Legal Village

Openness in the family courts

Posted 23/10/2008 by Joanne Edwards

The family courts in England & Wales hear over 400,000 cases every year. Decisions in each one of these will have a profound impact on the families involved. They provoke strong and emotionally fraught reactions in the way that they deal with the complexity of human relationships and the thorniest moral dilemmas. It is no surprise that there is a strong public interest in family law and this is reflected in media coverage of the subject.

All divorces must go through the courts as part of the legal process to end a marriage but, for most couples, this is largely an administrative exercise. Most make their own financial arrangements which are then ratified by the court. Where couples cannot agree, the court will consider what a fair outcome should be and make an order.

Children cases are more complex. If parents cannot agree about an important issue relating to their children, one parent may make an application to the court to make a decision. Sometimes, an independent judicial decision based on parental and expert evidence is needed to settle the dispute in the best interests of the child.

The current position and calls for change

Currently, a network of laws and rules regulates the confidentiality of family law proceedings. Most family cases are heard in private, with the exception of proceedings in the Family Proceedings Courts, the Court of Appeal, and the House of Lords. In theory, anyone with an interest could apply to the judge for permission to attend. This has led to growing criticism that the family justice system operates in secret and away from public scrutiny. Concerns have been voiced, mainly in relation to children cases. Fathers, in particular, complain of a bias against them. They complain that the confidentiality rules prevent them highlighting in the media the injustice they feel they have suffered. 

In an interview with The Times on 20 October 2008, the president of the family division, Sir Mark Potter, spoke for many members of the judiciary when he reiterated his support for the liberalisation of the current position in relation to transparency. 

Sir Mark Potter’s comments follow years of lively debate about this topic.  In July 2006 the Department for Constitutional Affairs published a consultation paper, Confidence and confidentiality: improving transparency and privacy in family courts. The responses of interested parties were published in March 2007, with support for more openness a consistent theme.  In June 2007, the Ministry of Justice published a second consultation paper, Confidence and confidentiality: openness in family courts – a new approach, in which it was indicated that it had been decided not to proceed with proposals to allow the media into family courts as of right.  Instead, it was said that the focus should be on the information coming out of the courts, with judges required to provide a copy of the judgment or a decision summary in certain types of case.  It is the recommendations arising from the responses to this paper which are expected within the next few weeks.

There have also been cases which illustrate family court judges’ support of more open justice.  In a Court of Appeal judgment in June 2006 in the case of Clayton, the Court concluded that the interests of the child concerned in protection from identification might dictate that the prohibition on publication of Children Act proceedings would continue beyond those proceedings in certain circumstances.  There was “little mischief and possibly some benefit, in the father being able to tell the world that he and the mother had reached an amicable arrangement over the child’s care”. The father should not, however, be permitted to make a “self-serving film designed to exculpate him in relation to his criminal activity in abducting the child”.  The father was prohibited from taking the child to Portugal and involving her in the publication of any information relating to the abduction.  More recently, following extensive coverage of the story, the trial judge in the McCartney litigation opted to make public his detailed judgment in order to end speculation about the background and the ultimate outcome. 

In most cases where reporting of the judgment is permitted, the parties involved and their children are protected by anonymisation. An exception was the case involving the then Home Secretary, David Blunkett, where the judge gave permission for publication of all the details in the hope that this would lead to more accurate reporting of a case which was already in the public domain and was being inaccurately reported. 

Two other considerations are important in considering transparency in family proceedings. First, witnesses may be deterred from giving evidence in cases if they are exposed to adverse publicity.  This is true not only of witnesses of fact, including the parties themselves, but also of expert witnesses who fear they may be pilloried in the press as a result of giving evidence in controversial cases. 

A second issue is that of disclosure of sensitive financial information in financial proceedings.  This may range from concern on the part of individuals that their personal financial circumstances will be made known to all and sundry to disclosure of commercially sensitive information which may be in breach of a director’s duty to his or her company and/or shareholders. 

Proposals for reform

At present, a final decision about how the family courts will be opened up is some weeks away.  The second consultation paper in June 2007 retreated from the suggestion of a public right of access and instead mooted reforms which focused on information coming out of courts at the judges’ behest, rather than people being allowed in to court.  More recently, Justice Secretary Jack Straw hinted at changes to the family courts system at last month’s Labour Party Conference, when he said that “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”.

In the comments he made to The Times, Sir Mark Potter said that he advocated allowing the media into children's care cases, where there was “the strongest case” for greater transparency.  The president supports allowing similar access to private family disputes over money and children, at the judge’s discretion subject to the protection of the anonymity of any children involved, and where appropriate the parties. Judges should be able to exclude the media in certain disputes between couples where there may be “prurient” interest because of their “sensational” nature but where the facts were of no relevance to the public.

The rationale behind Sir Mark Potter’s suggested changes is clear: to try to put to rest concerns the public has about the family justice system.  The president reasoned that “In an age of transparency and amidst largely misplaced criticisms of ‘secret justice', it is clear that the public... should have confidence in the judiciary.”  Referring to some of the 'myths' about family justice, he said that it was “simply untrue” that parties were unaware of the case against them (for instance, when children were being removed into care) or that they were denied seeing the evidence before the courts. They also had the right to appeal and were entitled to legal representation and legal aid.

Openness – the issues

The key question is whether any reform proposals will succeed in balancing access to court proceedings with restrictions on reporting and whether reporting will be in the best interests of children and the parties involved in proceedings. 

Openness for the media

Admitting journalists to the courts would demonstrate a theoretical openness but they, understandably, are only likely to attend newsworthy hearings which will usually be in the higher courts. Proceedings in the Family Proceedings courts are rarely attended by journalists even though they are able to attend. Aggrieved individuals seeking publicity for more routine cases may be disappointed. 

While anonymised judgments are now regularly given in public with permission for them to be reported, take-up by the media has been relatively low. One reason for this may be the anonymity rule as many would consider the identity of the person concerned to be a central part of the story. This may mean that any hope that greater openness will lead to more public education about the work of the family courts could be misplaced.

It may be thought that allowing journalists to attend hearings and/or receive a copy of a judgment in a case would have the advantage that both sides of the story would be told. Through hearing the evidence or reading a copy of the judgment, the journalist will be able to form a more balanced view on whether there has been an injustice worthy of public attention. However, a cautious approach may be necessary as the evidence given in court may be incomplete.  Reports and other evidence may be submitted to the judge and the parties in the case without a witness being cross-examined in court. Reporters may still not have the full picture.

Openness for the public

It has been suggested that one approach might be to allow close family and non-legal advisers to attend court to support the parties, but that the line should be drawn at opening the court doors to the general public. Concern to protect individuals from breaches of their privacy is enshrined in Art 8 of the European Convention on Human Rights. Removal of Art 8 protection may allow friends and neighbours to get to know the most painful family secrets – sexual abuse, drug addiction, a revelation that the person thought to be a parent is not actually related to the child. The need for openness and accountability has to be balanced by protection of the individual from unwarranted intrusion.  Art 8 rights have to be balanced against the Art 10 right to freedom of expression.  In many cases, upholding one person’s right to privacy may be at the expense of someone else’s Art 10 rights. 

The guarantee of anonymity

Previous consultation papers about the transparency issue have made clear that the guarantee of anonymity is to be central to any changes implemented, referring to “clear and effective penalties” for those who breach anonymity. Can the threat of post-disclosure penalties deliver guaranteed anonymity?  The major weakness in such a plan comes from the fact that sanctions are already available and are rarely used. The creation of a system of openness which prevents individuals being named is unlikely to satisfy organisations such as Fathers 4 Justice, who speak of a “moral duty” to expose the workings of the family justice system.  Given their demonstrated willingness to face punishment for their actions, it is unlikely that the threat of penalties will be effective to guarantee anonymity. While journalists are likely to abide by rules to prevent the naming of individuals, they do not universally accept the rationale behind them.

The popularity of the internet for information-sharing and gathering support for a cause is likely to make it very difficult to control the publication of confidential information. Sanctions are unlikely to deter individuals who believe they or a family member have been treated unfairly. Many of those campaigning against “family court secrecy” believe that any discomfort felt by those named in publicity is more than counter-balanced by the public’s right to know.

There is a fine balance between the perceived need for greater transparency in the family justice system and the need to protect the identity of individuals, especially children, caught up in the highly sensitive proceedings which are heard by the family courts. Family lawyers await with interest the Ministry of Justice’s announcement about changes to the family court system.

Joanne Edwards is a partner at Manches.