3 Transparency in the Family Courts
12. Following the publication of the Committee's
report in the last Parliament, which recommended increasing transparency
in the family courts by allowing access by the press and the public,
the Government indicated that:
The Government recognises that there is a growing
consensus that the family courts lack transparency […] As
the situation currently stands, the system is open to criticism,
and the privacy of proceedings fuels the criticism further because
accusations cannot be easily refuted.[7]
13. Subsequently, the Department undertook to perform
a consultation exercise in the early spring of 2006. The consultation
paper was due to be published in March 2006, but it has been delayed.
14. Rt Hon Harriet Harman MP, the Minister of State
at the Department, has recently taken charge of the proposals.
In an interview, the Minister said:
There's been a concern that public confidence
in the courts has been undermined and that we need to strike a
new balance which continues to protect personal privacy, which
protects the anonymity of children but which also makes the courts
open. That is something which they've managed in other countries.
There's a lot of international experience that can be drawn on,
so I'm confident that we can get a new balance and that's what
we'll do.[8]
15. At the oral evidence session, views on how transparency
could be improved were mixed. Sir Mark Potter indicated that:
So far as access is concerned, it would be my
inclination to adopt a solution along the lines of what I understand
to have been recently adopted in New Zealand, and what is essentially
applicable in our own magistrates' courts, which would give the
press the right to attend, subject to the right to exclude it
by reference to defined criteria for the unusual case. So far
as members of the public are concerned, I would restrict admission
to those with an interest in the proceedings such as members of
the family and close friends, the domestic violence support worker
and McKenzie friends. One can think of various categories of persons
with a genuine, legitimate purpose in assisting the progress of
the proceedings or their outcome, but I would not extend access
to the general public.[9]
16. Mr Justice Munby said:
When I first became a judge of the division I
was an outsider. I had not spent the whole of my professional
life at the family bar. I had done a certain amount of family
work but much of my professional life had been spent in other
divisions where the rule of open justice prevailed. Perhaps for
that reason I have always had a slightly more sceptical view of
this than those who have spent their entire professional lives
steeped in the system. I have come over the years since I began
to sit firmly to the view that the balance which is currently
held between the confidentiality and privacy interests of the
parties and the public interest in open justice is badly skewed,
in the sense that the arguments in favour of confidentiality and
privacy have left what I believe to be a very serious diminution
of public confidence in the system […]My own view - and I
speak purely personally, I do not pretend to represent the judges
or express anybody's view other than my own - is that any advantages
which currently can be gained in terms of confidentiality and
privacy proceedings are outweighed, and I believe fairly heavily
outweighed, by the constantly eroding damage to public confidence
in the system […]The question of whether there should be
public access I think is a more debatable one. I suspect that
is a matter on which views differ. Although I emphasise I speak
entirely for myself, I would be inclined, as I think I rather
hinted in my lecture last year, perhaps to go somewhat further
than the president, but that is a purely personal view.[10]
17. He went on to add that "it would be worth
considering, particularly in terms of public access, whether there
might be different parts of the proceedings to which the public
could have access."[11]
18. We reiterate the point which was made in the
report by the Constitutional Affairs Committee in the last Parliament,
that an obvious move to improve transparency in the family court
would be to allow the press and public into the family court under
appropriate reporting restrictions, subject to the judge's discretion
to exclude the public. We are pleased that the Department for
Constitutional Affairs has undertaken to consult on the issue
of transparency and expect that moves towards open justice in
the family court will quickly follow.
7 Government Response to the Constitutional Affairs
Select Committee Report: Family Justice: the operation of the
family courts, Cm 6507, March 2005 Back
8
'Harman hints at more transparency to raise confidence in family
courts: Minister favours increase in public scrutiny: Delay in
publishing consultation paper', The Guardian, 10 April
2006 Back
9
Q36 Back
10
Qq40 and 41 and see also an article by Mr Justice Munby entitled
Access to and reporting of family proceedings , [2005]
Fam Law 945, in which he has indicated that "If the press
can be safely admitted to the Family Proceedings Court, then why
on earth not also into the county court and the Family Division?
It really is time that something was done about all this" Back
11
Q50 Back
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