Supplementary evidence submitted by Rt
Hon Dame Elizabeth Butler-Sloss DBE, President, High Court, Family
Division
On 9 November 2004, the Select Committee asked
for further evidence on the subject of openness of proceedings
in the Family Courts.
I referred the Select Committee to a consultation
paper issued by the Lord Chancellor's Department in August 1993
entitled "Review of Access to and Reporting of Family Proceedings".
Although it is not entirely accurate, since there have been subsequent
changes, it has a helpful background to the complicated and somewhat
inconsistent primary and secondary legislation. It also sets out
various options which remain useful as a possible guide for the
future. I attach a copy for your information.
CHILDREN CASES
ONLY
The following comments are my own and are confined
to family cases involving children, which principally involve
children the subject of Children Act 1989 proceedings, whether
public law or private law, adoption under the Adoption Act 1976,
wardship and inherent jurisdiction, and Hague Convention child
abduction cases.
PRIVACY
The basic rule in the High Court and the county
court is that the proceedings are "private", that is
to say closed to the Press and to the public unless the court
specifically directs that any part should be open (Family Proceedings
Rule 4.16(7)). The majority of cases are heard in private although
increasingly judgments of High Court judges are given in open
court or made available to the law reporters and the Press. The
identities of the children and their families are usually protected
by anonymity. Recently, two cases involving terminally ill babies,
Charlotte and Luke were heard entirely in open court. In both
those cases the mothers had already been to the Press.
The basic rule in the Family Proceedings Court
(the FPC) under the Magistrates Court Act 1980 is to exclude the
public but to allow the Press to attend. Section 69(2) provides:
In the case of family proceedings in a magistrates'
court other than proceedings under the Adoption Act 1976 no person
shall be present during the hearing and determination by the court
of the proceedings except:
(a) officers of the court;
(b) parties to the case before the court,
their legal representatives, witnesses and other persons directly
concerned in the case;
(c) representatives of newspapers or news
agencies
. . .
Adoption Act proceedings are always heard in
private.
Applications for permission to appeal and appeals
to the Court of Appeal are almost invariably heard in public and
recently the procedure whereby anonymity was given almost invariably
has changed to a case by case decision whether to protect the
identity of the family.
The advent of Unified Administration (UA) has
the effect, among others, of requiring a single and comprehensive
set of rules to cover the High Court, the county court and the
FPC. They are in the process of being drafted now.
It seems clear to me that post UA, we cannot
continue to have a different rule in the High Court and the county
court from the FPC.
The 1993 consultation paper helpfully sets out
at Part IV the suggested options for change.
ACCESS
My own view has changed and I now consider that
we should open the hearings of all children cases, except adoption,
to the Press unless there are good reasons to exclude them in
a particularly sensitive child case such as where sexual abuse
allegations are raised. I would recommend that there should be
a presumption of access by the Press unless specifically excluded
by the judge or district judge.
I would not wish to open the court to the public
in the majority of cases since it is likely to add a burden to
those giving evidence, particularly the parents, to have possibly
large numbers of people in the courtroom.
ACCESS AND
REPORTING
On the assumption that the Press but not the
public may attend the majority of child cases in the High Court
and the county court, it is important to distinguish between permitting
the Press to attend, and, if they are entitled to attend, whether
they may report some or all of the proceedings. In the FPCs the
Press can attend and report but are subject to restrictions (see
section 69(2)(c) and section 71 Magistrates' Courts Act 1980 in
conjunction with section 97 Children Act 1989).
REPORTING
My own view is that the Press should have the
right to report the judgment in the case; possibly to report the
final submissions; but not however, to report the evidence given
by the witnesses.
This proposal has some similarity to the rules
for divorce and nullity proceedings where, in the days of defended
divorces, the Press and the public had access but there were reporting
restrictions which permitted the reporting of the judgment but
not the evidence.
It should be noted that access by the Press
may not be entirely easy in the rooms and small courts in which
the district judges (DJs) often sit in the county court. The current
lack of suitable courtrooms for family judges and DJs in certain
parts of the country may impede the opportunity for more than
the minimum access by the Press at some hearings.
ANONYMITY
In my view the Press should not have the right
to report the names of the children or families, nor details which
would have the effect of identifying them. I consider that the
restrictions on reporting currently contained in section 97 of
the Children Act 1989 (as recently amended by the Children Act
2004) should continue to apply.
CHANGES REQUIRED
I have suggested to the High Court judges that
their judgments should more often be given in open court. I would
not be able to make a Practice Direction with the concurrence
of the Lord Chancellor which had the effect of overturning Family
Proceedings Rules (Rule 4.16(7) and 4.23) and the statutory regime.
As I said above the rules are in the process of being revised
and rewritten. We shall also have to look at the effect of primary
legislation. To grant access to the Press but not to the public
is in primary legislation in the FPC and it may well require primary
legislation for all the courts to have the same rule.
OTHER JURISDICTIONS
I enclose a summary of the approach to privacy
in some other jurisdictions for information (Annex).
Dame Elizabeth Butler Sloss
President of the Family Division
21 December 2004
Annex
PUBLICITY IN
PROCEEDINGS INVOLVING
CHILDREN: PRACTICE
IN SOME
OTHER JURISDICTIONS
| Jurisdiction |
Current Practice | Legislative/Other Basis
|
| Australia—Federal Court | Attendance
Since 1983, proceedings before the Family Court of Australia have been open to the public and the media.
| Section 97(1) Family Law Act 1975 (as amended)
|
| Reporting
The news media is free to publish accounts of family court proceedings provided they do not contain information which identifies the parties, witnesses or others associated with the case.
| Section 121(1) Family Law Act 1975 (as amended)
|
| However, publication of any report in any publication that is of a bona fide professional or technical nature intended for circulation among members of the legal or medical professions is permitted.
| Section 121(9) Family Law Act 1975 (as amended)
|
| Australia—State Courts (Western Australia)
| Attendance
Proceedings in the Family Court of Western Australia echo the position as stated above.
| Section 97 Family Law Act 1975/
Section 212 Family Court Act 1997 (Western Australia)
|
| Reporting
The reporting restrictions on proceedings involving children in the Family Court of Western Australia are as stated above.
| Section 121 Family Law Act 1975/Section 243 Family Court Act 1997 (Western Australia)
|
Canada—Provincial Courts
(Nova Scotia)
| Attendance
Proceedings in the family court are generally heard in private.
The following persons are permitted to attend proceedings involving children:
| Section 10(3) Family Court Act RSNS, c 159
|
| (1) Officers of the court
(2) The parties and their legal representatives
(3) Witnesses
(4) Any other person whom the Judge may require or permit to be present.
| |
| Reporting
There is no provision generally permitting media representatives to report on family proceedings.
| Section 10(1) Family Court Act RSNS, c 159
|
| | |
Canada—Provincial Courts
(Ontario)
| Attendance
Proceedings involving children are generally held in private unless the court orders otherwise.
| Section 45(4) Child and Family Services Act RSO 1990 c C11
|
| However, media representatives are permitted to attend provided no more than two media representatives do so.
| |
| Reporting
It appears that the media is free to publish accounts of family court proceedings provided they do not contain information which identifies the parties, witnesses or others associated with the case.
| Section 45(7) Child and Family Services Act RSO 1990 c C11
|
| However, subject always to the power of the court to restrict such publication where to do so would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceedings.
| |
Canada—Provincial Court
(British Columbia)
| Attendance
Proceedings concerning children are open to the public and the media. However, the court may exclude any person (other than the child, a party to proceedings or heir legal representatives) if it is satisfied that a person's presence may materially prejudice the best interests of a child; will substantially prejudice the interests of an adult party to the proceedings; or will interfere with the administration of justice.
| Section 3(1) Provincial Court Act RSBC 1996 c 369
|
| Reporting
The media is free to publish accounts of family court proceedings provided they do not contain information which identifies the parties, witnesses or others associated with the case.
| Section 3(6) Provincial Court Act RSBC 1996 c 369
|
| Publication of any report in any publication that is of a bona fide professional or technical nature intended for circulation among members of the legal or medical professions is permitted.
| Section 3(7) Provincial Court Act RSBC 1996 c 369
|
| Ireland | Attendance
Only the parties, their representatives and witnesses may attend family law hearings involving children.
Reporting
At present statutory provisions provide simply that family law proceedings are to be heard "otherwise than in public" The courts have interpreted this as restricting the public reporting of what has occurred in family law hearings or any documentation arising therefrom. There is no authoritative Supreme Court decision on this however. The result is that there is no reporting even of decisions in the District and Circuit Family Law Courts, where written decisions are rare. Written decisions of the High Court and Supreme Court in family law matters are, however, regularly reported both through ordinary law reporting channels and in the public press, though with identifying details removed.
| Section 34 of the Judicial Separation and Family Law Reform Act 1989 the Family Law Act 1995, the Family Law (Divorce) Act 1996, the Domestic Violence Act 1996, S 29 of the Child
Care Act 1991, which deals with public law cases involving children.
|
| Future changes
An amendment to the present law is contained in Section 40 of the Civil Liability and Courts Act 2004. This section would allow for a limited number of reporters of family law, who would in general be either barristers or solicitors, to be appointed who would provide reports of family law case, and in particular decisions, of the family law courts. No identifying details would be permitted. This provision is not yet in force, as court rules have first to be provided. The relevant Rules Committees are at present working on this.
| |
| New Zealand | Attendance
Proceedings in the family court are generally heard in private.
The following persons are permitted to attend proceedings involving children:
| Section 166 Children, Young Persons, and their Families Act 1989 (as amended)
|
| (1) Officers of the court
(2) Parents/guardians or other person having
the care of the child and their legal representatives
| Section 159 Family Proceedings Act 1980 (as amended)
|
| (3) The child and its legal representatives
(4) Any other person who is a party to proceedings and their legal representatives
| Section 22 Adoption Act 1955 (as amended) |
| (5) Any barrister or solicitor appointed to assist the Court
(6) Any near relative of the child
(7) Any member of the child's whanau or family group
(8) A representative of any appropriate Social Service
(9) Any Director of a Child and Family Support Service or a representative of any such person
(10) Any Care and Protection Co-ordinator
(11) Any Social Worker
(12) Any lay advocate who appears in support of the child or young person or any parent or guardian or other person having the care of the child or young person
(13) Any other person whom the Judge permits to be present
| |
| Reporting
There is no provision generally permitting media representatives to attend family proceedings, even though they may be reported with the leave of the court.
| Section 169(1) Family Proceedings Act 1980 (as amended)
|
| However, publication of any report in any publication that is of a bona fide professional or technical nature intended for circulation among members of the legal or medical professions is permitted.
| Section 169(5) Family Proceedings Act 1980 (as amended)
|
| Future changes
The practice as noted above is in the course of being updated by way of the Care of Children Bill which is currently going through Parliament and is expected to be on the statute book by the end of the 2004 Legislation Programme.
| Care of Children Bill |
| The Bill will:
(1) Allow accredited news media representatives to attend hearings of family proceedings
(2) Allow the courts to permit other persons, including support persons, to attend hearings
(3) Allow any person to publish reports of children proceedings, but require identifying information to be withheld.
| |
| Northern Ireland | Attendance
Proceedings involving children are heard in private unless the court directs otherwise.
| Children Order (Northern Ireland) 1995. the Family Proceedings Rules (Northern Ireland) 1996
|
| Reporting
No person may publish any material which is likely or intended to identify any child involved in the proceedings. In practice anonymised judgments are produced which are given to the parties' lawyers in advance of publication for comments on further anonymisation. Thereafter they are posted on the internet.
| Article 170 Children Order. |
| Scotland | Attendance
All cases relating to Children's Hearings are held in private whether first instance or appellate, Children's Hearing , Sheriff Court or Court of Session.
| Rule 13 of the Children's Hearings (Scotland) Rules 1996
|
| Reporting
The identification of children in civil proceedings and any details such as address or school which could have the effect of identification is prohibited. The court has the power to relax the restrictions in certain specified circumstances. Any judgments are anonymised.
| Section 44 Children (Scotland) Act 1995
s 47 of the Children and Young Persons (Scotland) Act 1937
|
| | |
|
