House of Commons - Operation of the Family Courts

Operation of the Family Courts - Justice Committee Contents

9 Media and public access to the family courts

273. Under the Children Act 1989[330] it is a criminal offence punishable by a fine of up to £2,500 to publish material which would identify, or which would be likely to identify, a child involved in family court proceedings, unless the court has exercised its power to make an order to the contrary. Until April 2009, reporting on cases in the family courts was extremely limited; proceedings in the county court were invariably held in private. Following mounting media attention, widespread consultation and a critical report by our predecessor Committee,[331] the then Government introduced changes to the Family Proceedings Rules 1991, allowing the accredited members of the media to attend family court proceedings. The rules on media reporting, however, were not relaxed,[332] meaning that two of the main criticisms, the limited amount of information the press can report and the privacy conferred on all participants in a case, remained unaddressed.

The Children, Schools and Families Act 2010

274. In 2009, the then Government introduced a legislative scheme to increase media access to and openness in the family courts. The Children Schools and Families Act 2010 (CSFA 2010) contains two stages. The first extends the range of proceedings that the media can attend to include adoption cases,[333] and provides exceptions to the general rule that publication of information of proceedings is a contempt of court.[334] The second stage extends the type of information, defined as "sensitive personal information", that can be published.[335] Neither stage is in force.

275. We did not hear from any witness who was in favour of the scheme for media access in the CSFA 2010, although their reasons for disliking the measures varied. Representatives of the media told us that the approach in the 2010 Act actually reduced the amount that could be published, rather than increasing it. The Press Association told us:

The reforms in the Act will, if brought into effect, impose even greater restrictions than those which exist at present, and can be expected to lead to further undermining of public confidence in the family courts and the family justice system.[336]

The Newspaper Society, in a submission with which the Society of Editors agreed, took a similar view:

the intention of increased transparency has been lost in the Act's drafting...the aim of achieving privacy for the families has been conflated into a renewed regime of secrecy which—if the relevant provisions in the Act are brought into force unamended—will not only fail to deliver the desired public accountability but will represent a major reduction in what can now be lawfully published, and will actually further reduce public debate and discussion of the family justice system. It will have a detrimental impact in terms of freedom of expression and will infringe Article 10 rights.[337]

276. The process by which the legislation was developed was similarly condemned. Several witnesses pointed out that the impact of the changes to the Family Procedure Rules had not been assessed before the new scheme had been drafted.[338] Dr Julia Brophy, who carried out research on behalf of the Children's Commissioner on young people's attitudes to reporting proceedings in the family courts, describing the Act as "rushed [and] ill-thought out",[339] told us that the impact on the children involved in court cases had not been assessed before the 2009 Rule change either.[340] Napo thought the legislative process was flawed. While Napo do "not oppose more information being published about Family Court decisions...we are concerned that these changes were rushed through in the 'wash up' before the dissolution of the last parliament. We are concerned that inadequate thought has been given to protecting the identities of children."[341]

277. A number of witnesses told us that the provisions in the CSFA 2010 were simply "unworkable"[342] due to their conflict with a child's right to privacy[343] and right to have his or her voice heard before decisions that affect his or her life are taken.[344] Dr Julia Brophy told us:

Children start talking to experts—clinicians, social workers, guardians—right at the beginning of the case. It's at that point they will have to be told that the media will have access to the court. There is no option not to tell them. Medical ethics, the GMC ethics, about trust, honesty, and openness when they are dealing with consent with young people are clear. Equally, the advocate for the child and the guardian has to tell the child, and at that point, early on in the case, if the child votes with its feet and says nothing, you are then presented with a case where a judge is going to have to make very serious decisions about the future care of a child without direct information from the child. It's not surprising that children will vote with their feet if they are told. My concern at the moment is that they are probably, for the most part, not being told, and that is a breach of their Article 12 rights.[345]

The Medical Protection Society confirmed Dr Brophy's evidence on the ethical obligations of doctors and other medical professionals, and highlighted the confidential nature of the information that could be published under the CSFA 2010:

The type of information—medical, psychological and healthcare treatment—is intensely personal. Even if it is reported in an anonymous way, it is likely to have a significant impact on the individuals involved and could inadvertently result in the individuals being identified, particularly in their local community. We cannot see how such a fundamental invasion of privacy can ever be in the wider public interest nor, indeed, in the interests of the administration of justice.[346]

278. The Family Law Bar Association supported: "greater transparency and accountability in the family courts...It is vital that the public knows and understands what happens in the Family Courts." However it was critical of the Act, calling it another part of an "ill-fitting jigsaw of statutory pieces" governing media reporting of family proceedings. Resolution expressed concerns about the impact of the legislation on children, particularly the broad power the CSFA 2010 gives the Lord Chancellor to remove the statutory protection from "sensitive personal information".[347] The Law Society told us implementation of the Act would have a "detrimental impact on family proceedings" and would lead to further delays as "the proposed framework may increase preliminary hearings where the court will be asked to prevent media representatives attending, and/or reporting on the case."[348] The Society agreed with Dr Brophy that there were concerns about the inhibition of children and parties, and highlighted the delays that would be caused by preliminary hearings to determine the level of access the media should be allowed.[349] Craig Pickering of Families Need Fathers, who campaign for greater transparency in the courts, effectively summed up the evidence from all our witnesses, when he said:"We would like [the MoJ] to go back to the drawing board and think again".[350]

279. Tim Loughton MP, the Children's Minister, told us that the Government would not implement Part 2 of the 2010 Act "at least" until the Family Justice Panel had completed its review. He acknowledged the opposition to the measures, and the impact the way the legislation had been passed had on its quality:

I think it was a piece of legislation in haste, which managed, remarkably, to unite just about everybody in opposition to it—from the judiciary, who thought it could be too intrusive, to the children's charities, who thought it would compromise the welfare and confidentiality of children, to the editors of newspapers, who felt that it did not go far enough and was a fudge. I remember having all of them in front of a Bill Committee giving evidence and united from completely different angles on why this was a wholly unsatisfactory fudge. It was always going to have to be returned to. It was legislation which was put through in haste.[351]

280. We recognise the need for transparency in the administration of family justice, and the equally important need to protect the interest of children and their privacy. However, our witnesses were united in opposing implementation of the scheme to increase media access to the family courts contained in Part 2 of the Children, Schools and Families Act 2010. While their reasons for doing so differed, and were sometimes contradictory, such universal condemnation compels us to recommend that the measures should not be implemented, and the Ministry of Justice begin afresh. We welcome the Government's acknowledgement that the way the legislation was passed was flawed, and urge Ministers to learn lessons from this outcome for the future.

Openness in the family courts—the way forward

281. The Constitutional Affairs Committee found in 2005 that there was a broad consensus across all groups that greater openness and transparency in the family courts was required. While united against the scheme set out in the CSFA 2010, our witnesses disagreed as to the way forward. We consider this issue is best considered through two questions: firstly, what is the aim of greater openness in the family courts; and, secondly, how is that objective best achieved?

282. Our evidence suggests that the primary aim of greater openness in the family courts is increased public confidence. Tim Loughton MP, the Children's Minister, summarised the concerns he had heard as follows:

Whether or not it is true, there is a perception that there is a bias in the courts. Various fathers' groups will tell you that it is a bias in favour of the resident parent, usually the mother. There are others who will tell you that there are incompetent or perhaps even malign social workers and other local authority people who have got it in for certain families and will therefore use whatever methods to extract a child from his or her family, with all that being brushed under the carpet, or that the judges are complicit in trying to conceal where justice is not really being done.[352]

283. Families Need Fathers told us:

The point of openness is to ensure that decisions are taken in the right way. By opening decisions to public scrutiny we don't want to identify children, vulnerable adults or their family. We do want the information to be available on how the decisions are decided [...]. The rules that prevent this in criminal cases involving children provide relevant experience on how to do this.[353]

284. The Newspaper Society told us: "The initiative towards greater openness arose from a background of increasing public lack of confidence in the operation of the family courts, particularly in public law cases."[354] The Press Association agreed "the culture of secrecy which has developed in the family courts over the years is counter-productive, particularly in relation to public confidence in family justice."[355] It suggested "the principle of open justice [should be] placed on a par with the idea that children involved in proceedings need to be protected from publicity."[356]

285. While these witnesses emphasised a lack of public confidence in the family courts, other witnesses highlighted the child's right to privacy over their personal information, safety concerns arising from the publication of information that could identify the child involved and the need for children to be able to speak freely to all those with a role in presenting their experiences and views to the court. The Royal College of Paediatricians and Child Health said: "our paramount principle is that a child's welfare must be maintained ... openness and transparency is a secondary priority. "Consent from parents or older children may be difficult to obtain if families are informed, as they should be, that health records/reports may be made available to the media. If this was so, then the quality of the report itself may be compromised."[357] The British Association for Adoption and Fostering, for example, told us: "Children must feel confident that they will not be identified as the subject of any proceedings and that the details of their family's private life and personal difficulties will not be publicised. Children must not be inhibited in disclosing their difficulties and participating in assessments by a fear that their friends and neighbours or the wider community will be able to read reports of the resulting court proceedings."[358]

286. Women's Aid said that it "believes that allowing media in the family courts could jeopardise the safety and wellbeing of children and young people and place them and their wider families, including children within the same family, at risk."[359]

CHILDREN'S VIEW OF TRANSPARENCY IN THE FAMILY COURTS

287. In 2010, research on behalf of the Children's Commissioner found that children and young people involved in cases in the family courts were unhappy at the suggestion details of their cases could enter the public domain. Some 79% of children and young people in the public law sample and 91% in the private law group were opposed to any details of their cases being published in the press. When the children in the public law sample who thought some detail could be published in the media were asked to identify information that was suitable for publication "without exception these children selected statements vindicating children of blame or responsibility for events leading to care proceedings: they wanted it known that they were not 'bad' or 'naughty' children and that they had done their best in awful circumstances."[360] They rejected the suggestion that details of the neglect suffered or parental mental health problems should be published. When asked why they did not want details of their cases published, the children "said hearings address issues that are 'private'; they concern events that are painful, embarrassing and humiliating for children and an overwhelming majority said this information was not the business of newspapers—or the general public."[361] Children feared being identified and the attention, and even bullying, that would result.[362]

288. The Children's Commissioner also found children were mistrustful of the press: "a majority (63%) do not trust newspapers to tell the truth (79% of the private law sample and 46% of the public law group said this). The remainder thought they sometimes told the truth, "'they usually get the football results right'", but that journalists sensationalised stories or cherry-picked the information they published.[363]

289. The work of the Office of the Children's Commissioner on media reporting in the family courts gives a voice to the most important, and least heard, group of people in the family court system. The research makes plain that children involved in family court cases fear identification by their community to such an extent that knowing a case may be reported in the media could inhibit them from giving vital information to family justice service professionals.

INCREASING PUBLIC CONFIDENCE IN THE FAMILY COURT SYSTEM

290. We heard evidence from a number of witnesses that there are other ways to increase openness, and so public confidence, in the family justice system. The Magistrates' Association told us they supported the use of Family Court Open days "in order that the public should better understand the legal process, court procedure and why decisions are made."[364] Open days also allow litigants in person who have pending cases, as well as represented parties, to familiarise themselves with the court before the hearing. A year-long pilot to publish selected anonymised judgments from family proceedings in the magistrates and county courts ended in January 2011.[365] The evaluation of the pilot will be published in July 2011.

291. In this context, we note two things. First, the Family Justice Panel found: "Our own work has not led us to share concerns that arbitrary or ill-founded decisions are taken. In fact the reverse is the case. We have been impressed by the great care taken by the courts and all those involved in these difficult decisions."[366] Second, parents are now able to discuss cases with their MP, in our view, a necessary reassertion of a fundamental right.

292. Where the general public and the media do not have access to clear information on proceedings, then no-one—the judiciary, the Ministry of Justice or parents themselves—have any resource with which they can refute unfounded allegations of bias. Equally, where allegations may have foundation in fact, those with concerns are also without the information they need to tackle any injustice.

293. There is a tension between allowing the media to publish even limited information about cases in the interests of increasing public confidence and a child's right to keep personal information about them and their experiences private. There is a danger that justice in secret could allow injustice to children, or a perception of injustice. We believe the underpinning principle of the family court system, that all decisions must be made in the best interests of the child, must apply equally to formation of Government policy on media access to the family courts.

330 Children Act 1989, s 97(2) Back

331 Constitutional Affairs Committee, Third Report of Session 2002-03, Children and Family Court Advisory and Support Service (CAFCASS), HC 614 Back

332 Administration of Justice Act 1960, s12, makes it a contempt of court to report on proceedings conducted in private unless the court gives permission to do so. Back

333 CFSA 2010, s15 Back

334 CFSA 2010, s17 Back

335 CFSA 2010, s19 Back

336 Ev w13 Back

337 Ev w108 Back

338 Ev 117 Back

339 Ibid. Back

340 Q 49 Back

341 Ev 141 Back