The 'Secret' Family Court: Fact Or Fiction?

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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
The ‘Secret’ Family Court – Fact Or Fiction? to be hidden from public view. Public confidence in the justice system can only be assured if the courts and the evidence used in those courts are fully open to the public”. 19 Similar views continue to be expressed by journalists. They are not alone in holding those views. Even some family judges – and in particular some senior judges – have acknowledged the need to open up the Family Court and make its workings more transparent. Whilst it is, of course, essential that appropriate and robust safeguards are in place to protect children’s privacy and to ensure that the chances of them being identified are minimal, that does not mean that the restrictions currently imposed by section 12 of the Administration of Justice Act 1960 20 are either necessary or desirable. 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 passing I note, as others have pointed out many times, that it seems odd that whereas hearings in the Family Court relating to children are held in private, appeals to the Court of Appeal and to the Supreme Court in cases relating to children are held in public. Indeed, appeals to the Supreme Court are broadcast live and the recordings are available to view for 12 months after the date of the appeal hearing. 21 True it is that unlike the Family Court, the appellate courts do not normally hear oral evidence (an appeal is a review of the decision of the lower court not a rehearing) but that does not detract from the point that appellate hearings demonstrate that appeal hearings in cases relating to children can be (and normally are) heard in public. So far as I am aware, there is no research evidence which demonstrates that any appellate court hearings have led to a child being identified or to a breach of a child’s privacy. In my opinion, the reality today is that whilst there continues to be a compelling argument in favour of protecting the identity and privacy of children involved in litigation in the Family Court, it does not follow, either as a matter of logic or as a matter of practical necessity, that that means that such cases must always be heard, from start to finish, in private, or that 19 Your right to know (2007) published by Pluto Press, London, pages 125 and 130. 20 I shall consider section 12 of the Administration of Justice Act 1960 in detail in Chapter 4. 21 On 14 January 2020, the Law Society Gazette reported that, speaking at an event organised by the UK association of Jewish Lawyers and Jurists, the Master of the Rolls, Sir Terence Etherington, announced that: “We are hoping to get a change to regulation which will allow us to live stream family cases in the Court of Appeal. At the moment you cannot do that at all.” 20
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 41: The ‘Secret’ Family Court - Fac
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