The 'Secret' Family Court: Fact Or Fiction?

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Foreword His Honour Clifford Bellamy was, until his recent retirement, a distinguished Designated Family Judge on the Midland Circuit, and a judge notable for his intellectual curiosity and thoughtfulness as well as his formidable industry. He was also an ardent practitioner of transparency in the Family Court, for, although he is too modest to say so, he heads the list of Circuit Judges as the most prolific publisher of judgments on Bailii. Now, from his active retirement, he has given us as the matured autumnal fruits of his time on the Bench. We are indeed lucky, for he has given us an extended but incisive meditation on one of the most pressing issues which the family justice system currently faces: transparency. Our author tells us that this is not intended to be a text book. Modestly, he describes his objectives as more limited: “to undertake a critical review of the attempts that have taken place to try to improve transparency in the Family Court over the last 15 years, to try to explain why those attempts have either failed or have not been as successful as was hoped, and to make suggestions about a way forward.” That is an important task, in which he triumphantly succeeds, made all the more useful because it is, as he tells us, written from the perspective of a Circuit Judge. His treatment of these undoubtedly controversial topics is, throughout, as one would expect of our author, insightful, fair, balanced and judicious. He highlights the “very deep fault line” between supporters and opponents of greater transparency. “On one side of the divide there are those who believe that the transparency agenda has not gone far enough and that more needs to be done to open up the Family Court. On the other side of the divide there are those who believe that the transparency agenda has already been pushed too far.” Indeed. His conclusion is clear: “In my opinion it is no longer credible to seek to argue that open justice in the Family Court must be sacrificed on the high alter of guaranteed absolute privacy for children in order to ensure that justice is done. A more proportionate and balanced approach is required.” In this he reiterates the orthodox view, surely correct, that in the context of transparency the child’s welfare is not the court’s paramount consideration. Very usefully, he covers both the views of the Academy, where his analysis is both penetrating and, on some aspects, justly critical, and the experience in a number of other common law jurisdictions, both in this country and further abroad. In relation to this he makes the important point that: “none of these different models has been so convincing that other countries have been queu- xi
The ‘Secret’ Family Court – Fact Or Fiction? ing up to follow them.” As he observes, for example, of the courts in Victoria and South Australia: “their approaches to transparency could not be more different.” Addressing the question posed in his title, The ‘Secret’ Family Court – Fact or Fiction? our author notes, surely accurately, that the argument “has descended into a semantic debate about whether the Family Court should be described as ‘secret’ or ‘private’.” His comment is trenchant: “That debate is nothing more than a distraction. It is arid and pointless.” He says that it “is neither accurate nor appropriate to describe the Family Court as a ‘secret’ court.” He goes on: “... in my opinion, the greatest achievement of the use of the word ‘secret’ has been to undermine public trust and confidence in the family justice system ... that description is a fiction which diverts attention away from the real point.” What matters, he says, is that: “there is a lack of adequate scrutiny of what goes on in the Family Court.” In an illuminating passage, which I take the liberty of quoting at length because it is so important, he elaborates: “What really matters, surely, is that much of what happens in the Family Court is not ‘open justice’ in the sense in which that expression has been used and understood for more than a century? That needs to change. The whole focus of the debate needs to change. There needs to be greater openness, greater transparency, about the work of the Family Court. Transparency should be the default position for cases heard in the Family Court as much as for cases heard in any other court. ‘Transparency’ means one of two things – either that hearings are heard in open court or that the media be given the right to report what goes on in the Family Court – the right which they mistakenly believed was being given to them in April 2009. In any situation in the Family Court where transparency and openness are deemed not appropriate there needs to be clear, rational, cogent reasons, publicly stated, why that should be the case.” This leads to an important conclusion, that the key to meaningful progress is the repeal of section 12 of the Administration of Justice Act 1960: “The charge of ‘secrecy’ is, in truth, a full-frontal attack on section 12 … Viewed in that way, the media’s attack is fully justified. If only the media had spent the last 15 years campaigning for that section to be repealed rather than continually banging the drum of secrecy we may not now be in the position we are in, responsible reporting may xii
Page 1 and 2: THE ‘SECRET’ FAMILY COURT FACT
Page 3 and 4: Published March 2020 ISBN 978-1-916
Page 6: Contents Acknowledgmentsvii Forewor
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Page 14: Foreword be much easier and public
Page 20 and 21: Table of cases A G (Nova Scotia) v
Page 22 and 23: Table Of Cases Re J (A minor) [2016
Page 24 and 25: 1: INTRODUCTION “In the darkness
Page 26 and 27: Introduction Judge for more than 14
Page 28 and 29: Introduction Act has led to signifi
Page 30 and 31: Introduction do so for the sake of
Page 32: Introduction ency in the Family Cou
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