Recent developments...

The issue of alleged secrecy in the Family Courts is regularly in the press.  For over 5 years the Family Court has been anxious to improve both the access to and the reporting of family proceedings and avoid accusations of secrecy and lack of accountability.

The President of the Family Division Sir Andrew McFarlane has recently raised this issue again.  In the May 2019 View from the President’s Chambers, he set out his intention to establish a ‘Transparency Review’.

The View sets out the following with regard to transparency:

This issue of ‘transparency’, namely the degree to which the workings of the Family Court should be more open to the public, remains one that is regularly raised in the Press and in discussion by those who seek to persuade The President to one view or another. It is important that the Family Justice system is as open and transparent as is possible, whilst, at the same time, meeting the need to protect the confidentiality of the individual children and family members whose cases are before the court.

It is now some time since the issue was looked at on a root-and-branch basis. In the intervening time we have operated the current arrangements where journalists may attend any Family Court hearing but not report the substance of the cases that they may observe. Following Presidential guidance, more cases are now regularly published on the BAILLI website.

In recent years full reporting has taken place on some important cases. In addition, the work of the Transparency Project, Dr Julia Brophy and others, together with the voices of young people who have been involved in the system, has produced a significant amount of further information and experience on the issue.

The issue of transparency...

It is important that the issue of transparency should be kept under active review. As previous consultations have demonstrated, it is an issue which divides opinion. The valuable process undertaken in 2006 by Lord Falconer when Lord Chancellor was entitled ‘Confidence and Confidentiality' thereby neatly teeing up the twin and competing priorities of enhancing public confidence in the system and, at the same time, maintaining confidentiality for the individuals who come to the court. As that process, now more than a decade ago, found, ‘Transparency’ may be a circle which is difficult to square.

I therefore intend to establish a ‘Transparency Review’, during which all available evidence and the full range of views on this important topic can be considered (including evidence of how this issue is addressed in other countries). The aim of the review will be to consider whether the current degree of openness should be extended, rather than reduced.

I intend to invite two or three respected individuals, not known as having a firm view on the issue, to assist me as fellow assessors in this process. It is my aim to conduct the review over the next 9 months with a view to producing a report and recommendations by this time next year.

The difficulty comes in balancing the legitimate public interest in transparency with the protection of the rights of those involved in any case, particularly children.

The Practice Guidance Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of the Sexual Abuse of Children in Judgments Intended for the Public Arena was published in December 2018. It contains two checklists.

  • The first is guidance on the anonymisation of personal and geographical indicators, “designed to promote consistency in anonymising judgments and to assist judges to avoid any risk of jigsaw identification of children… The aim is to produce a judgment which meets the requirements of any appellate court but also to enable lay readers and journalists to understand the case and how the court reached its decision”.
  • The second is guidance on the treatment of explicit descriptions of the sexual abuse of children and young people. Such guidance “seeks to raise awareness of the risk that graphic descriptions of the sexual abuse of children can be shared, worldwide, by paedophile networks”. Although the guidance “encourage(s) all judges to refer to these checklists when publishing any judgment in a family case relating to children”, advocates can also be alert to the issues on receiving judgment.

Draft guidance

Another problem is that the press (and public) are most interested in sensational stories and in cases that go wrong.  The run of the mill cases that we deal with every day and which are dealt with properly and fairly do not attract attention from the media.  Journalists do not always understand how the Family Courts operate.

The President has recently published draft guidance as to reporting in the Family Court.  I set out some of the key provisions below:

Reporting in the Family Court

1. Family Proceedings are normally held in private, however rule 27.11 of the Family Procedure Rules 2010 [‘FPR 2010’] allows duly accredited representatives of news gathering and reporting organisations to attend such hearings, save in certain circumstances where the court may direct that such representatives shall not attend [see r27.11(3)]. Since October 2018, a pilot scheme under Practice Direction 36J, extends r27.11 to allow “duly authorised lawyers attending for journalistic, research or public legal educational purposes” [in short, “legal bloggers”] to attend such hearings.

2. The right to attend hearings does not, however, grant the right to report on proceedings or public details of proceedings. Section 12(1) of the Administration of Justice Act 1960 [‘AJA 1960], which applies, provides as follows:

“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a) Where the proceedings –
(i) Relate to the exercised of the inherent jurisdiction of the High Court with respect to minors;
(ii) Are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) Otherwise relate wholly or mainly to the maintenance or upbringing of a minor…”

3. Further, Children Act 1989, s97(2) [‘CA 1989’] provides as follows:

“(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify –

(a) Any child as being involved in any proceedings before the High Court or the Family Court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
(b) An address or school as being that of a child involved in such proceedings.”

4. AJA 1960, s12 and CA 1989, s97(2) establish automatic restrictions on reporting and publication in family cases involving children although it must be noted that, whilst s12 prohibits publishing even after the conclusion of proceedings, restrictions under s97(2) cease on the termination of proceedings. In addition, the court has the power to extend reporting restrictions in appropriate cases using its inherent jurisdiction. Both sections also give the court the power to lift the reporting restrictions – see 12(4) and s97(4). Where the court is asked to lift/extend reporting restrictions, a balancing exercise is required between ECHR Articles 6,8 and 10. It is to be noted that an application to life or to extend the statutory reporting restrictions may lead to the making of a RRO.

The consultation on the draft guidance will close on 30 June 2019. With the recent headlines and interest in fake news and campaigns taken up by protest groups and MPS, there is likely to be renewed interest in the issue of transparency, linked to whether the court system is working.