Amongst family judges it has become quite the rage to open up your court and welcome in – well, probably a few lonely souls and a couple of local journalists, limited to those cases where a parent has been sounding off on Facebook or trying to take a child from hospital against medical advice. Judges have been instructed by Sir James Munby, President of the Family Division, to send their judgments for publication on a semi-official site (BAILII). (To confuse anyone who needs to refer to a case, there are now three categorisations of family case, below the appellate courts; and that does nothing to promote transparency.)
And all of this is because it is thought varied hacks up and down the land will want to know what judges discuss in their judgments and how they – often at around 100 paragraphs length – write about the family cases before them. Are journalists queueing up to sit through long-running care cases; or poring late into the night over yet another variation on how to apply adoption law to the facts?
I doubt it. But – whether or not – family judges are troubled. A ‘confusing road-map’ (per Roberts J in Cooper-Hohn (below)) was how she described what was the law to let in people who might want to hear what is going on in her court. Meanwhile children, who are involved in some of the cases, show a healthy disdain for journalists: more savvy than the President, certainly. They assume that journos do not tell the truth; and hey are unimpressed with Sir James’s efforts to ‘please the media’ (‘Irreconcilable differences/ Young people, safeguarding and “next steps” in “transparency”’, Dr Julia Brophy Family Law [2014] 1685).
So what is the law in all this? Over the summer I set out in a couple of blogs a few thoughts on privacy in family proceedings ‘“Transparency” and the common law’ (29 August 2014) (‘Transparency Made Simple’ and ‘Reporting restrictions in financial remedy proceedings: a review after case management in Cooper-Hohn v Hohn’ (6 August 2014) . I suggested that family lawyers were making overly complex the issue of privacy – or, ‘transparency’, as it is euphemistically called: ie privacy’s opposite. Indeed, it seems fairly clear to me they are both looking through the family court privacy telescope from the wrong end; or straining needlessly on a small, if troublesome, gnat.
Privacy at common law
The true position at common law – and it is common law that defines the law in this area – is that there are three grades of civil court hearings:
(1) Proceedings in private, in camera, call it what you will: no one but the parties, their representatives, court staff (including the judge) is allowed in (and see for a check-list, Civil Procedure Rules 1998 r 39.2).
(2) Proceedings in open court, where reporting must be seen through certain statutory restraints, mostly relating to children: Administration of Justice Act 1960, Children Act 1989 s 97 etc (as fully explained by Sir James Munby P in Re J (A Child) [2013] EWHC 2694 (Fam)); and see words of Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469.
(3) Proceedings in open court.
Proceedings at (1) are in open court till it is ordered to be closed. In practice many forms of family proceedings – involving money, children etc – will be in private (as now). Other proceedings may not be in private (eg finding of fact in care proceedings); but the press (if any turn up) will need to have a Leveller weather eye on what they publish (and as Munby J reminded them in Spencer v Spencer [2009] EWHC 1529 (Fam) it is not for judges to advise the press what they may and may not print: thereupon Mostyn J (as he then was not) named three of his pigs after the learned judge: ‘pompous’, ‘self-regarding’ and ‘pillock’, he told us)).
Proceedings at (2) are protected – so far as it goes – by statute. And (3) is the ‘open court principle’ (as explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618) protected by the common law and now confirmed by European Convention 1950 Art 6(1).
All this is too easy; so the rule-makers introduced, first, Family Procedure Rules 2010 r 27.10. This rule asserts that all proceedings covered by FPR 2010 shall be ‘in private’, save where the rules or an ‘enactment’ says so or where the court directs otherwise. One look at the court’s reasoning in Allan v Clibbery [2002] EWCA Civ 45 shows that provision to be self-evidently unlawful (a rule cannot change the substantive law: Jaffray v The Society of Lloyds [2007] EWCA Civ 586). Secondly, FPR 2010 r 27.11 creates a maze of sub-rules (I say unlawfully: ie the law does not permit the rule makers to make such a rule); and that maze seeks to define who may and who may not attend at ‘private hearings’.
In reality the subject divides into two aspects: first, attendance at court and by whom; and, secondly, what may be published by those who attend private hearings. Rule 27.11 seeks to deal with the first. Children, Schools and Families Act 2010 s 11 is designed to deal with the second. And in my view neither of these two provisions are good law: the second (very simply) because it has not been brought into operation (and probably will not be).
Artificial arrangements for publicity
And what of r 27.11 and its intention to restrict attendance in court? The courts and media seem to regard themselves as bound by rr 27.10 (privacy for all family proceedings) and by r 27.11. (Anti-democratically, it applies only to certain press-representatives: the rest of us certainly cannot get in.) The powers of Family Procedure Rules Committee, which made these two rules, are set out under Courts Act 2003 ss 75-76; and there is nothing obvious in sections 75 or 76 to permit that committee so radically to override the open court principle set out in common law.
But surely I must be missing something? The press has access to expensive legal advice. Would they not have spotted a chink in any limitations on their right (protected by Human Rights Act 1998 s 12, and European Convention 1950 Art 10), if it were illegally overridden by a rule committee. I cannot see where the power exists to override the open court principle, save in cases of where privacy is ordered (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417) or where the statutory restrictions on publicity (eg AJA 1960 s 12) apply to make it a contempt of court to publish certain information (mostly about children).
If we all – especially the judges – take the open court principle as the correct end of the telescope – ie the starting or default position. First, to define privacy or open court, put lenses in the telescope (1) for permissible privacy and (2) for statutory limitations, especially for children. The rest – insofar as anyone but the parties is actually interested – is in open court.
David Burrows
18 December 2014
I think the ‘open justice’ principle _is_ the starting point for judges. In any cases where there is a balance to be struck between rights of freedom of expression and rights of privacy, they always seem to start with the first.
Isn’t the problem that s 12 AJA 1960 specifically refers to Children Act proceedings being held in private? Because those are the types of cases that are being complained about by some as ‘secret’. The court rules follow s 12 but allow the media to attend.
Even back in Scott v Scott in 1913 which is the classic judgment on open court, they excepted ‘wards and lunatics’ because of the private nature of their circumstances.
I agree: unfortunately my original heading – PRIVACY IN FAMILY PROCEEDINGS – got edited out.
For children proceedings – see two articles in dec [2014] FamilyLawJo privacy must be the starting point. The thing is to recognise the open court principle; to define the categories of case [children is a given: ie JD’s ‘wards and lunatics’]; jettison the ultra vires bits (eg FPR 2010 rr 27.10 and 27.11) & stop MunbyP’s sexing up to the press (which is what children thoroughly distrust: see Brophy in ibid FamLawJo). If there is privacy then there is no question of an unprincipled discrimination divide: ie you’re in the press club or you’re the rest of us (Bentham must be howling in his grave).
The main bulk of family proceedings must show why they are to be private (a point Holman J fully understands, from his recent judgments: he would not have needed 110 paras for a case management decision in Cooper-Hohn last July, I am sure). And then MunbyP must face it: for the massive majority of family proceedings, no one but the parties – and a tiny group of saddo lawyers – care what is going on anyway.
Oops sorry David, that was me that edited it!
‘no one but the parties – and a tiny group of saddo lawyers – care what is going on anyway.’
I’m not sure this is true. Most people don’t know that a child is taken by Social Services at least every hour, around the clock, every day of the year… and if they were told, would probably not believe it. They would have difficulty believing that the reason ‘future risk of emotional harm’ could possible hold legal water, or that dyslexia, or having what is described as a narcissistic personality, or non-cooperation with the Local Authority, might be enough to put you at risk of permanently losing your children.
There are open groups on Facebook of up to 6000 strong ( e.g. UK Social Services) brimful of parents screaming incoherently about having lost, or being on the point of losing, their children and not knowing where to turn for advice. They are pregnant mothers fleeing abroad to avoid having their children taken from them.
It is a benighted society we live in if nobody cares about this but is prepared to give £100 million to a bear with an eye patch. I think the lack of interest/ incredulity stems more from the way it is presented – and the amount of misrepresentation that seems to be permitted to Social Services and to judges.
It is a scandal that is about to burst open.
Rough Rabbit, where do you get your statistics about the rate of removal of children? It would be good to link to them. I’d be very surprised if any child was removed simply because of dyslexia, and personality disorders are rather different kettle of fish.
We are very well aware at the Transparency Project that there are lots of open groups where parents are turning for information and support, and that in some cases parents don’t get good or reliable information. Hopefully in time this site will be a good place for them to look, and the Child Protection Resource site is already a very useful source of information (www.childprotectionresource.org.uk).
There was a very important case back in 2006 whereby Munby J as he then was, determined through application by the parents the approach in which they were permitted to name their child through proceedings, they themselves had already been permitted to be named through previous court applications, despite at one point a contra mundum being applied they successfully argued their rights and reasons for their names to be known to all.
This case in 2006 was the pinnacle point I feel which drove Munby J to continue with his drive into transparency, I would add that during the case which was proceeding through the motions there was an ongoing consultation exercise by Lord Falconer, the then Secretary of State for Justice, during that consultation 200 children were given their views on openness and transparency.
That case was at the time a landmark ruling.
Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam)
http://www.familylawweek.co.uk/site.aspx?i=ed2243
“The birth parents applied to have media attendance at the care proceedings for their fourth child as they claim that serious miscarriages had occurred with the adoption of their previous children and that reporting the issue would help to prevent further injustice. In his judgment, Munby J reviews all the key authorities covering the reporting of family proceedings and concludes that the proceedings should be opened to selected media representatives. The Order concluding the judgment shows how this has been achieved.”
The origins of the case shows first and foremost the reasons why that transparency and openness was sought following what was determined to be actions by previous court rulings to lead to a miscarriage of justice.
Within the realms of family courts errors can and do occur, in a democratic society we need to know our justice system with all its fallible tendencies can be corrected, rather than concealed to the deepest darkest depths and that the mistakes made are only known to the handful of people present through the proceedings.
I am currently writing a piece on the 2007 publication of Rt. Hon Lord Falconer’s consultation and the findings he made with conclusions on changing the current practice.
How do i appeal judges decision? Also what do i need to do to persue my human right acts against local authority as they have breached all of mine .
Hello Joanne,
I’m afraid we can’t give legal advice at The Transparency Project. You should try and get some legal advice from a lawyer if possible. There are strict time limits for appealing, in most cases 21 days, sometimes shorter.
Lucy