There’s still no such thing as a secret family court

Family Law|May 14th 2014

Back in March I posted here about Mr Justice Mostyn’s comment in the case Leicester City Council v Chhatbar & Another that: “The family courts are not ‘secret courts’.” As I said then, there is and never has been any such thing as a ‘secret family court’. It’s a message that some refuse to accept, and must therefore be repeated.

As it was by Mr Justice Mostyn himself, in a case he dealt with a month later. He began his judgment in A (A Child) with the following:

“I am giving this judgment in open court. It is important that I begin with that statement so that anyone who later reads the transcript of this judgment understands that proceedings of this nature are not done in secret by some mysterious court determined to prevent the public from knowing what is being done in its name.”

The proceedings concerned the question of whether a thirteen year old girl had the appropriate capacity to consent to the continuation or termination of her pregnancy. She had been found to be over 21 weeks pregnant and therefore a decision had to be taken urgently as to whether to terminate the pregnancy. Accordingly, the NHS Trust applied to the court for a declaration as to the girl’s capacity.

I will not go into the details of the case here. Suffice to say that Mr Justice Mostyn found that the girl did have the necessary capacity to make her own decision, and made a declaration to that effect. Her indicated intention at the time of the hearing was to have a termination. The consequence of the declaration was that if a termination was performed, there could be no question of any liability being imposed upon the Trust or those who were involved in the procedure.

Mr Justice Mostyn was also asked to make a reporting restriction order. This is another area that is misunderstood by those who think that such orders are another tool whose sole purpose is to maintain the secrecy of the courts. Mr Justice Mostyn did make an order, but its purpose was to protect the girl’s identity, for her benefit, not the benefit of the court.

If there was a note of exasperation in Mr Justice Mostyn’s opening words perhaps that was not just because the term ‘secret family court’ is bandied about so freely by the misinformed (many of whom, such as the ‘respectable’ media, should know better) but also because those same people appear to have no appreciation of the difficult nature of some of the decisions that our family judges have to make. This is also a point that I have made here previously, on more than one occasion – see, for example, this post.

It is one thing to be falsely accused of operating a system of secret family justice, but to be criticised for making what they consider to be the ‘wrong’ decision by people who have no appreciation of the difficult nature of that decision is to add insult to injury. I’m not saying for one moment that our judges always make the ‘right’ decisions – they don’t – just that the public really ought to support them in the service they are performing, rather than make absurd suggestions of ‘secret family justice’. With that support, then we might just end up with a family justice system that we can all be proud of.

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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Comments(10)

  1. nancy says:

    I am afraid I have to disagree. Judges make decisions in the Family Court which if it was open to the public would not be made. For example after hearing one sentence of evidence in a rape allegation the Judge declared the that there was no evidence the mother had been raped. The press would have cottoned onto to this pretty quick in an open court, with the consequent fallout in the tabloid press no doubt. I notice particually in cases where parents themselves are vulnerable, for reasons such as domestic violence, the outcomes ofton defy both logic and human rights. The Judgement in the above example has not been published.

  2. Winston Smith says:

    From what Alternative Universe has John Bosch flown in by dimension-crossing flying saucer?

    The Family Court has been a secret court since its inception in 1992. lady Elizabet Butler-Schloss and her fellow campaigners were particularly emphatic on the “confidentiality” when campaigning for the American-style F C.

    Why were they?

    Well because of the cosmic mega scandals of the late ’80’s/ early ’90’s, the satanic Abuse affaire being the major example. It was said this would discredit all child protection work. Apart from embarrassing the judges.

    Although some judges on some occasions are prepared to allow some freedom on some occasions as James Mumby is under pressure, secrecy remains and LA’s constantly seek injunctions to silence families and their supporters and the press.

    On one recent occasion a high .court judge issued an injunction on the foreign press and then tried to have it served on the ambassador or the country concerned.

  3. Kingsley Miller says:

    John, Who is Mr Justice Mostyn? An article in the Daily Mail, 6 September 2013, talks about, Top judge’s war on secret courts: Family hearings must be exposed to ‘glare of publicity’. I guess they are ‘making it up’ like the rest of the story too; ‘Sir James Munby, President of the Family Division of the High Court said parents of children taken into care should no longer be gagged by courts Judgment came in case of parents whose four children taken into state care Council tried to ban video of seizure in April by social workers and police. Sir James said there is a ‘pressing need’ for workings of family courts to be opened up to public scrutiny. kip

  4. Pete says:

    You say…

    “Mr Justice Mostyn did make an order, but its purpose was to protect the girl’s identity, for her benefit, not the benefit of the court.”

    I wonder if you might care to share your factual evidence to back this claim. How do know she was better off kept an unknown? You see, those who work (or worked) in family all make this claim, and many of us on the outside claim the contrary. When the only party with a vested interest in covering up misadventure is the one making this claim, you will appreciate some of night want to see the proof. Anytime in the next 24hrs will do. Many thanks.

  5. StuG says:

    Piffle. The courts are secret, unless a judge deems to the contrary. When they do, it’s hardly enlightening.

    “Mr Justice Mostyn did make an order, but its purpose was to protect the girl’s identity, for her benefit, not the benefit of the court.”
    – Rubbish. Nothing more than smooth, specious and deflective rhetoric. Reporting could have happened without identifying the child.

    “because those same people appear to have no appreciation of the difficult nature of some of the decisions that our family judges have to make.”
    Rubbish. The average joe public has a much better idea of the kind of decisions these kind of judges make than the judges themselves do. It is joe public who has to live with the decisions. If the decisions are difficult for these judicial self appointed gurus in their secret courts, with their monopoly on this business, it is because they are not properly qualified, not properly trained, working within an archaic system where bluster and narrative reign over fact, and they are too arrogant to evolve. They don’t monitor the outcomes of their decisions and have no interest in research.

    Any ‘respectable media’ has a duty to report on systems that can and do breed such official indifference. The media are the only current means ensuring that a tiny percentage of the wrongdoing in family law courts is not secret. John Bolch wants that to stop. Instead of mere claims that the courts are not secret, perhaps John Bolch can forget he’s a family lawyer and try to provide some real and substantial, rather than anecdotal (and weak anecdotal at that) evidence that they are not.

  6. Paul Taylor says:

    In 2004 the now Secretary of State for Communities and Local Government, Eric Pickles MP, tabled an Early Day Motion (869) titled “WORKING OF THE CHILDREN ACT 2004” in Parliament as follows:-

    “That this House urges the Government to remove the veil of secrecy from the workings of the Children Act 2004; considers that the closed door policy of the family courts breeds suspicion and a culture of secrecy which does nothing to instil confidence in those using them, which affects not just the courts but the social services departments of local authorities; and believes that it is possible to preserve the anonymity of children involved in the proceedings without the cumbersome rules which obstruct parents from receiving advice and support, which in particular works to the disadvantage of parents with special learning difficulty.”

    It carried the support and signatures of 215 MP’s, of which 106 were Tory MP’s, including the now Home Secretary Theresa May and former Children’s Minister Tim Loughton MP,

    It is therefore unclear on what your evidence is based with regards the “myth of a secret family court” when in fact 215 signatories (MP’s) called for removal of the “veil of secrecy” and “closed door policy” which breeds to all intents and purposes a “culture of secrecy” that still stands today as is the complete lack of confidence for those that have to use the Family Court.

    http://www.parliament.uk/business/publications/business-papers/commons/early-day-motions/edm-detail1/?session=2005-06&edmnumber=869

  7. Lucy Reed says:

    I think everybody is getting a bit confused here. The family courts are private. There is some justification in criticism of their previous reluctance to permit information to enter the public domain even where the privacy of the child / family did not justify it – although the term secrecy is based on a misunderstanding of the rationale. However, there has been a fairly shift in thinking and in practice and there is now recent guidance about the publication of judgments, and work ongoing about appropriate ways in which further information can be released to the press for the purposes of helping them report accurately and with a good understanding of the case. So there is ongoing change. There are more and more judgments published all the time – and no shortage of family court stories reported in the press. No doubt further progress is needed.

    In relation to this particular case – the judgment was given in open court. It has (self evidently) been published. The press have been permitted to report it. The only thing that is restricted by the RRO is the publication of the identity of the child. A child who was 13, who found herself unexpectedly over half way through a previously unknown pregnancy and was asking for an abortion. That is a pretty traumatic set of circumstances. I struggle to see any justification for naming the child – what purpose could it serve? It self evidently has not prevented reporting or discussion (contrary to what Stu G says).

  8. Nancy says:

    I believe until family court is opened up completely just with anononimity to protect the vulnerable miscarriages of justice will continue on a large scale. Quite frankly secrecy no acountability brings out the worst in human nature. Family court system is adult adult equivalent of bullying in the playground

  9. StuG says:

    Lucy Reed. I’ve just noticed your post above, my not being a regular visitor to this blog. You substitute ‘secret’ for ‘private’ as if that makes the whole secrecy argument go away. Be they private or secret, the workings and decisions made in those courts are nonetheless real, damaging and regularly breach human rights. The gravity of those breaches, and the needless pain inflicted on swathes of families and society as a whole are not diminished by the language or descriptions used. I notice it’s only the lawyers who seem to believe they can bat this one away with the use of semantics and nuances. It does not work here; you are not in a secret court now. Perhaps you’d like to give us some useful, free advice on why private courts should be able to inflict the harm they do? And the above case was no doubt a public law case, so I would wager you as wrong in your post anyway. Unless public law cases are private. Sounds better, doesn’t it; ‘private’ compared to ‘secret,’ sounds a lot more cosy and benign…nothing going on here, folks, private party, please move on.
    The publication of judgments shown to the public but made in secret does not solve the issue of the public’s lack of trust in the courts. Many of those judgements are simply are simply made to suit using the same kind of language tricks as you have yourself tried to convince with here. It’s not about reporting the facts, it’s about persuasion and keeping the dogs at bay. If there is no problem, why is there ‘ongoing change.’
    The degree of cases flowing through the courts means that the Press have no chance of keeping up. Please do not play the lawyer trick of using anecdotal evidence to drive a point. The local authority tried to gag her, applying to the same judge who played a decisive and lazy part (according to the released transcript of the hearing he lorded over ) in the ‘Italian Caesarian’ case. His new reputation clearly preceded him. (Never mind, that misconduct was nicely smoothed over by the President further down the line, in another judgment made public, and again in which the pretentious language does not pass any preliminary analysis).

    BTW, I was upset to hear how you were set up after writing your book. We need more of that kind of stuff from good lawyers. I hope the experience hasn’t caused you to adopt the kind of behaviours and writings more expected from a lawyer. For you and Mr Bolch, here’s a link to the definition of secret, perhaps it’s where we should have started:
    http://www.thefreedictionary.com/secret

    Now, what part of that does not apply?

  10. Nick Langford says:

    Secret, private, confidential, in camera, in chambers…. We can all play with words and their meanings ad infinitum. The information which comes out of the family courts is still very limited and tightly controlled, and gives little indication of how decisions were arrived at or whether they are just – we only have the judge’s word for that. Munby’s reforms are driven by a desire to change what he considers to be a false public perception, not a passionate belief in open justice. The huge data gaps identified by Norgrove, particularly relating to outcomes, continue. There’s no evidence that anonymity protects children, or that publicity harms them, but it does protect incompetent or ideologically driven adults. When Sections 12 AJA and 97 CA are repealed, then I think we can say the courts are no longer secret, but not before.

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