Why we need to think before accusing the courts of being secretive

Family Law|October 30th 2018

The issue of court ‘secrecy’ has been very much back in the news this week, following the naming of Sir Philip Green by Lord Hain as the leading businessman accused by a newspaper of sexual and racial harassment. The issue of whether he should have been named when the Court of Appeal had granted an interim injunction forbidding naming him pending a full trial led to considerable debate over the issue of court ‘secrecy’.

Inevitably, much of that debate has been ill-informed, and guided more by preconceptions of the courts and judiciary, rather than about what the judges in the case actually said.

‏This tweet is typical, by someone who writes for The Observer, amongst other publications:

 “My timeline is full of melodramatic lawyers claiming that Peter Hain’s naming of Green is a threat to the very rule of law itself. Can’t they accept that Parliamentary privilege is a check against faults in the judiciary, in particular its perennial vice of putting secrecy first”

But we really need to think before blindly accusing the entire judiciary of ‘putting secrecy first’.

Before I explain why, I want to make a couple of things clear.

Firstly, in what follows I am only talking about family law. The reasons for this are quite simply that what expertise I may have on the matter is limited to family law, and in any event this is of course a family law blog.

The second thing to say is that the courts are not ‘secret’. When they restrict what may be reported about a case they do so for reasons of privacy, not secrecy. ‘Secrecy’ is the wrong term, often I suspect used by those who know it is incorrect, but use it still because of its adverse connotations.

Lastly, I am looking at the basics of why matters dealt with by the family courts should sometimes be considered to be private, rather than at the rules governing reporting of cases, which is a subject in itself. I will also try to discuss this in ‘non-lawyer’ terms.

OK, having got that out of the way I will now look briefly at the reasons for privacy in the family courts. There are a number of reasons, but four come up most often:

  1. Family cases deal with intimate private matters. Family law cases by their very nature often involve consideration by the court of matters of the utmost intimacy. Whilst the public has a right to know how the courts work, does it have a right to know about such matters? Even if it does, it is quite possible to report on such matters whilst anonymising the parties, thus giving the public the opportunity to know all they need to know about the case, and how the court dealt with it. The public doesn’t usually need to know the identities of the parties.
  2. Protection of business interests. This one crops up quite frequently in financial remedy claims, where one party has business interests. Obviously, it could seriously affect that business (which remember may be owned by others as well, and may also of course provide employment for others) if details of the affairs of the business are made public. In such circumstances the court must weigh up the interests of the business against the interests of openness, often siding with the former.
  3. Damage to reputation caused by unproven allegations. This, I suppose, is the Sir Philip Green argument. It can crop up in family cases in various scenarios. For example, one party may be making allegations of abuse against the other, which could obviously have a serious detrimental effect upon the reputation of the other party, even if they are not proved. Of course, it could be said that such an argument requires the aggrieved party to possess a reputation capable of being damaged – in other words, they need to be well known in some capacity.
  4. Protection of children. The most important reason of all. Whatever the parents may or may not have done, their children are innocents caught up in the crossfire. Publication of the facts of a case could have extremely serious consequences for the children, both practically and emotionally, and both now and in the future. Obviously, the law must do all it can to protect them from those consequences.

So it can easily be seen that there are often very good reasons for privacy in family cases. When the family courts require that cases, or information in them, are kept private they do so for legitimate reasons, and not simply out of any in-built desire to ‘put secrecy first’.

Author: John Bolch

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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