Important judgment on transparency in the family courts

Family Law | 30 May 2018 1

The President of the Family Division refuses to allow disclosure relating to 2002 children case in May 2018 case. Blogger John Bolch tells us more…

The issue of what family court material can or cannot be published is now one of the burning questions relating to the family justice system. So much so, in fact, that it now has its own term (whether you like it or not): ‘transparency’.

Accordingly, when the President of the Family Division hands down a judgment on the subject, anyone with an interest in the family justice system will be keen to hear what he has to say.

‘Transparency’ may be a new term but, as we will see, it can be relevant to matters that occurred long before it was coined. The judgment of the President in G (A Child: transparency in the family courts), relating to a judgment handed down by Singer J in a children case in October 2002, also demonstrates that transparency can remain an issue long after proceedings have ended.

We are not, in fact, given many details regarding the 2002 proceedings, for reasons that will become apparent. Singer J described the case as a “long drawn out litigation of attrition”, between a mother (‘M’) and a father (‘F’) in relation to their daughter (‘G’) who was then just two years old (and is still, just, a child). The case involved an enormous amount of evidence – the court file is about a foot thick, and only contains a very small part of the material contained in the bundle of papers prepared for the trial.

As the President explained, Singer J’s judgment contained “much family history of an extremely personal, intimate, and, in some instances, exceedingly distressing nature, including much that would be distressing to G.” He made a catalogue of what he described as “some extremely unpleasant findings … some seriously grave findings”, and went on to refer to M’s “crusade, which has until the latter stages of this case been to exonerate herself and to demonstrate how wrong everybody else has been.”

Of equal significance for present purposes, the President went on, Singer J also had to consider in some detail the circumstances of G’s older half-brother, ‘B’, who was then aged 17 and living with his mother, M. G had another older half-brother, ‘BB’, then aged 15 and living with his (BB’s) father.

Singer J’s decision was that G should reside with F, and should only have very limited, indirect, contact with M. Crucially, he did four things in relation to the dissemination of the judgment:

“First, he accepted undertakings from both M and F not to communicate with the media. Secondly, he made provision for certain limited disclosure of the judgment to B. Thirdly, he reserved to the court (specifically himself) the question of disclosure of the judgment to G. Fourthly, and for reasons which he explained in his judgment … Singer J said that “there might be positive disadvantages in re-opening all these issues in [a] public forum.”
Lastly, in relation to the 2002 judgment, it is important to note that M never sought to appeal against any of this.

So we move on to 2016, when B made an application seeking disclosure to him of Singer J’s judgment, and of the expert reports relied upon before Singer J. In October 2016 the President made an order permitting B to have copies of Singer J’s judgment and of the reports of three experts referred to in the judgment, on the basis of an undertaking by B not to disclose the documents to anyone, except his legal advisers, without the permission of the court.

And then we move on again to the present judgment, handed down by the President on the 18th of May. This concerned B’s application for access to all the files in the proceedings, and an application by M to be discharged from the undertaking not to communicate with the media, and for permission to pass on a wide range of information to her children and the media, so that she could tell her side of the story.

In order to keep this post to a reasonable length, I will not recite the arguments put forward for and against each application, limiting myself just to what the President decided.

In relation to B’s application he concluded:

“In my judgment, the additional advantage to B of affording him access to all the papers he wishes to read is plainly counter-balanced by the adverse impact it would have upon F and G. I agree with [F’s counsel] that it would be wholly disproportionate. The ‘ultimate balancing exercise’ which I have to perform, therefore, in my judgment, comes down clearly against B’s more general request.”

Accordingly, he ordered that B should be permitted to have copies of only a small number of specified additional documents, subject again to B undertaking not to disclose the documents to anyone, except his legal advisers, without the permission of the court.

As to M’s applications, these were both refused by the President, for the following reasons:

1. There has been no significant change of circumstances, save for the passage of time, since M gave her undertaking to Singer J.

2. The anonymity measures proposed by M were unlikely to shield the other parties from the detrimental effects of being exposed to “some extremely painful and distressing family history.”

3. In relation to G, it must be for F and not for M to decide when, in what circumstances, and how G, whether still a minor or not, should be introduced to this part of her family history.

4. M had argued that she needed to show that she had suffered a miscarriage of justice. However, she had accepted that G should live with F, Singer J’s decision in relation to whether there should be contact was not affected by the expert evidence which M now wishes to challenge (in significant part Singer J’s reasoning was based on his assessment of M as a witness), and M never sought to challenge any of Singer J’s findings by way of appeal.

The President concluded:

“At the end of the day, in evaluating the impact on M of not permitting publicity and, in comparison, the impact on F, G, B and BB of permitting publicity, the balance which has to be struck comes down clearly, in my judgment, against permitting M to do what she would wish.”

You can read the full judgment here.

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. David Mortimer says:

      You cannot have accountability without transparency. Parliamentary accountability for the family courts is wholly theoretical while the system remains closed.

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