The starting point for court proceedings is traditionally that they must all be open to the public because justice must be seen to be done. Exceptions were recognised in an early 20th century case as being, for example, where certain children and people with mental illness should be protected by the courts, and also matters involving sensitive commercial information, trade secrets and so on. Since then, matters of national security can also be heard without full public access.
Legislation passed in 1960 clarified that some cases that were heard in private would be subject to restrictions on publication of information. This includes most cases that are about a child’s welfare or upbringing or about someone who lacks mental capacity. These are amongst the types of cases that are held in private. Limited information about the existence of the proceedings can be published, but passing on any details about what has happened during the case may be contempt of court. Contempt of court is a civil offence that can attract a fine or imprisonment. In April 2009, the court rules were changed to allow journalists into a private family court hearing. However, they would still need to obtain specific permission from the judge to publish anything about what they had learnt.
There is also another piece of legislation that specifically relates to cases about children, which makes it a criminal offence to identify a child who is subject to applications like a care order, adoption, a contact dispute between parents etc. It is not thought that anyone has ever been prosecuted under this law but it seems an effective deterrent.
It is important to bear in mind that any of these laws can be lifted or modified by the judge in the particular case.
The principle of open justice is now supported by the Human Rights Act but there are still some exceptions, such as to protect children.
Cases heard in the higher courts are written up in the official law reports so that lawyers know what is binding precedent i.e. when the judge’s interpretation of the law applies to later cases. In these reports, the child’s identity is concealed and parties are usually referred to by initials.
Overall, therefore, most family cases in the lower courts have been unlikely to ever get reported in a way that presents an overview about how routine cases are decided.
There have been prosecutions under s.97 (for example, of the Daily Mail) but not successfully, which raises some questions.
The usual justification for the lack of transparency is that it would harm the child concerned, but the CA accepted there is no evidence for this belief in Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs intervening) [2004] Fam 155, and in Norfolk County Council v Nicola Webster and 5 Others [2006] EWHC 2733 (Fam) Munby said it was ‘in significant measure speculative’.
In Dr Michael John Pelling, Appellant v Mrs Veronica Nana Bruce-Williams, Respondent; Secretary of State for Constitutional Affairs, Interested Party [2004] EWCA Civ 845 the CA admitted that secrecy was merely habitual and ‘reflective of a long standing tradition’.
In Pelling v United Kingdom 35974/97 and Bayram v United Kingdom 36337/97 the European Court of Human Rights expressed the different view that that to allow proceedings in open court would severely inhibit the parties and witnesses and thus prejudice the interests of justice, ‘To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment’.
This view is also without supportive evidence and the argument was refuted in 1913 when in Scott v Scott Lord Atkinson said,
‘The hearing of a case in public may be, and often is, no doubt, painfully humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trials is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’
Thanks for these comments. Taking them in turn:
1. I’ve never been able to find a trace of a prosecution under s 97 so would be very interested if you could provide details.
2. Pelling and Webster cases: Yes, these judgments contain a great deal of discussion about the history and about the human rights aspects. My post was an attempt at a very general overview without legal references, so not comprehensive. There is however research about children themselves, rather than what judges think. Personally, I don’t agree with the way the child’s rights in Webster were overridden (but that is my opinion, not necessarily that of others in the project).
3. The Scott case is the one I refer to where the HL stated that hearings about wards of court should be private, an exception to the principle you have cited.
I agree that there is a question mark over the extent to which privacy protects the child or protects the process.
I think you could count some of the committal cases as quasi-prosecutions under s97 and there have been quite a few of those. At least, those cases could have been prosecutions under s97 on the facts of the case, but different route was taken.
I THOUGHT that there was a s97 prosecution case involving the sister of a famous Labour Minister/member of the Shadow Cabinet, but I could easily be wrong.
I noted today that there’s an offence in the Magistrates Court Act 1980 but only in publishing material in a newspaper or periodical (so utterly useless in the modern era)
On the basis that very few, (i.e. almost no) solicitors would take the risk of disclosing confidential documents to a third party, I believe that the reference to the sister of a senior Labour minister disclosing court documents in a high profile public law case did not, in fact, lead to a prosecution. There’s an excerpt below.
…”a leading family lawyer, was last night found guilty of “conduct unbefitting a solicitor” for misleading the court and passing confidential court papers to her sister, xxxxxxxxxxx. The solicitors’ disciplinary tribunal suspended her from practice for 3 months from January 1 2006. She was found guilty of contempt of court in a high court judgment last year, and ordered to pay £25,000 costs personally in the case of the client whose papers she disclosed. She also resigned as a recorder, a part-time judge……. The solicitor applied to the high court for permission to put anonymised confidential documents about the case in the public domain. But she omitted to tell the judge she had already passed the anonymised judgment in the case to her sister, who sent it to Mrs Hodge, and sent case summaries to her client’s MP and several journalists.”
Sandra is right. This was a case of contempt of court (s 12) because Sarah Harman (acting for the mother) disclosed information about the proceedings to her sister. She did not publicly identify the child, so she had not committed a criminal (s 97) offence. The case was influential in a rule change which means that a party asking their MP for advice about the court case would not necessarily be in contempt.