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.