Earlier this week the Family Justice Council devoted its annual debate to the topic of transparency in the family courts – asking Is the Family Court Open for Business? The debate specifically addressed plans by the President of the Family Division to permit wider public reporting of cases heard in the Family Court and the Court of Protection.
Deputy Children’s Commissioner Sue Berelowitz took part in the debate, and made some startling claims about the potential dangers of doing so.. She argued strongly that the family courts should remain private – emphasizing the term “private” rather than the media’ favourite term in relation to family courts – “secret”.
In remarks subsequently reported by the Daily Mail, she went on to emphasize what she claims are the risks posed to vulnerable children in the family courts, declaring:
“I have worked closely with profoundly distressed and damaged and trouble children all my working life. I know and understand their minds; it is my job so to do. I know how little it takes to tip a child over the edge.”
First thing this morning, in response, Radio LBC was on the phone, as I was literally reading the story, asking for my comments. It’s not easy to summarize the law as it currently stands in exactly one minute and give an opinion, but I had a go!
What I would have said, had I been given a little more time, something like the following.
What is the truth of this media furore? Are the family courts really secret? Are decisions really taken secretly, as opposed to in private. and does reporting them to the current extent really cause injustice and place children in grave danger?
The starting point in this discussion began on 29th April 2009, when the Family Courts were first opened to the press. Registered members of the press were permitted to attend any family court hearing which was not for the purposes of judicially assisted negotiation. I should add that attendance at a hearing was not the same as reporting those proceedings.
I spoke about the first stirrings of the press being allowed to report family court hearings in a speech to the Staffordshire University Annual Family Seminar the following year, when things were moving on with the Children Schools and Families Act 2010 coming into effect. This was designed to be implemented in two stages. This year the President implemented the critical second stage, which I recall many legal academics thought was mere wishful thinking that might never happen. Stage two prompted this debate.
No doubt the substantial press interest in high profile cases helped to speed up the process – for example, the Italian mother who was mentally ill and who had a cesarean section pursuant to an order obtained at the Court of Protection.
The National Youth Advocacy Service (NYAS), which supports young people, is a campaigner for more not less privacy in the family courts and shares the views of the Deputy Children’s Commissioner. It has produced its own report (worth a read) which found that of all 11 children interviewed, not one wanted the case reported in the media for fear of suffering negative feelings reading about it, and the potential harmful impact of such an experience. NYAC is so concerned about the move to greater transparency by the President that it has launched a petition aimed at attracting the requisite 100,000 signatures for a Parliamentary debate on the subject.
Reading all this first of all brings to mind Article 16 of the Convention on the Rights of the Child, which I mentioned at the speech back in 2010. This protects arbitrary or unlawful interference with children’s right to privacy, and the right to the protection of the law from such interference.
But many adults take a different view, and do not think the interests of the child are harmed by reporting judgements – instead they believe they are reinforced. I can guarantee this blog will receive a comment from a disgruntled parent pretty much once a week complaining about a “secret” decision taken in the family courts of this country, and I can also guarantee that there will be a comment critical of the “secrecy” of those courts. Equally certain is that some journalist with a substantial national media platform will frequently make similar unguarded assertions and complain bitterly about the decisions judges apparently take in “secret” and how this impacts adversely on poor, downtrodden families. MPs often make similar claims too, protected when they do by privilege in the House of Commons. Liberal Democrat MP John Hemming is one prominent example.
So what has been happening?
As a result of the new guidelines, it is now possible to read on the Bailii website many such judgments, and find out first hand what is really happening in the family courts. Judges are reporting cases and permitting them to be the subject of press scrutiny. On this blog only last week I wrote very critically of a decision involving a child and the local authority in Rotherham. Experts were named, the Judge fully explained his reasoning, it was all public and transparent, but what was not under the spotlight was the identity of the parties or any features that could identify them. It was in my view as a lawyer/reader, carefully balanced and very well done. It explained what was done and why and personally, I think that’s as far as we should go in public law cases.
Then there is the position in private law. Back in 2010 at the Staffordshire Conference I expressed my concerns at the amount of publicly available information that could surface with reporting of divorce cases. I think the situation has now become even worse. I recently wrote about Mrs Justice Roberts’s judgement in relation to media reporting of the divorce of Sir Chris Hohn – a spectacular £1 billion case. The judgment considered the balance to be effected between the rights of the couple to privacy and the public interest in a case where a husband was arguing a “stellar contribution.” It’s a detailed, careful judgement and well worth reading.
However, in my speech to the University I argued that couples going through divorce be entitled to absolute privacy – divorces are, after all, private law family matters and the participants may have had little choice but to take part in them. I personally don’t see what any of Sir Christopher Hohn’s business affairs, or those of his wife, let alone full details of the extent of their wealth, have to do with any of us – but of course, the development and application of the law itself is a matter for public knowledge. Surely in the interests of personal security, these couples and their children should be entitled to their privacy in the court system, no matter what informaton may be publicly available elsewhere?
Getting the balance right is important- I therefore support anonymizing all identifying details of a couple in judgments, in order to concentrate fully on legal principles without the distractions of personal details. I would go even further and argue that it should be done even in the appellate courts.
As an arbitrator I should now point out, there is another answer for concerned couples, anxious not to let the world learn the extent of their wealth, or the amount each of them ultimately receives – and that is to arbitrate, a process in which privacy is a given.
But what about the often shocking facts contained in children’s cases, where children can as a result be removed from their parents, put into care and/or adopted? Should those public law children’s cases be reported, where the most serious allegations can be made, documentation made available, and experts named, with all the resulting potential for a child to read about their case in a newspaper or hear it discussed on a radio, whether now or in years to come?
At the Family Justice Council debate, Mr Justice Newton spoke of his own experiences in the glare of the media spotlight, and declared:
“To put it really rather bluntly, if a judge can change the whole of someone’s life by the stroke of a pen, then there is a pressing need , an overwhelming need I would say, for openness.”
Meanwhile, Baroness Tyler, the Chair of Cafcass, spoke in favour of transparency, but also emphasized the need to protect children and the families. “Transparency,” she said, is “about being open and honest with the individuals in a family-court case.”
“But … I also want to say very clearly what I think transparency isn’t about. I certainly don’t think it is about exposing children or their families to the glare of publicity in any way. Shining a spotlight on a child’s needs is not the same as their story being told or, even worse, sold to the world.”
We also heard from James Turner QC, who spoke about the complexities inherent in the reporting of financial cases and whose views seem to be along the lines of my own.
Arguably, in cases involving children, their interests are paramount, and so such cases should of course be publicly available for debate. What we have on Bailli so far seems to get the balance right. The argument goes that the power of the Judiciary and the power of the State as exercised through local authorities, should be publicly scrutinized, along with the opinions of experts. I can see how this is being implemented and it’s hard to argue with the principle or the manner in which identifying features are being redacted from the judgments. The volume of the judgments on Bailii and the information contained in them is to my mind extremely helpful, sensitively done and therefore impressive.
But I’m conscious that I’m not the litigant in public or private law cases. It’s not my case that is being handled in this way and I’m not subject to those constraints. SO I’m interested in your opinions.
In private law cases, do you believe that the parties may be identified and all their dirty linen should be washed in public?
Are you for or against what is currently happening: transparency balanced against the interests of the parties, above all the child? Are you happy that important identifying features are being redacted from judgements and it is left to the judge in each case to decide what salient features may or may not be reported: is that the right balance?
Let me ask this too:- Would you go even further? Would you want to be able to freely discuss the case in the media, referring to documents and reports produced without fear of being held in contempt of court?