Open justice but closed mouths?

The juggle to balance calls for a more transparent and open system of family justice against the rights of families and children to privacy has been the subject of significant debate in recent years.  The government issued a consultation paper in 2006: Confidence and confidentiality: Improving transparency and privacy in family courts.  Changes then came about in April 2009 to allow accredited members of the media to attend family court proceedings.  The rules on reporting, though, were not relaxed and the press were not allowed to see documents.

The Children Schools and Family Act 2010 was the next step towards extending transparency as it proposed that the media could attend adoption cases as well, and provided exceptions to the general rule that publication of information was contempt of court.  It also extended the right of publication of ‘sensitive personal information’.  These provisions have not yet come into force however and some consider that the legislation was put through in haste and would not satisfy the objective of increasing public confidence while protecting vulnerable individuals.

Next steps

The Family Courts Information Pilot then took place from November 2009 to December 2010 in Cardiff, Leeds and Wolverhampton to test the publication of judgments in family cases on the internet.  Views were obtained from the judiciary, magistrates, legal advisers, court staff, local lawyers, the local authorities and CAFCASS.  The consensus was in favour of the greater transparency and a better public understanding of the family justice system.  There was concern however among some lawyers, the judiciary and court staff about the protection of the families' privacy.  There was also no evidence of press interest but the information gathered was of value to policy analysts, researchers and those training professionals in the judiciary.  The national cost was around £500,000 in 2010.

Children's voices

The one voice that appears to have been missing from the pilot is the voice of the child. The sixth report of the Justice Committee on the operation of the family courts was published on 28 June 2011 and included findings by the Children's Commissioner in 2010 that:

  • 79% of children and young people in the public law sample, covering care proceedings and adoption proceedings and 91% in the private law sample, covering residence, contact and other private law disputes, opposed the details of their cases being published in the press.
  • They cited such reasons as issues being private, painful, embarrassing and humiliating.  They did not feel it was the business of newspapers or the general public and they feared being identified and receiving unwanted attention or being bullied as a result.
  • 63% were mistrustful of the press in general.

The Justice Committee's report also reported that the Magistrates' Association supported different ways of opening up the family court system, suggesting family court open days.

President's guidance

On taking up his appointment as President of the Family Division, Sir James Munby stated:

‘I am determined to take steps to improve access to and reporting of family proceedings.  I am determined that the new family court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’

Draft practice guidance on transparency in the family courts was issued by the President on 12 July 2013.  It provides that the a judgment in public law proceedings should be published ‘unless there are compelling reasons why it should not’.  Further that in all other family proceedings judgments may be published if a party or an accredited member of the media applies for publication, or if the judge considers that the judgment would be in the public interest.  The draft guidance provides for public authorities and experts to be named unless there are good reasons not to, and the only anonymity would be for the children and families.

Sir Martin Narey, speaking to The Today programme on Radio 4 on 24 July 2013, welcomed these changes so that more people are aware of the child abuse and neglect which necessitates the removal of children from their families.  He also feels that this will allow parents to fight their case with the information available in the event that they are unjustly treated.

Conclusions

Concerns remain however about both the cost and the potential impact of these proposals ie:

  • Will parties have the financial means to fund separate litigation on whether a judgment should be published or not?
  • Will children stop talking to the experts if they know that what they say can be published?
  • Will children vote with their feet and remain silent?
  • Will experts try to make a name for themselves by making their evidence more attractive?
  • Alternatively, will they be too afraid to express their true opinions for fear of criticism?

Only time will tell how matters will pan out and whether public confidence in the family justice system will really be improved by further opening up the courts.  It is not hard to imagine a breach of a child's right to privacy in the event that a judgment is published, given that in the child's local area (even with anonymity) their identity may be easily identified.  The question is what price are we prepared to pay for open justice?

Sarah French is a solicitor at Blake Lapthorn.

Twitter: @BlakeLapthorn

 

Relevant Articles
Area of Interest