes, as it would be their courts which would be most affected.

Is there evidence that family courts are coming to wrong decisions?

Controversial care proceedings cases such as those involving families on the Orkney Islands have shown that children experts do not always get it right. There have also been some recent, but rare, examples of injustice in the family courts. In early 2006, Mr Justice Ryder denounced Oldham Council for taking a baby away from his parents because of a doctor who "strayed from the role of expert into the role of decision-maker" and a family court judge who "failed to detect that that was what had happened". Two courts refused to let the parents seek a second medical opinion. It was a year, the most formative year of that child's life, before the Court of Appeal allowed them to call a neurologist who proved that the injury was caused before birth.

How do other countries handle access totheir family courts?

In Scotland, Canada and New Zealand, journalists are allowed to attend hearings involving children. Proponents of reform argue that children in these countries have not been damaged by family courts being open to the press. Nevertheless, this does not mean that the media is at liberty to report on all child cases in these countries. Each jurisdiction has its own set of rules that restricts the right of access in favour of protecting the lives of children.

So is the Government going to change the law?

No final decision has been taken. Ministers have already published two consultation papers on the subject which set out possible reforms. The most recent proposals rowed back from a public right of access and instead suggested modified reforms for greater transparency. At this year's Labour party conference Jack Straw said: "In the very sensitive area of the family courts, I think we can shed more light whilst preserving the imperative of the welfare of the child." Yesterday the Ministry of Justice said that a final decision was weeks away. A Ministry of Justice spokesperson explained: "This is an important and complex area of policy about which people have strong views. We must ensure we get it right. Children's wellbeing is at the heart of the family justice system."

So would we all be able to attend celebrity divorce proceedings?

No. Even if ministers opt for unrestricted access the judge hearing the case will still retain an absolute discretion as to whether the case should be heard in private on the grounds of interests of justice and the welfare of the child. The judiciary is acutely aware of the dangers of turning family courts into theatres for the entertainment of the public. The Mills/McCartney divorce hearings held earlier in the year were a timely reminder of how one party can turn the court system into a circus. A much more likely scenario is that more family judgements will be published in full and accredited journalists will be given the right to report on live cases.

So should family court proceedings be opened up?

YES

*Social workers would be more careful when deciding to take children into care

*The public would have greater confidence in the system because they could witness justice being done

*Higher visibility would make judges more accountable to the public for their decisions

NO

*It would turn the divorce courts into cirucuses. Witness the recent Mills/McCartney litigation

*Children would be damaged by revelations made about their personal lives

*A relaxation of privacy rules would discourage parents and experts from giving objective evidence