Family Court’s shroud of secrecy must be dropped

Opinion: The mother of the three children abducted almost three years ago by their father, Tom Phillips, has become increasingly vocal about the way the “system” let her down in her attempts to protect her mokopuna.

Known as Cat, she has said that there were warning signs that Phillips was capable of what she describes as a protracted episode of abuse. She has said that she tried to warn people in the “system”, but no one listened to her, she was ignored, and her concerns were minimised.

But she has not given details to corroborate or explain her claims.

I’ve noticed something interesting about the news coverage of her complaints about being ignored and dismissed by “the system”: they are often followed by a disclaimer that it’s a crime to report about Family Court proceedings involving the care of children in Aotearoa New Zealand.

The logical inference is that there were custody proceedings involving the Phillips family. That Cat warned people in the justice system that her children were at risk in their father’s care, but he was allowed unsupervised contact with them anyway – possibly even after he abducted them the first time in September 2021.

If this interpretation is correct, then Cat’s complaints are consistent with the research and reports issued by the Backbone Collective ( a national coalition of survivors of violence), human rights organisations and social scientists who research systemic responses to family violence.

In the Backbone Collective’s first report on the Family Court in 2017, hundreds of victims of domestic violence reported that the Family Court did not keep them safe, minimised their reports of violence and abuse, and forced their children to be in the care of abusive fathers.

There were also complaints that the secret nature of the court prevented accountability and resulted in people being punished for attempting to speak out. The United Nations Committee on the Elimination of Discrimination Against Women has also criticised Aotearoa New Zealand for the way our Family Court orders shared custody in cases in which fathers have histories of domestic violence or child abuse.

Of course, there is no way to know for sure whether there were Family Court proceedings involving the Phillips children and, if there were, what evidence was before the court, what recommendations were made by court psychologists or lawyers, or what the court’s decision was or its basis.

This is because Family Court proceedings in Aotearoa New Zealand enjoy a level of secrecy that is extreme by global standards.

It’s a crime for anyone to publish not only court records relating to Family Court proceedings but also any details of the proceedings from other sources if doing so would identify a child or a vulnerable person. There is no exception for journalists or academics, matters of public interest, or public figures (which the Phillips children now arguably are). The only exception is if the court itself grants permission for the publication.

Internationally, it is the norm for court records in cases involving vulnerable children to be held under seal. Journalists and academics cannot access filings, court reports and evaluations, or the transcripts of proceedings without serious justification and often a court order granting access.

Aotearoa New Zealand is unique, however, in prohibiting people from describing their personal experiences with court proceedings.

This shroud of secrecy is an anacronym, a vestige of a time when court proceedings were viewed as the fiefdom of the presiding judge, who unilaterally decided what the evidence was and what information was subject to release, not only publicly, but also on appeal.

In other countries, gagging someone who has been through Family Court proceedings and threatening them (or journalists) with criminal charges if they complain publicly about their treatment by a powerful public institution would be considered an unthinkable and unjustifiable restriction on the freedoms of expression and the press.

Voicing grievances against justice system actors and seeking law reform are at the core of the values of open justice and free expression. The idea that a person who receives a poor and unsafe response from an institution whose job it is to protect them is prohibited from bringing her plight to the attention of the community, voters, and members of parliament by criticising the court’s treatment of her is shocking and unacceptable in a free and open democratic society.
 

This extreme restriction on the free expression of victims who want to complain about their treatment in the Family Court is made worse by the fact that the court itself is the gatekeeper of its own secrets.

If there were court proceedings involving the Phillips children and court personnel made a mistake by disbelieving their mother’s warnings, minimising her concerns, or misunderstanding the risk that their father posed to their safety, those same courts potentially have the power to cover up their failures by gagging the children’s family and preventing them from seeking accountability.

This is a recipe for impunity and corruption.

Of course, journalists should not publish the details of Family Court proceedings for their salacious details or to satisfy prurient interests. Certainly, the internet poses a serious threat to privacy if anyone could unilaterally post the particulars of custody proceedings. But if mistakes were made and these children have been subject to a three-year kidnapping ordeal as a result, there is a powerful public interest in addressing those failures before another child is harmed.

If there were Family Court proceedings, Cat should be permitted to discuss what happened, for example - any evidence produced, responses, and who made which decisions.

If the Family Court will not grant her permission to do so, then Parliament should intervene and open up our secretive courts to public scrutiny.