I want to make a few comments on the Justice Minister Jack Straw’s recent announcement of 16th December that the Government was to ‘open up’ the Family Courts. I won’t rehearse here the implications of secret courts, or the long history of the open justice campaign – all that can be read in a forthcoming document.
Suffice it to explain, very briefly, what the current situation is on court secrecy. There are two aspects to this.
1. The first makes it the default position that family proceedings are conducted ‘in chambers’, that is, in private, with only the litigants, their legal representatives and CAFCASS present. The judge does have discretion to open the court, however, to the public, or to any individual or individuals he chooses. Thus, for example, Judge Nicholas Wall has sometimes allowed journalists into his court in the Principal Registry. These arrangements are enforced by rule 4.16 (7) of the Family Proceedings Rules 1991.
2. The other aspect prevents the publication by any means (including internet, radio and television) of the details of a case which could identify a child. This is enforced by various pieces of legislation including Section 39 of the Children and Young Persons Act 1933, Section 12 of the Administration of Justice Act 1960, and Section 97 of the Children Act 1989, which makes breach of this rule a criminal offence. There have been a number of prosecutions under Section 97, including a recent test case against the Daily Mail, but so far as I am aware these have never been successful. Section 97 does not apply to the Court of Appeal, though its published judgements are still usually anonymised.
Note that this rule applies only for the duration of a case. Once the case is concluded the rule no longer applies. This principle was confirmed in February 2006 in the case of Clayton v Clayton [2006] EWCA Civ 878. Lord Justice Wall ruled that the prohibition from identifying children which Section 97(2) of the Children Act 1989 provides only applies whilst the proceedings relating to the child in question are in progress. Once the proceedings have concluded, the protection given by the Act comes to an end. As Munby later said in Webster [2006] EWHC 2733 (Fam), the belief that Section 97(2) outlasted the proceedings has been ‘exploded for what it always was – yet another of the many fallacies and misunderstandings which have tended to bedevil this particular area of the law’.
The lower Family Courts routinely refuse to publish judgements, though there is no legislation to prevent this if they are anonymised and judges do, occasionally, use their discretion to publish judgements if they think it is in the public interest, which usually means if it paints the court in a good light. This practice is in conflict with Article 6 (1) of the European Convention on Human Rights which demands without restriction or qualification that ‘judgement shall be pronounced publicly’.
Against this background, let us now look at Jack Straw’s reforms.
1. To outlaw the publication of the details of a case after the case has concluded – that is, Straw wants to reverse Wall’s judgement in Clayton v Clayton which represented such a seminal moment for the campaign for open justice. Presenting this as a move towards greater openness is clearly cynical nonsense.
The Government believes that naming a child involved in family proceedings is hugely damaging to the child, but there is no evidence of this, and no one has ever argued the case – it is simply taken as read.
2. To amend the rules on disclosure. An Amendment made in 2005 to Rule 10.20 of the Family Proceedings Rules 1991 relaxed the rules on disclosing information about a case so that a litigant could reveal information to another for certain carefully circumscribed reasons. The recipient of the information, however, could not pass that information on. If the litigant had sent the information to the wrong person, this was clearly an unnecessary obstacle. Straw proposes a further relaxation of the rule so that the recipient of information on a case – for example, an MP – will be able to forward that information to others – for example, a Minister – provided his reason for doing so is the same as the litigant’s reason for disclosing the information in the first place. This reform is thus merely a bit of tidying-up housework.
3. A pilot project to be run from Spring 2009 in Leeds, Wolverhampton and Cardiff, to provide parties to a case with a written record, and, in selected cases, to publish anonymised judgements online. As we have seen, judges already have discretion to publish anonymised judgements if they wish, and there is nothing to prevent them doing so. This reform is all spin and hot air: it changes nothing.
A published judgement proves nothing about the process which produced it. It doesn’t reveal if justice was done, if the case was tried fairly, if all the relevant evidence was examined, if allegations were dealt with properly, etc, etc. Furthermore, under the ‘slip rule’ a judge can correct manifest accidental slips and clerical errors and can add clarification. He can remove ‘linguistic infelicities’ provided that doing so does not alter the substance. The rest follows from the principle that once the judge is ‘functus officio’ (i.e. he has fulfilled his office) then he cannot have another go at trying the case, his job is done and that is final. Note that the judge is not functus officio until the order of the court is drawn up and sealed – so it can happen (rarely) that he completely changes his mind before the order is sealed, though he should give the parties opportunity to make further submissions if that is the case.
Unfortunately the Court of Appeal has started encouraging judges in some situations to add to their reasons if there is an appeal. Fathers 4 Justice consider that unlawful and that the danger is too great that judges will simply make up new reasons to justify themselves and thereby hinder appeal. A judgement is thus often more a work of literature than an accurate record of the court process, and it is the process to which the public must have access if justice is to be accountable and seen to be done.
4. Changes to the rules to allow the media to attend family proceedings in all tiers of court. This is the most controversial and far-reaching aspect of the new reforms, and the details have not yet been revealed. It is most likely, however, that it will mirror the arrangements adopted in New Zealand in 2005. Interested readers can read this for themselves under the Care of Children Act 2004, Part 3, Section 137 (1) (g), http://www.legislation.govt.nz/act/public/2004/0090/latest/DLM317233.html. Briefly, this involves government-accredited media organisations and government-accredited journalists, strict reporting restrictions and severe penalties for breach. The former Lord Chancellor, Charlie Falconer, went on a taxpayer-funded junket to NZ to see how the system worked.
The response of the media was less than overwhelming. In the first 12 months after the Act there were 40 requests to attend, which resulted in only 12 instances when a journalist was recorded as attending, 20 instances when no journalist attended, and 8 where media attendance was not recorded.
In March 2007 Ursula Cheer of the University of Canterbury published a report into the experiment. She reported there has been no increase in the level of reporting on custody proceedings and that opening the Family Court to media scrutiny has done little to improve public understanding of the process. One reporter stated, ‘Because the limitations of reporting mean we can’t be open, we don’t go. What we have is a half-arsed approach to the Family Court. We can see a little bit but can’t report most of it.’
The experiment was a failure, which is, of course, precisely why the UK government is adopting the same model.
Actually, as we have seen, a judge can open his court to anyone he likes, including journalists, so this reform is also all hot air and spin. It changes nothing.
The door to justice cannot merely be left ajar, a half-arsed approach is not justice: the door must be opened fully if public confidence in the Family Courts to be restored.
Let me end by quoting what social reformer Jeremy Bentham said in 1830,
“In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge, himself, while judging, under trial. The security of securities is publicity.”
