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The Dangers of Transparency in the Family Courts

About The Author

Hannah Larsen (Writer)

Hannah graduated from the University of Bristol in 2013, with a LLB Hons. Hannah works for an organisation issuing multinational employers with guidance on employment law and labour relations across the globe, and is undertaking her BPTC part-time at BPP Holborn.

In April 2013, Sir James Munby, President of the Family Division of the High Court and Court of Protection, stated in his article ‘View from the President’s Chambers’:

I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.

The comment comes in light of a wide spread concern that the public should know more about the justice being done in the Family Court. Cases such as the “forced C-section” (Re AA [2012]) in the Court of Protection, and the allegations of an adoption collusion raised by John Hemming MP in Parliament, have gained a huge amount of media and public attention as examples of the Family Courts acting in ‘secret’.

Many commentators have contested this view. For example, John Bolch, former solicitor and author of Family Lore, has argued that a wider-spread understanding of the difference between privacy and secrecy is required. He has sought to outline that secrets are those withheld from general knowledge, whereas privacy relates to information belonging to a particular group, i.e. the parties involved. Meanwhile, Mostyn J bluntly outlined that family courts ‘are not secret courts’ in his judgment of Leicester City Council v Chhatbar [2014].

Fundamentally however, the rule of law provides for open justice that is publicly accessible; it has been suggested that this is not what the public are receiving from the family courts. Lord Neuberger has reflected on this; during a speech given at the Hong Kong Foreign Correspondents’ Club in August this year, the president of the Supreme Court noted that although cases such as those regarding the protection of children can necessitate some secrecy, this should only be the case where it is absolutely necessary and that the secrecy imposed should be as little as possible. In effect, his words pave the way for a presumption of public hearings and records.

Munby has, as above, demonstrated a determinedness to give effect to the requirement for open justice and has already taken steps to redress the situation beginning with Practice Guidance, which took effect on the 3rd of February 2014. The Practice Guidance focuses predominantly on the publication of family cases, which forms the focus of this article, but this marks only the start of a lengthy plan to increase the transparency of the family courts, including a likely change to primary legislation. The publication of judgments will however prove to be an ineffective means of increasing genuine transparency and will ultimately undermine the aim, as this article will set out.

At present, only judgments which have been delivered in public or which have received authorisation from a judge may be published, marking an explicitly cautious approach by the courts (s.12 of the Administration of Justice Act 1960). Further, permission to publish judgments that are given in closed court are usually only granted if anonymity is provided to the subjects of the case. If a party requests that their or another’s identity is revealed in the publication, they must seek an order to that effect from the court. However, any information that identifies or is likely to identify a child is prohibited from publication pursuant to s.97 of the Children Act.

The Practice Guidance

The Guidance applies to judgments delivered by Circuit Judges, High Court Judges in the Family Courts or those who are exercising orders in respect of children or vulnerable adults as a result of their inherent jurisdiction. Judges are now required to order publication where they believe it would be in the public interest, regardless of whether an application has been made by any of the parties or the media. Additionally, cases that concern the granting of final care or supervision orders or contested fact-finding hearings, amongst others, are now presumed to be publishable if they have already been or are in the process of being transcribed (Practice Guidance, Schedule 1).

Where the parties to the proceedings or an accredited member of the media make an application for the publication of judgments, judges have the discretion to allow the publication. When deciding whether to grant permission judges are explicitly required by the Practice Guidance to consider any rights arising under the European Convention of Human Rights, any impact on criminal proceedings (current or potential) publication may have, as well as the circumstances of the case. For example, unless there are compelling reasons to the contrary, the names of the families involved with proceedings should not be published. Nevertheless, publicised judgments will reveal the names of social workers, lawyers and expert witnesses involved in the case.

Judgments are to be published on the British and Irish Legal Information Institute’s website (BAILII). Special consideration as to whether a judgment should be published on BAILII must be given if publication has been obtained subsequent to a party’s application. The effect of the Guidance can already be seen with an additional 140 judgments from being published between February and July 2014 when compared to the same period last year, as noted by Munby in his latest Consultation Paper.

Resulting and potential effects of the Practice Guidance

The Guidance potentially provides the public with the opportunity to look into the inner workings of the family justice system and understand why a particular decision was made in that particular case. Of course this aids the transparency agenda, allowing litigants to review their case as well as providing an insightful resource for families who may be anticipating court involvement in their lives. However, it is questionable whether the public will become aware that the judgments can be read and if they do, whether they will actually choose to read them. The Family Courts Information Pilot 2009-2010, in which all judgments of five family courts were published, revealed that only researchers and legal commentators used the judgments, contrasting to the expectation of interest by the parties involved and the media. Andrew Pack, author of Suesspicious Minds and family lawyer, provides a useful summary of this pilot amongst his discussion of the financial implications of publication. It is unlikely that the high cost of publication, as highlighted by Andrew Pack, will prove justifiable in light of the expected low readership level.

In the event that a judgment is read, regard must be had to whether readers will appreciate the legal and logical reasoning of the judgment. The courts have already encountered instances of misinterpretations of cases being distributed online by aggrieved parties, even without those parties having being armed with a written judgment to misinterpret and distribute. For example, in Hertfordshire County Council v F and others [2014] the father of the child involved published serious allegations online about the behaviour of professionals in the case, which the judge subsequently found to be very misleading.

Interestingly, in Hertfordshire, the aggrieved father had also made accusations of bias against the judge on the basis that in three cases he had read on BAILII, she had found in favour of the parties represented by Nicholas O’Brien (of Coram Chambers) who was appearing as counsel for the applicants in Hertfordshire. Mrs Justice Parker was able to dismiss such allegations yet it does highlight how the public may interpret published judgments.

Lucy Reed, barrister at St John’s Chambers and author of the Pink Tape blog, also raises the issue of readers’ subsequent behaviour in the comments to her summary of the guidance. In particular she mentions the potential for parents to send out links to the judgment on Facebook, where they are also likely to have pictures of, or have at least identified, their children, which would negate any attempt at maintaining anonymity. The welfare impact of identification is discussed later in this article.

The potential for publication to bring attention to the errors of local authorities, social workers or other professionals engaged in the family justice system must not however be overlooked and could prove to be an exceptionally valuable product of the transparency agenda. Even the errors of judges should be highlighted, as Lord Neuberger stresses in his aforementioned speech: open justice requires discussion about judicial processes and decisions.

Although I feel a strong sense of pessimism as to the number of people that will read judgments, the media uptake is sure to be much more prevalent where they are provided with an interesting factual basis on which to sell a story. The media’s communication of the, occasionally obscure or outrageous, factual background of cases will entice the public to read about the judgment, not necessarily the legal principles at hand. Only those stories which can be sensationalised and which will grab the public’s attention are likely to be reported; cases that are out of the norm, as opposed to those perceived as being dogmatic. Moreover, commercial motivations will dictate the media’s portrayal of a case. A headline that begins: “Local authority steals two children...” will grab more people’s attention than “Two children made subject to a care order...”

For example, in the “forced C-section” case, Munby recognised the media’s misreporting; reports of the case were ‘inaccurate’ and ‘tendentious’. Similarly, in contribution to a paper discussing media access to family courts, Dr Julia Brophy, who is a researcher of family justice at the University of Oxford, expressed serious concern of the harm that could be caused by the public reading misreported cases. As such, the publication of judgments may in fact result in a non-representative view of the family justice system, focussing only on those cases that provide the media with commercial revenue and aim to entertain the public. It is therefore questionable whether publication is an appropriate means of increasing transparency.

Lord Neuberger has noted that the media must be aware of the privileges awarded to them and that unfair and inaccurate reporting will amount to an abuse of freedom of expression. However, the practical extent to which courts can redress inaccurate reporting and its impact on the public is questionable. Munby described the inaccuracy of the media reporting that had occurred in his above-mentioned judgment, but this of course did not attract the attention and publication that the originating case had, leaving much of the public uncorrected in the views they had formed of the case and the family courts.

Transparency and identification

The publication of judgments clearly brings with it concerns as to the ability of the public to deduce the identities of the parties involved. As mentioned above, only the children and parents involved in cases will remain anonymous. Parents remain anonymous, not out of respect for maintaining their privacy, but as Mrs Justice Parkers sets out: 'their identification can lead to identification of the children'. This flows into the larger concept of “jigsaw identification”, whereby readers can piece together the information provided in the judgment to work out to whom it refers by relying on the identification of the local authority, the school attended and any ethnic or religious details. In small communities there is a realistic opportunity that readers will be able to identify the family involved. It also in these small communities that the media are most likely to be interested in running a story on a decided case in hope that the local readership will snap up the opportunity to see the intimate details of their neighbours’ private lives.

Fortunately, many people are aware of the devastating effects identification could have on children. The obvious risk of revealing the identity of children involved in a published judgments is that ‘[their] privacy is breached... forever’. Accordingly, in his Consultation Paper (as mentioned earlier), Munby explicitly requested views on the potential short and long-term impact of the Guidance on children and their families.

It should not be necessary to remind those involved in the family justice system of the paramountcy of the child’s welfare. Sir Nicholas Wall QC helpfully summarised this position in light of the requirement for “open justice”, during his lecture discussing the tension between privacy and publicity in family law:

Whilst the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, [...] the exceptions are themselves the outcome of a yet more fundamental principle that the object of the courts of justice must be to secure that justice is done. [...] It may often be necessary, in order to attain its primary object, that the court should exclude the public. The broad principle which ordinarily governs it, therefore, yields to the paramount duty, which is the care of the ward or the lunatic. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield.

The paramountcy of a child’s welfare overrides the demand to publish judgments and more attention should be paid to the concerns outlined above in the decision to publish a case and more widely, the transparency agenda. Worryingly, the Practice Guidance provided by Munby has the potential to undermine this position.

Is publication worth the risk?

The publication of judgments seems to provide neither the most effective or appropriate means of making the family courts more transparent for the public. Uncertainty as to whether judgments will actually be read, questionable usage of them by aggrieved parties and choice publication by the media, result in great pessimism as to the potential of the Practice Guidance to increase genuine transparency. Furthermore, any potential risk to a child’s welfare, whether now or in the future, clearly outweighs the limited chance that publication will increase transparency.

Nonetheless, Munby seems undeterred, questioning whether court listings should be altered so that they are more informative and enticing for the media, whether court documents should be given directly to the media and whether some family hearings should be heard in public. His consultation does, however, request responses discussing the effect of the Practice Guidance. Hopefully these responses will shed light on the fruition of my concerns.

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Tagged: Courts, Family Law, Rule of Law

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