Are there drawbacks to transparency in the Family Court and the Court of Protection?

11 Feb

A few weeks ago Zosia Keniston wrote a blog about the move towards greater openness in the Family Court. I think there is a case to be put for the retention of privacy in order to protect the parents, couples, grandparents and children whose lives are played out before the Family Courts.

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Royal Courts of Justice

A few weeks ago Zosia Keniston wrote a blog about the move towards greater openness in the Family Court. I think there is a case to be put for the retention of privacy in order to protect the parents, couples, grandparents and children whose lives are played out before the Family Courts.

Sir James Munby P is President of the Family Court and of the Court of Protection. He would like to open out the decisions and decision making processes of both courts and to improve (his word) access to and reporting of family proceedings. It has been his long-held view that there is a need for greater transparency in family courts: see Re D (Intractable Contact Dispute: Publicity) [2004] EWHD 727 Fam. He thinks, rightly, that the same considerations apply to the Court of Protection. One could summarise his views as: (1) these courts should not be seen as secretive and unaccountable justice (see the View from the President’s Chamber at [2012] Fam Law 548) and (2) if the public knew how and why decisions are taken, then there would be more confidence in the system.

For decades family cases, whether in relation to children or the division of assets after separation have been heard in private. It's a “fall back position”. We don’t expect it to happen in any other way. That does not mean that just because we have always done it that way, we should continue to do so. In a sense, the fact that a very senior and experienced judge is pushing forward change and taking his fellow judges with him is welcome. That, of itself, breaks a mould, doesn’t it?

What is the contrary argument? Is the practice of exclusion a good one? If it should be changed, how far should the changes go?

The proposal is that many more judgements should be made available and the press should be able to report more than happens at the moment. As things stand, the press can attend family cases (FPR 27.11) but rarely do so.

I suggest that many of the reasons for privacy (not secrecy) remain valid:
•    The facts and histories being put before family courts concern the very core of our lives – our families.
•    The parties and the children before the courts (whether the Family Court or the Court of Protection) are very vulnerable and at their most vulnerable.
•    In December 2013, Nigella Lawson became the focus of the nation’s attention during the trial of the Grillo sisters. Afterwards she declared that she felt she had been wronged by the system.  She is articulate and intelligent but was also in the throes of the breakdown of her marriage. That demonstrates the power of the court process and the press.
•    Of course, it will be said that the judgements will be anonymised. That should avoid the “Nigella factor”. Unfortunately, that does not always work because of the particular facts of the case and that the families involved live in small or medium sized communities where their stories will be recognised.
•    Although some litigants threaten to go to the press with their stories about how they have been treated unfairly (not often the case when analysed objectively) the vast majority do not want that to happen.

We are all aware that details of our everyday life and actions are put on Facebook and Twitter. It has become an accepted fact of 21st Century life. In one way, our lives are more open but we also know that cyber bullying takes place. It is difficult to control.

I am sceptical that additional or wider reporting will actually redress the balance. If a reporter or any other public figure wishes to put a slant into a report or speech, they will do so. For instance, an injunction against the press will specifically allow the press to report anything which happens in the criminal or coroner’s courts. Experience has shown that these reports may well only report part of the proceedings – enough to fill an article and grab attention. If that leaves a slur or criticism (and there are many examples of that), very few people have the resources to take action to put things right.


Margaret Pine-Coffin

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