I wrote about the case of Leicester City Council v Chhatbar & Another, decided by Mr Justice Mostyn, in a post here a couple of days ago. What I did not mention then were Mr Justice Mostyn’s comments in the second paragraph of his judgment.
He began with the simple statement:
“The family courts are not ‘secret courts’.”
Well, someone has got to counter the tide of misinformed people who will tell you that they are. By way of explanation, he continued:
“Since 27 April 2009, almost four years ago, the press has had full access to all family proceedings (apart from adoption and placement proceedings, proceedings under s54 of the Human Fertilisation and Embryology Act 2008, and judicial mediations in financial proceedings). Further, there is now a drive to report on the Bailii website all judgments concerning the state protection of children and vulnerable adults (see Practice Guidance (Transparency in the Family Courts)  EWHC B3 (Fam)). These measures are designed to ensure that by virtue of a combination of fair and accurate press reporting, and public access to the Bailii website, the public can learn about the arguments which are advanced and what is being done by the judges in their name.”
I would go much further. Contrary to what you may read elsewhere, there never has been a secret family court, at least not in the modern era. ‘Secret’ implies two things: that we are not told what they are doing, and that the reason for not telling us is that the courts do not want us to know what they are doing.
On both counts, the family courts cannot be called ‘secret’.
Firstly, we do know what they are doing. The family courts are not like some rule-less medieval court where the parties are subject to the whim of an all-powerful judge. They do not dispense ‘secret justice’ – we know exactly what they do, whether it be making a care order, granting residence to one parent or ordering one party to pay maintenance for the other.
Everything that the family courts do is subject to the law, whether it be statute, rules or previous precedents. If you don’t like what the courts do, don’t blame the courts, blame the law.
As to the reason why family courts are not as open as other courts, this has nothing to do with trying to hide what they do, as some conspiracy theorists would have you think. It is almost always, quite simply, to protect the children involved. Obviously, it is highly likely to be harmful to a child if details of court proceedings relating to their family circumstances become public knowledge.
It has, of course, recently been acknowledged that the courts may in the past have been a little too eager to protect children, and this is reflected in recent developments such as those referred to by Mr Justice Mostyn. So, whereas before there might have been a blanket ban on reporting a case, now reporting may be allowed, subject to certain safeguards, such as ensuring the anonymity of the parties and the children.
As Mr Justice Mostyn said, it is hoped that this increased openness will lead to the public understanding better why the family courts make the decisions that they do (and no, I am not saying that they always make the ‘right’ decisions). But this does depend upon accurate reporting by the media, as few members of the public are likely to read the law reports. At the end of his judgment Mr Justice Mostyn mentioned a report of the case in a certain national newspaper which said that the family had fled the country:
“…after a relative made an allegation to Leicester city council social services that Mr Chhatbar had a violent past. It is a claim the couple vigorously deny, but social workers warned them to split up so [the child] could live with [the mother] in safety or else they would seize the baby.”
As Mr Justice Mostyn pointed out, the report failed to mention that Mr Chhatbar had been convicted for an offence of domestic violence.
Clearly, there is no point in demanding openness from the courts if you are not going to report accurately what they do. The simple fact is that the family courts are not ‘secret’, and it is now easier than ever to see what they do. Failing to report that accurately is a disservice not just to those who work in the family justice system, but also to the public generally.