For more than a century, there has been a tradition of maintaining confidentiality in the juvenile and family courts, where abuse, neglect, juvenile delinquency, and even paternity cases are held. In various forms, virtually every county or jurisdiction in every state has a specific court or judge designated to hear issues related to children and families. Interestingly, one notable exception to this is divorce and domestic relations cases, which are typically overseen elsewhere in the court system.
This predilection to confidentiality stems from efforts to protect the identities of juveniles and families in crisis from the public eye. It dates back to when print media was the main vehicle of public knowledge, to a long-gone era marked by different types of family crises and struggles. The world has turned many times since then, but the commitment to confidentiality regarding children remains strong.
But it is past time to reconsider the concept and the parameters of confidentiality, especially in the courtrooms, for a variety of reasons:
- Confidentiality has too often meant “secret,” even to the point where identities are known, and information is disseminated, but the system denies knowledge.
- With so many interconnected systems — law enforcement, judicial, mental health, education, health, public assistance, etc. — the identities of children and families are more widely known and information is more readily shared.
- When a child either commits an offense, or is the victim of an offense, the information is technologically recorded and disseminated – at times, immediately.
- Technology allows the media immediate access to information, meaning children and families are known to the system and the media almost concurrently.
- Extended family, close friends, neighbors, etc., will all know of the circumstances for the change in the family dynamics.
- Visit any juvenile or family court waiting area (many of which are unfortunately crowded) and the name of the juvenile or family is loudly announced – everyone knows.
- In an age where data driven statistics are needed for funding and program justification, there is a need for oversight and a review of the system for fairness, verification and understanding of processes.
One of the interesting issues regarding the confidentiality of these matters is that in many respects, various jurisdictions have opened the proceedings – for example, many jurisdictions have denominated serious matters (i.e., felonies) committed by juveniles to be open. Others have by law opened matters regarding child deaths (in some cases even “near deaths”) where abuse and neglect have been alleged or found. Some jurisdictions, by law, have opened proceedings in categories, but allow a presiding judge to close proceedings for various reasons. Still others have confidentiality requirements that have given judges broad latitude to open proceedings.
There are two notable instances where the proceedings in child welfare courtrooms have been open to the media – even allowing cameras in the courtroom. In 2004, the results of cameras in a juvenile courtroom in Indianapolis, Indiana, and two other Indiana courtrooms resulted in a documentary called “In the Child’s Best Interest,” which aired on Dateline with subsequent showings on MSNBC. And in 2014, cameras were in the Los Angeles County Family Court as shown on a documentary called “FOSTER.” It is fair to say that the result of both of those initiatives demonstrated not just the need for transparency and openness, but also their benefits.
Here are three compelling reasons why the issue of confidentiality should be re-evaluated and reversed:
- Interagency information sharing and access ensures that information is known and shared, even when designated and presumed confidential
- Child welfare agencies and courts often will not confirm information which is known by the media and public, ultimately diminishing their own credibility
- Child welfare agencies and courts are often unable to compete for and obtain adequate staffing, resources and support because, to comply with confidentiality, they are unable to publicly document their successes and defend against their detractors
Rarely does a police officer, prosecutor, probation officer, corrections official or judge receive criticism for the recidivism of repeat criminal offenders. Frequently however, child welfare caseworkers, supervisors and agency leaders are attacked professionally and personally over a single tragic incident or an instance of repeatedly-occurring abuse and neglect. Therefore, child welfare agencies and courts must be able to market their successes — and the good work of their staff — more publicly than they have before.
To paraphrase the author and historian Robert Leckie, “The victors of the last war use the same tactics for the next war because they were successful. The vanquished, however, look for new ways to fight the next war.” The battle for funding and public support requires courts and agencies to take a different approach if they hope to win.
In a subsequent piece, I will recommend ways in which the courts can responsibly become more open and transparent.
James Payne is a senior advisor with Public Consulting Group. He is a former juvenile and family court judge, and led the Indiana Department of Children’s Services for seven years.
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