The press reported this week that an appeal involving Essex County Council was the first to be routed through the High Court, under new rules that have diverted some appeals from the Court of Appeal to High Court judges as a result of the Court of Appeal having an unmanageable workload. See for example : Essex family court case is among first to go to appeal under new system.

Broadly speaking, appeals from circuit judges in private children cases (disputes between different family members) will now be heard by a High Court Judge instead of the Court of Appeal, but appeals against circuit judges in care cases will continue to be heard by the Court of Appeal.

We thought it was interesting that the reports say :

High Court judges are set to routinely examine some family court cases at public hearings following the introduction of a new appeal system.

People unhappy about rulings by local family court judges have traditionally outlined their concerns at public hearings in the Court of Appeal in London…

Normally, hearings in the Family Division of the High Court – and in local family courts – are staged in private. Journalists are allowed to attend, but generally a judge has to decide what information can be published.

But Mr Justice Baker said the basic position was that appeals heard in the Family Division of the High Court under the new regime would be analysed in open court – in line with Court of Appeal policy.

He said judges would make orders barring children at the centre of litigation from being identified. [our emphasis]

Where a court hearing a matter about a child sits in open court rather than in private, this automatically disapplies various pieces of law that would otherwise restrict what could be published, in particular the ban on publication of the detail of what has gone on in court is disapplied. In cases heard in private the press may only report what is contained in any authorised published judgment or what the judge has allowed, rather than any further detail of what is said and done in court. Once the court sits in open court the press can report basically anything EXCEPT anything the court says they must not (typically the names of the parties and child or other identifying information).

It’s not clear from the article what the Judge is referring to when he sets out the expectation that the new High Court appeals will be heard in open court, and there is no judgment on BAILII that we can check for clarification (there is nothing sinister or odd about that – we wouldn’t expect to see a judgment published from a preliminary hearing – indeed no formal judgment may have been given).

The Court of Appeal operates under a different set of rules to that applying to the Family Court and the Family Division of the High Court. The Court of Appeal operates under the Civil Procedure Rules (the “CPR”) (relevant here is Part 52 and the associated practice directions), and there the default position is that matters are heard in open court (see CPR 39.2 here). Usually in family appeals heard in the Court of Appeal the court will sit in open court and make orders for anonymity to protect the participants.

However, in the Family Court and High Court the rules that apply are the Family Procedure Rules (the “FPR”) (Part 30 and associated practice directions deal with appeals). Under the FPR the starting point is that this sort of hearing will be in private except where the court directs (see FPR 27.10 here).

We are not aware of any formal guidance or judgment issued on this point, or of any amendments to the rules that affect the above. So we think that the judge was probably setting out his view of what principles ought generally to apply in this sort of appeal, bearing in mind that they would have been heard in open court in the Court of Appeal and that this has only changed because of the practical problem that the Court of Appeal had more work than it could manage. We think the judge was probably saying that the fact that appeals have had to be delegated to other judges for essentially manpower reasons doesn’t justify them suddenly being heard in private.

The remarks made by Mr Justice Baker do not seem likely to be of the sort that would be binding on any other judge as they are “obiter” (this means comments or observations, rather than a formal decision made following an argument on the point). And the remarks reported are not contained in “quote marks”, so we think they are likely to be the gist rather than the specific words used by the Judge.

However, assuming that the gist of what is reported is a fair representation of what the judge says, there is a good logic for the argument that this group of appeals shouldn’t start being heard in private just by quirk of suddenly falling under a separate set of rules, but it does raise the question of why the Family Procedure Rules committee or the Lord Chancellor’s office (who will have both been involved in the drawing up of revised rules and a revised practice direction to deal specifically with various aspects of the new High Court appeals – see the revised Practice Direction here and the statutory instrument which changes the rules here) didn’t cover this in their amendments. This might have been because they just didn’t think of it, or it might have been because they thought that the appeals should be heard in private, and therefore didn’t think they needed to change the rules. OR it might be because they thought that a change wasn’t needed as under either set of rules the judge has a discretion to adjust the default position to suit the needs of the particular case.

Regardless of Mr Justice Baker’s reported remarks, it will be up to each High Court judge dealing with an appeal of this sort, to decide whether or not he or she should hear the matter in open court with reporting restrictions to preserve anonymity, in the same way as would have happened in the Court of Appeal. So there may be some cases which will not be heard in open court (although the press are still likely to be able to attend if they wish), but we think this is likely to be a minority, and that many or most are likely to be heard in open court with appropriate reporting restriction orders in place to maintain privacy.

If in due course we find any judgment or guidance dealing with this issue we will update this post.