The 'Secret' Family Court: Fact Or Fiction?

Open Justice
whether a case should be heard in open court and not in private is a decision
that should be made on a case by case basis. However, it has long
been accepted that there is no reason in principle why a particular class
of case – for example, cases relating to children – should not routinely be
heard in private unless, in any particular case, the court directs that that case
should be heard in open court.
In a lecture given in 2018, 18 Baroness Hale explained the complexities involved
in determining when, and if so to what extent, there should be an
exception to the general principle of open justice. She said:
“We strive for coherence and principle across the whole legal field.
So we have to ask, first, what the general principles are, and second,
whether the family justice system is different from any other part of
the legal system, and if so why and how.
There are three relevant principles: First, there is the common law
principle of open justice…This leads on to the second important
principle, which flows from the principle of open justice. There is not
much point in allowing the media into the court room if they cannot
then report upon what they have seen and heard… [There] is a third
principle at stake here, and that is the right to respect for private and
family life, guaranteed by article 8 of the European Convention. As
with article 10, this is not an absolute right.”
Notwithstanding the above analysis, it remains the case that the holding of
Family Court hearings in private still leads to trenchant criticism by commentators,
most notably the media, who insist that what happens in the
Family Court is not justice but ‘secret justice’, by which is meant something
less than justice. That is a significant criticism which cannot simply be ignored.
The following passage, though written by journalist Heather Brooke more
than a decade ago, still represents the views of many journalists:
“One group…[which has] been particularly disadvantaged by the
closed system are the hundreds of parents whose children have been
taken away in secret care hearings. The default position for all court
hearings should always be for openness…If the courts are concerned
about privacy, then a judge already has the power to impose naming
restrictions; there is no need for an entire branch of the justice system
18
Openness and privacy in family proceedings, the Sir Nicholas Wall Memorial Lecture.
19