Select Committee on Constitutional Affairs Sixth Report

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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