The 'Secret' Family Court: Fact Or Fiction?

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Open Justice As with the rights under Article 8(1), so, too, the rights under Article 10(1) are qualified rights. Article 10(2) provides that: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” There is no presumption that rights under Article 8 outweigh rights under Article 10 or vice versa. In every case where the point arises the arguments under Article 8 and Article 10 must be balanced. In 2005, in a case in the House of Lords, 15 Lord Steyn endorsed four propositions: “17. …First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…” (emphasis supplied). The following year the then President of the Family Division, Sir Mark Potter, summarised the position in this way: 16 “…each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. 15 In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47. 16 Clayton v Clayton [2006] EWCA Civ 878 at paragraph 58. 17
The ‘Secret’ Family Court – Fact Or Fiction? An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in the terms of proportionality is carried out.” In addition to the rights set out in Articles 8 and 10, it is also necessary to have regard to the parties’ rights under Article 6 of the Convention. Article 6 guarantees the right to a ‘fair and public hearing’. Article 6(1) provides that: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (emphasis supplied).” As the underlined words indicate, the Convention acknowledges that there can be legitimate and justifiable reasons for allowing an exception to the requirement to hold a hearing in public. The position in law is, therefore, more complex than may at first appear. It is simply not possible to contend that because open justice is a fundamental aspect of our commitment to the rule of law it inevitably follows that every court hearing must take place in public. There have always been exceptions – principled exceptions – that are not inconsistent with the importance of the general principle of open justice. As was said by Viscount Haldane L.C. in Scott v Scott, 17 the exceptions to the principle of open justice: “are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.” If it can be shown that in any particular case applying the principle of open justice would be likely to defeat the ends of justice, the need to ensure that justice is done overrides the principle of open justice. Expressing the position in that way suggests that the decision about 17 [1913] UKHL 2. 18
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
Page 9 and 10: The ‘Secret’ Family Court - Fac
Page 12 and 13: Foreword His Honour Clifford Bellam
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
Page 39: The ‘Secret’ Family Court - Fac
Page 45: Want to read more? Click to buy the

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