Operation of the Family Courts - Justice Committee Contents


Written evidence from the Newspaper Society (FC 45)

THE OPERATION OF THE FAMILY COURTS

CONFIDENTIALITY AND OPENESS IN FAMILY COURTS CHILDREN SCHOOLS AND FAMILIES ACT 2010

Executive Summary

  • The media welcomed the Government's initiative to provide for greater transparency and openness in the operation of the family courts and to provide greater access to the decisions made by family courts. We supported the proposal to allow a general right for the media to attend all family courts.
  • The media understood and fully agreed with the need to protect the privacy of the parties to family proceedings and the need for restrictions on reporting in order to preserve their anonymity.
  • But we did not support the proposal that there should be automatic anonymity for all other participants to such proceedings in any reports. All courts already have appropriate discretionary powers to protect individual witnesses if necessary in individual cases. The initiative towards greater openness arose from background of increasing public lack of confidence in the operation of the family courts, particularly in public law cases.
  • The Act's provisions are enormously complex. Their scope and effect are in places uncertain and in other places appear so restrictive as to render any meaningful report impossible.
  • We are concerned that if enacted in its present form the Act's effect could be to render the publication of any article referring to family proceedings a contempt of court, even if derived entirely from material already in the public domain and even if the parties were not identified,.
  • The blanket ban upon publication of information identifying anyone involved in or "connected with" the proceedings will continue indefinitely and for all purposes. It will prevent the occupation of a witness from being reported even where this will not identify them or a party to the proceedings.
  • The NS believes that the intention of increased transparency has been lost in the Act's drafting, that 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.
  • It is wrong to suggest that the interests of the families are best met by a system of secret justice. In no other court is there considered to be an inherent tension between the proper administration of justice and open justice—in fact, quite the reverse.

Introduction

1.  The Newspaper Society ("NS") is the organisation of publishers of the local and regional press. Our members provide local news and information to 40 million print readers a week and 37 million web users a month through their print, online and broadcast platforms which include 1,200 daily and weekly, paid-for and free newspaper titles, as well as 1,500 websites, 600 niche/ultra local titles, 43 radio stations and two TV stations.

2.  The regional press plays a vital role in reporting the day-to-day work of the courts throughout the United Kingdom. Publishers, editors and journalists are very aware of the importance of their role in producing fair, accurate and contemporaneous reports of court proceedings as a vital part of the proper operation and wider upholding of the open justice principle.

3.  The NS, both directly and through its work on behalf of the Parliamentary and Legal Committee of the Society of Editors, has been involved in discussions over many years with the then Lord Chancellor's Department, the Justice Department and Home Office and their Ministers, the Law Officers and other members of the judiciary in relation to the operation of the courts and access for the media.

4.  The NS was been one of the leading media organisations responding to Government proposals over recent years concerning the operation of the family courts. It is worth noting that the starting-point of the initiative to increase transparency and openness in family courts, beginning with the October 2006 consultation paper "Confidence and Confidentiality: Improving transparency and privacy in family courts" was a background of increasing public lack of confidence in the operation of the family courts, particularly in public law cases involving children, and criticism (whether well informed or not) of the professionals and practitioners involved in the family justice system. The aim, we understood, was to dispel this disquiet and restore confidence by opening up the courts to public scrutiny.

The Passage of the Act

5.  Throughout the successive consultation papers, and the publication of the draft Bill and its passage through Parliament, our position was that we welcomed the aims of the initiative, to provide for greater transparency and openness in the operation of the family courts and to provide greater access to the decisions made by family courts. We supported the proposal to allow a general right for the media to attend all family courts. We repeatedly emphasised that the media understood and fully agreed with the need to protect the privacy of the parties to family proceedings and the need for restrictions on reporting in order to preserve their anonymity, but we did not support the proposal that there should be automatic anonymity for all parties to such proceedings in any reports, which would have been a step backwards in that it would put in place greater reporting restrictions than currently prevail. We accepted that, as with access to the courts, there might on a case by case basis be a need to impose reporting restrictions and we pointed to the existing multiple statutory restrictions imposed on reports of family proceedings, and to the wide discretionary powers available to courts to restrict and control access and reports of proceedings. We repeatedly suggested that reporting restriction provisions in the family courts should be modelled on those applicable to the youth courts, under the Children & Young Persons Act 1933, which for over 75 years have served to protect the privacy of children appearing in youth courts whilst enabling the media to report the proceedings. The media are highly experienced in complying with reporting restrictions of this kind and are acutely aware of their responsibilities in this regard. The CYPA provisions are short, simple and serve the purpose. Unfortunately, the provisions of the Act are none of these things.

6.  Our conclusion, regretfully, is that the highly commendable aim of opening up the courts, increasing transparency and restoring public confidence in the system was subverted and an important opportunity to restore and enhance the principle of open justice and public accountability was sidetracked by the intense pressure exerted by some of those involved in the family justice system to build into the Bill extensive and automatic reporting restrictions. It is also a matter of great concern that this pressure seemed on many occasions to stem from a lack of understanding of the law applicable to court reporting generally. There was a clear desire on the part of all those involved—media, family court practitioners and professionals, and government—to protect the privacy of the families involved, particularly children. At times this debate seemed to dominate all other considerations—and at times was conducted in a manner which overlooked the fact that the Government proposals at all times included provision for total anonymity for the families and children involved. Much of the strongly-felt anxiety and concern apparently stemmed from this misplaced perception. There was also a strong lobby to maintain automatic anonymity for professionals involved in the system who did not wish their identities to be reported when giving evidence—again, despite the fact that the existing law would allow any court to protect their identity in individual cases if necessary. We were very disappointed that in the final event the Act became the vehicle for a regime which not only ensured total anonymity for all those involved, thus completely defeating the objective of greater accountability of those involved in the system, but which also, if brought into effect in its present form, will arguably place greater restriction upon the media's ability to report than is presently the case:

The NS strongly agrees with the sentiments expressed by Lord Justice Munby in his Hershman-Levy Memorial Lecture speech on 1 July this year, and with the conclusions he draws in relation to the provisions of the Children Schools and Families Act 2010.

7.  The NS believes that the intention of increased transparency has been lost in the Act's drafting, that 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.

The Act's Provisions: Specific Concerns

8.  The Act as drafted is not restricted to impacting upon reports of actual proceedings: we are concerned that its effect could be to render the publication of any article referring to family proceedings a contempt of court, even if derived entirely from material already in the public domain and even if the parties were not identified, if the publication was not derived from an "authorised news report". We are now left reliant on the existing caselaw, and its future development, to determine how widely "information relating to the proceedings" may be interpreted.

9.  The blanket ban upon publication of information identifying anyone involved in or "connected with" the proceedings will continue indefinitely and for all purposes - reversing the important House of Lords judgment in Clayton V Clayton (and despite the then Government at one time stating that it would not reverse this judgment). The NS believes the phraseology of the Act's restrictions could lead to absurd results—such as not being able to (ever) name the Judge presiding over the case. It also means that all witnesses (apart from paid expert witnesses)—social services officials, local authority officers, police, teachers—will all have automatic anonymity for ever, even in cases where disclosure of their identity would not identify the child or other parties to the proceedings.

We remain firmly of the view that if there is to be any real advance in openness and transparency, the general presumption should be that witnesses are identified. The basis of the pressure towards greater openness in family courts arose because of concerns not only about the manner of operation of the courts and the decisions reached but also the conduct and decision-making of the professionals involved—who now will continue to be allowed to operate under a cloak of anonymity. The recent judgment of Lord Justice Munby in Dr A & Ors V Ward & Anor 2010 EWHC 16 (Fam) 08 January 2010 is highly relevant.

10.  The use of a list of effectively "proscribed" identification material (Section 13(4)(a)(i) and Section 21(1) and (2) means that this will automatically be deemed "identification information" the publication of which is likely to lead members of the public to identify the individual…", whether this was the intention or not. If the intention was that the Subparagraph 21(2) list was intended to be a list of indicative examples only, (eg the approach adopted in S45(8) of the Youth Justice and Criminal Evidence Act l999) then the definition in Section 21(1) at (a) should have been worded " …any of the matters set out in subsection (2) if their publication is likely to lead…."

The effect is to prohibit the mention of any of the factors in S.21(2) in any circumstances and even where these would not, in fact, identify the individual concerned. It will prevent the occupation of a witness from being reported even where this will not identify them or a party to the proceedings—again with absurd results: reports will not be able to say that Witness X was a police officer, or a doctor. It will render any meaningful report of the proceedings completely impossible.

11.  The Act's provisions are enormously complex. Their scope and effect are in places uncertain. The simplicity, clarity and workability of the youth court model is nowhere replicated. If journalists are not confident in the application of the rules, they may be deterred from reporting the family courts at all and the central objective—greater public accountability and scrutiny—will be jeopardised. Our understanding is that very few local and regional newspapers presently routinely cover family courts, or have any intention to, since they feel that their inability to properly report the proceedings renders their attendance in court largely futile.

12.  Finally, it is also appropriate to once again emphasise that there is no agenda on the part of the media to be able to identify children, or immediate parties to the proceedings. There is and never has been any dispute over the need to maintain the privacy of the families who are the subject of the proceedings. We remain of the view though that others involved have no claim to a right of "privacy"—the automatic anonymity of non-parties is one of the foremost characteristics of the enshrined nature of secrecy in the family courts which led to the failing of public confidence in them in the first place. Witnesses in the family courts, particularly professionals involved in the child protection and family justice system itself, have no more claim to be deserving of automatic anonymity than any other witness in any court.

It is wrong to suggest that the interests of the families are best met by a system of secret justice. In no other court is there considered to be an inherent tension between the proper administration of justice and open justice—in fact, quite the reverse.

September 2010



 
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Prepared 14 July 2011