Media coverage of the family
courts
132. A major concern which was raised in evidence
is the fact that the family courts conduct their business in private.
Section 97(2) of the Children Act 1989 prohibits and makes it
a criminal offence for any person to publish any material which
would identify, or is likely to identify, a child as being involved
in family courts proceedings. Furthermore, section 12 of
the Administration of Justice Act 1960 has the effect of making
it potentially a contempt of court to publish information relating
to proceedings before any court sitting in private where the proceedings:
i. Relate to the exercise of the inherent jurisdiction
of the High Court with respect to minors;
ii. Are brought under the Children Act 1989;
or
iii. Otherwise relate wholly or mainly to the
… upbringing of a minor.
133. In a recent judgment, Mr Justice Munby spelt
out that the publication of any information about a child case,
whether or not it would identify the child concerned, is almost
always prohibited without the direct permission of the court.[103]
Publication in that context covers almost all forms of communication
whether by word of mouth or in writing.
134. The current effect of this judgment is that
parents who raise issues with their constituency MP, social services
department or other appropriate bodies, are unclear about their
ability to access and use this information. They may well be committing
an offence, and those receiving complaints are unable to examine
them or take them up.
135. In a submission to the Committee, the legal
correspondent Mr Joshua Rozenberg, suggested that there should
be greater public access to the family courts. In particular,
concerns have been expressed, following the recent case involving
Professor Roy Meadows, that if the courts operate in an atmosphere
of secrecy, injustice could occur and the public would be none
the wiser. He commented that:
In general, I would argue that the courts should
be open to press and public, subject only to restrictions on identifying
children involved in proceedings. It is patently in the public
interest that justice should be done patently and in public.[104]
136. Mr John Sweeney, a reporter with the BBC, also
criticised the current system, stating that:
Secret courts are bad courts. In rape cases, the
media is not allowed to name the victim and sometimes the accused.
But we are allowed to report in full the evidence. In exactly
the same way the media should be allowed to write and report the
evidence in a Family Court—so long as we don't identify
the child. In the Family Courts, if the only evidence against
a parent comes from an 'expert' then the parent suffers a grievous
disadvantage if that evidence can never be brought to the public
eye.[105]
137. The Committee also received a submission from
Ms Sarah Harman, a solicitor who had been seriously criticised
by Mr Justice Munby in the case of Re: B (see above) for disclosing
documentation from the case to the Solicitor General (who happened
to be her sister) as well as to the Minister for Children, Rt
Hon Margaret Hodge MP, and members of the media. Ms Harman criticised
the lack of transparency in proceedings relating to children:
I believe that this 'secrecy' prevents society having
any knowledge of the workings of our family court systems, ascertaining
whether or not our family courts are fair and in touch with current
mores, or knowing whether our family judges are serving society
as a whole in the best way possible. I further believe that users
of the family courts, particularly those who feel aggrieved (for
instance where diagnoses of Munchausen's' syndrome by proxy, or
non-accidental injury are made) are prevented from having reasonable
discussions with close family and colleagues about their cases,
are denied the right to obtain support from their communities,
their churches and their MPs, and most importantly are denied
the right to search for alternative diagnoses in difficult child
protection cases[106]
138. The judiciary proved very receptive to this
criticism. In particular, they acknowledged that the lack of transparency
fuelled the notion that the courts were biased against particular
groups of litigants. Mr Justice Munby commented that:
The fact is, and I believe it is a fact, that the
family justice system is under criticism today because it is perceived
as being a secret justice system, and in that sense we are crippling
public debate. As the President has indicated, a lot of the criticisms,
whether they come from Fathers4Justice or the NSPCC, are necessarily
anecdotal and nobody is able to see the relevant material. I think
it is doing us serious harm, and I do not think that the existing
system, the existing rules, are necessary.[107]
139. The witnesses representing the judiciary were
unanimous in stating that something should be done to improve
transparency and offered a number of solutions. These included
the possibility of giving judgment in public (subject to the usual
anonymity order) and some possible disclosure of medical evidence.
Dame Elizabeth Butler-Sloss noted that this issue had been considered
before:
Could I just make two points? One is that this was
discussed in a paper which came from the LCD about 10 or 12 years
ago, and there was quite considerable consultation on whether
the Family Court should be open, and then it died a death. It
is quite an interesting paper and I think it would be worth, actually,
looking at that. Secondly, I would not disagree with having the
same system in the magistrates' court and right the way through
the county court and the High Court of allowing the press in under
certain restrictions.[108]
140. This mood for change has not simply been expressed
to the Committee. In a recent (public) judgment, considering international
child trafficking, Mr Justice Ryder commented that:
Aside from the public interests that I highlighted
at the beginning of the judgment, there is also a public interest
in knowing of the work that is done in the family courts an interest
that is sometimes narrowly characterised and equated with one
of its components i.e. public scrutiny of the fairness of family
justice. Provided the private and family lives of people are respected,
i.e. inter alia their personal confidentiality is protected from
prurient interest and salacious comment and that the vulnerable
are protected, a greater measure of public information about the
work of the family courts may go some way to engender public confidence
in the sensitive balancing of people's rights and needs that is
an essential component of the social contract that is family justice.
For my part I would welcome careful consideration of whether and
if so in what way family proceedings should be more open to the
press and to the public. The trust in the media has been amply
re-paid in this case and I am grateful.[109]
141. In the course of that hearing, Mr Justice Ryder
made a direction, which would protect the private and family lives
of all private law litigants, whilst allowing far greater public
understanding of the work of the family courts. The terms of the
order were as follows:
The judgment is being distributed on the strict understanding
that in any report no person other than the advocates or the solicitors
instructing them (and other persons identified by name in the
judgment itself) may be identified by name or location and that
in particular the anonymity of the children and the adult members
of their family must be strictly preserved.
142. The DCA was unwilling to commit itself to such
an approach and, in oral evidence, Baroness Ashton commented that:
What the President and the judiciary are looking
for is to be able to be more open about their judgments and I
think there is a general view that this could be a positive move
and provide greater understanding of the way that the family courts
work. So the proposal that she is looking towards is that there
might be able to be a presence but that the normal reporting restrictions
around children would apply, but there would be a more general
understanding of the way the courts work. What we have said is
that we want to look at this very carefully so that we address
the issues that are coming from both directions, those of anonymity,
those of making sure that we do not put those who are in court
into a more difficult situation where they feel unable to give
the evidence and that we do not just make this such an open situation
that in a sense that risks justice being done.[110]
143. The evidence from the President of the Family
Division[111] shows
that courts in other jurisdictions are able to be much more transparent
when dealing with family law cases. The Scottish experience is
particularly relevant, since it deals with a social background
that is essentially the same as that in England and Wales. We
note that the powers to admit people to the Court room who are
not directly involved in the case are not even uniform in England
and Wales: the powers of district judges in magistrates courts
to admit people are different from those available to judges in
county courts or the High Court.
144. A greater degree of transparency is required
in the family courts. An obvious move would be to allow the press
and public into the family courts under appropriate reporting
restrictions, and subject to the judge's discretion to exclude
the public. Anonymised judgments should normally be delivered
in public unless the judge in question specifically chooses to
make an order to the contrary. This would make it possible for
the public to have a more informed picture of what happens in
the family courts, and would give the courts the 'open justice'
which characterises our judicial system, while protecting the
parties.
Children Act 2004
145. The Government is also attempting to create
greater openness. It sought to amend the Children Bill (as it
then was) to change the law in respect of the criminal offence
created under s 97(2) of the 1989 Act and s 12(4) of
the Administration of Justice Act 1960 and to provide that where
the rules of court specify the circumstances in which information
from court proceedings can be disclosed, such disclosure would
not be a contempt of court unless anything else would make it
so, such as a court order prohibiting publication.
146. That proposal would not allow the extension
of disclosures of information from family proceedings to the media.
The Department has recognised that some parties to family proceedings
and others may have a legitimate interest, in limited circumstances,
in sharing information. It has indicated that its broad policy
intention is to permit the disclosure of information relating
the family proceedings in order to allow:
- Parties to a case to obtain
appropriate advice and support;
- MPs and Peers to undertake their official duties
and Ministers to exercise their statutory functions;
- Statutory agencies, such as the police, the Crown
Prosecution Service and Social Services, to obtain access to relevant
information for child protection purposes;
- Complaints to be made to supervisory bodies and
investigations to be carried out;
- Statutory bodies to undertake their regulatory
and investigative functions; and
- Approved research to be undertaken.[112]
147. A consultation paper has been issued on this
subject[113] and the
Minister for Children indicated in oral evidence that she would
keep the Committee informed of developments in this area and that
progress was expected by the summer of 2005.[114]
The consultation itself, however, only relates to a restricted
class of person and would not allow parents to discuss their case
in a free and frank manner with people they chose. It seems to
us that the main concern is to prevent press reporting of personal
details; the Government could go much further than they have suggested
if they wish to combat accusations of bias and secrecy.
148. We welcome the proposed amendments foreshadowed
by s 62 of the Children Act 2004. Parents must be able to
seek advice from constituency Members of Parliament and make complaints
to the relevant supervisory bodies. We think that this reform
should go further. The current rules relating to publication also
hinder legitimate research. For example, even parents who wished
to respond to the Government's Green Paper consultation exercise
may have inadvertently broken the law. We think that the simplest
approach is that the restriction on the discussion of their cases
by parents should be removed entirely (unless a specific order
is made to the contrary). The press should continue to be restricted
to publishing those matters which have been made public by the
court.
103 Re: B [2004] EWHC 411 (Fam) Back
104
Ev 199 Back
105
Ev 200 Back
106
Ev 167, para 7 and 8 Back
107
Q 46 Back
108
Q 46 Back
109
Re: C [2004] EWHC 2580 (Fam) Back
110
Q 414 Back
111
Cm 6452 Back
112
Ev 192, para 3.8.7 Back
113
Department for Constitutional Affairs, Disclosure of information
in family proceedings cases involving children, [CP 37/04],
December 2004 Back
114
Q 420-422 Back
