The family courts are regularly accused of being secretive. How many times have we come across the expression ‘secret family courts’, often in the less well informed media, and usually linked to some lurid story such as the court condoning children being forcibly removed from their parents. If you want examples, do a quick Google of that expression.
As I have explained here on two occasions previously (see here and here), there is, of course, no such thing as a secret family court. As Mr Justice Mostyn stated in the case Leicester City Council v Chhatbar, the family courts are not “secret courts”.
Mr Justice Mostyn could not have been clearer. However, despite this, there are still many who mistakenly believe that the family courts are secretive.
A judgment that appeared on Bailii yesterday hints at why this may be so, and the answer is quite simple: those who use the word ‘secret’ are confusing it with the word ‘private’.
The judgment was given by Mrs Justice Parker in the case Hertfordshire County Council v F & Others. The case involved care proceedings concerning two young children. In the course of the proceedings the father of the children made a number of serious allegations about various professional people involved in the case, and an account was placed online as to the reasons why his children were in care. Despite being “materially misleading”, that account elicited “a degree of supportive comment”. In the light of this, Mrs Justice Parker gave her judgment in open court with the Press present, so that her findings and the findings of the District Judge in the Magistrates Court who heard earlier proceedings could be out in the open, in order to address the misleading accounts which the father had given.
Accordingly, Mrs Justice Parker began her judgment by welcoming the current drive by the President of the Family Division Sir James Munby to encourage transparency in family proceedings. That drive of course includes the President’s transparency guidance issued last January, with the specific aim of countering the charge that the family courts operate a system of secret and unaccountable justice, by ensuring that more judgments of family law cases are published.
However, welcome though the transparency drive may be, Mrs Justice Parker was quick to point out its limits. She continued:
“Of course the essential privacy of families and children should be preserved. Publicity and transparency does not extend to disclosing the identities of the children involved.”
I don’t think that this should be at all controversial – the reasons for not disclosing the children’s identity are surely obvious. However, that can lead to Mrs Justice Parker’s next point:
“That may in some circumstances also mean keeping private – not secret; private – the identities of the parents because their identification can lead to identification of the children.”
There we have the vital distinction: not secret; private. I understand that it might seem quite a subtle distinction, but it is a very important one. Oxford Dictionaries defines the two adjectives thus:
Secret: Not known or seen or not meant to be known or seen by others
Private: Belonging to or for the use of one particular person or group of people only
On the one hand something that is secret is purposely withheld from general knowledge, for reasons which may or may not be clear. On the other hand, something that is private is not to be made general knowledge because it belongs to one person or group – i.e. the child and their family. In other words, something that is private is not public property.
So, the reluctance of the family courts to disclose private information should not be mistaken for the courts being secretive or, worse, be used by those who know better as evidence of secrecy. Privacy is something to which we are all entitled, and it is certainly not something that should be denied to children whose lives have already been blighted by the circumstances which lead to them being the subject of court proceedings.