The 'Secret' Family Court: Fact Or Fiction?

The ‘Secret’ Family Court – Fact Or Fiction?
law systems…Consequently…the exclusion of the public from proceedings
has objectively to be justified. It is not good enough for it to
be said that we have always done it this way so it has to be right. That
principle of open justice applies to all courts and in principle the family
courts are not excluded from it, although for good reasons which I
shall set out later, many family cases…require confidentiality.”
Open justice comprises two key components. The first is the right of the
media and the public to be present in court to observe justice being done.
The second, which follows naturally from the first, is the right of those who
are the subject of the judicial process to discuss their experiences, freely and
openly, outside court. In the Family Court, both of these rights have been
severely circumscribed by a mixture of practice, statute and rule. If such restrictions
are lawful, that raises two very important questions for the family
justice system. First, what does ‘open justice’ mean? Second, what are its
limits? Our understanding of open justice and of the limits of open justice
are central to the issues with which this book is concerned.
In 2014 an authoritative analysis of the principle of open justice was given
by the Supreme Court. 5 It is appropriate to quote from the judgment of
Lord Reed at some length:
“23. It is a general principle of our constitutional law that justice is
administered by the courts in public, and is therefore open to public
scrutiny. The principle is an aspect of the rule of law in a democracy…society
depends on the courts to act as guardians of the rule of
law…
25. The principle that courts should sit in public has important implications
for the publishing of reports of court proceedings…[It] is by
an application of the same principle that it has long been recognised
that proceedings in open court may be reported in the press and by
other methods of broadcasting in the media…
26. The connection between the principle of open justice and the reporting
of court proceedings is not however merely functional. Since
the rationale of the principle is that justice should be open to public
scrutiny, and the media are the conduit through which most members
of the public receive information about court proceedings, it follows
that the principle of open justice is inextricably linked to the freedom
5
A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 – see in particular paragraphs
23-41.
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