Opening up the family courts: can the “doubters” ever be satisfied? By John Bolch

Family Law | 12 Nov 2013 0

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Another week, another speech by our busy President.

This time, addressing the Society of Editors which works to protect the freedom of all sectors of the media to report on behalf of the public, Sir James Munby took the opportunity to return to one of his common themes: transparency in the family courts and the Court of Protection.

He began by briefly setting out the legal position regarding reporting of cases. The starting point is that anyone should be able to enter, watch and report upon the proceedings in courts. There are exceptions to this rule in respect of proceedings relating to children and those lacking capacity to manage their affairs. These do not prevent the identification of anyone involved in the proceedings, but it is not permitted to publish anything which is likely to identify the child.

These rules can be either relaxed or added to by the court, for example by prohibiting the identification of other people involved in the proceedings, such as an expert or a social worker.

Having established that background, Sir James set out his position on the current debate about transparency:

There is a pressing need for more transparency, indeed for much more transparency, in the family justice system.”

Whilst acknowledging that nothing he was about to say was new, he then went on to discuss three aspects of transparency:

Firstly, the right of the public to know what is being done in its name. He said that this was especially important in care and adoption cases, which involved such a serious state interference into family life.

Secondly, the importance of having an informed media, to expose past miscarriages of justice, and to prevent possible future ones.

Thirdly, he stressed how important it was that public confidence in the family justice system is maintained or, if eroded, restored. He was realistic enough to accept that the remedy of more transparency is doomed to only partial success, as there will always be those who are convinced that the system is handing out ‘secret justice’, no matter how transparent it is. He also pointed out that the lawyer’s explanation that those who complain of ‘secret justice’ are confusing ‘privacy’ for ‘secrecy’ is lost on the complainers and, unfortunately, many members of the public.

Sir James then moved on to explain that the workings of the family justice system and the views of mothers and fathers involved in it are matters of public interest. He emphasised that it is important that aggrieved parents should be able to express their views publicly.

He said that it is not the role of the judge to seek to exercise any sort of control over the manner in which the media reports information, even if the reporting is biased and based upon misunderstanding or misrepresentation of the facts. This, he said, entails a more robust view being taken of ‘what ought rightly to be allowed to pass as permissible criticism’. If it happened that the publication is defamatory, then the remedy is a defamation action, and if the publication involves the commission of a criminal offence, that is for the criminal courts to deal with, not the family courts.

The only justification, he said, for an injunction to prevent reporting of a case is to protect the child or someone else’s right to respect for private and family life.

Sir James concluded:

“We must be open to the world – much more open that at present – in what we do both in the family courts and in the Court of Protection.”

The next steps on the road to greater openness were:

1. The introduction later this year of the final version of Practice Guidance regarding the publication of judgments;

2. Consideration of steps to allow the media access to at least some of the documents used in court; and

3. Consideration of appropriate amendments to, as well as the aligning of, the rules governing the family courts and the Court of Protection.

As Sir James indicated, there was really nothing new in his speech. Indeed, on several occasions he quotes himself from past judgments. However, he justified this by saying that these matters are so important that they bear constant repetition.

For my part, I’m afraid that I’m neither truly convinced of the need for more transparency, nor that it will make that much difference.

We live in an age where he who shouts loudest gets heard. Unfortunately, the ‘secret justice’ conspiracy theorists are the loudest, and it has suited many media ‘charlatans’ (as Sir James calls them) to jump on the bandwagon, in search of a cheap story and a sensationalist headline.

To me, much of the ‘greater transparency’ debate seems to be little more than a knee-jerk reaction to the ‘shouty’ people, in much the same way as politicians respond to popular calls for change to gain votes, even when they know that no change is really needed.

Whatever changes are made to open up the courts, there will still be the need for privacy in many cases, thus limiting the amount of change possible. I don’t actually agree with the way that Sir James gives up on the explanation of the difference between ‘privacy’ and ‘secrecy’. Rather, I think we need to keep explaining that to the public, and perhaps explain it in clearer ways.

But ultimately, as Sir James admits, nothing that he does to further open up the courts will satisfy the doubters. It will therefore be a futile exercise, which along the way could hurt many of those involved in the family justice system, and perhaps even those that the system sets out to protect.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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