The difference between secrecy and privacy

Family Law|July 2nd 2014

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.

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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  1. Nordic says:

    Dear John,

    Your differentiation between secret and private courts reminds me a bit of Bill Clinton’s redefinition of the term “sex” during his impeachment trial!
    Open courts are a fundamental principle of a justice system and many places a constitutionally secured right. Of course, privacy should be protected, but primarily through naming and identification restrictions. The closing of courtroom doors should be the exception, not the default. The public should not have apply to gain access, judges should be made to justify privacy on case by case basis and subject to clear guidelines setting the circumstances in which such exceptions are acceptable. As usual, this jurisdiction seems to get its principles the wrong way around and, in my view, it is absolutely fair to describe family courts as secretive.

  2. Pending Litigation says:

    When we were ordered into the secret family Court system and the secretive lengthy complaint system, we were advised by the Social Services (by letter) not to use a lawyer (quote) “in the spirit of resolving the issues” (we couldn`t get one anyway, as the only family lawyer in town was hired by the council (and that firm cited “conflicting interests”); we couldn`t get legal aid, even after numerous enforced family separations.
    My wife and I were searched for recording equipment in court, as the Court had heard (via the S/S) that we were recording the S/S (and had asked to record them at any and every time they attended our home over months) after we witnessed the S/S lying in front of police.
    The S/S fabricated unprovable and inaccurate evidence to get our children after we told the S/W that we would complain about her personal abuse of our human rights in our home.

    At Family Court (with CCTV) even my mother (a hospital worker for 40 years) was not allowed in Court). The lies of the S/S began, but by some twist of fate the Court accepted our material evidence over a whispering campaign and S/S (fabricated) claims, and after the S/S S/W lied by saying she was assaulted because I opened my door after the S/S had been hammering on if for the 20th~ time, and was trying to peer through the letterbox (S/S admitted), the family court ordered that the Social worker be changed, and we were free to go on a voluntary order to have `Child Assessments` which the S/S later claimed were not voluntary and could be extended at the arbitrary discretion of the S/S; and where the S/S claimed they did not have to abide by the Court ruling, but we recorded calls to the clerk of the court also for evidence of that.
    We even have a recording of the S/S claiming that they do not have to abide by the Human Rights Acts (one S/S manager was an `INDEPENDENT` `Chair` at a Stage 3 complaint meeting).
    So; if you can call that not secret, then we are right to stay well away from such people (as one MP suggests, to `leave the country`)…
    And the reason for all that over a year… until fleeing the country?
    One accidental self-inflicted hairclip indent no bigger than an average shaving cut.
    But of course, the 7-year road through the complaint systems and appeal courts is normal, and you have to become literally a barrister yourself to get any hope of a fair outcome; if that is indeed possible in the UK (with various Judges `Losing` case papers, and another supplying untrue information [is 18-months for a Judge to respond to a civil claim normal?]).

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