There is mixed access to the family courts in England and Wales. The public and the media have been afforded access to family proceedings at the outer layers of the magistrates, the Court of Appeal and the House of Lords, but the middle courts – namely the county courts and the High Court – have in the main been the preserve of the parties, their representatives, outside agencies such as the Children and Family Court Advisory and Support Service (Cafcass), and experts. Maintaining the balance between privacy and confidentiality, while addressing the issues of transparency and public confidence in our family court system is the dilemma the Department for Constitutional Affairs (DCA) is trying to address in its consultation paper ‘Confidence and Confidentiality: Improving Transparency and Privacy in Family Courts’.
The DCA considers that, as our society and culture diversifies, the family courts must develop to ensure they represent and protect the public. It feels that a legal framework can only protect the people it serves if those people have knowledge of, and confidence in, the system it operates.
A new legal framework?
The paper consists of a series of proposals to make changes to attendance and reporting restrictions so that there is consistency across all family proceedings. The proposals include allowing the media greater access to proceedings. The court would retain the power to restrict reporting to provide for the anonymity of those involved in family proceedings (including adults and children), but the restrictions could be increased or relaxed as a case requires. This would permit the media to publish legal arguments and decisions, but in a format that would not identify the individuals concerned.
A new criminal offence of breaches of reporting restrictions would be introduced, but the courts would also retain their existing powers to deal with any contempt of court, particularly where additional reporting restrictions have been imposed. Members of the public would be able to attend court hearings as interested parties, either on application to the court or on the court’s own motion. The DCA also wants to consider the position for wider access for members of Parliament, court inspectors and local councillors so that they can see for themselves how the system works in principle (and, presumably, in practice).
The paper also suggests that adoption proceedings should be a special case in order for there to be transparency in the process up until the placement order is made, but thereafter the proceedings would remain private.
One of the most important considerations relates to how adults who have been involved in family proceedings as children should obtain objective information about those proceedings. The paper puts forward the suggestion that they should be given either a transcript of judgments, a short summary of the judgment and copies of the orders made, or recordings of hearings held on the court file. The difficulty is to balance the interests of those who do not want the information, and to ensure that they are adequately protected, with those who do want access to the information.
The Clayton case
As the DCA published the paper on transparency, the case of Clayton v Clayton (2006) was heard by the Court of Appeal.
Lord Justice Ward was keen to emphasise that the case “is not about the important policy issue relating to whether or not family proceedings should be heard in private or in open court. What this appeal is about is the extent to which parties to proceedings are entitled to put into the public domain information about themselves and their children which has derived from the disputes between them and which has been the subject of proceedings under the Children Act 1989 held in private”.
He went on to say that “cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts and the lack of knowledge about what happens in them easily lead to the accusation of ‘secret justice'”.
In Clayton, the father, a campaigner for fathers’ rights, appealed against the decision of Mr Justice Headley to continue an injunction restraining him from publishing various matters concerning his daughter (C), aged seven.
During the course of Children Act proceedings commenced by C’s mother, the father abducted C and took her to Portugal. He was arrested and, after pleading guilty to child abduction, sentenced to imprisonment. The abduction and the case received a great deal of publicity and featured in a television documentary. After his release the father wanted to make a video diary, featuring C and retracing their steps during the abduction. The injunction was continued on the grounds that C’s freedom from publicity and right to private life under the Human Rights Act 1988, Article 8, outweighed her father’s right to freedom of speech under Article 10 and that such an approach broadly reflected the policy of Section 97 of the Children Act 1989.
The appeal was allowed, but the injunction was replaced with a prohibited steps order. The father was free to talk about how the amicably agreed contact arrangements were better than achieving less satisfactory results via litigation, but he could not make the video diary about the abduction of his daughter, which would be a “self-exculpatory publicity exercise” in relation to his criminal activity, engaging C’s welfare issues and infringing her Article 8 rights.
While Clayton was a landmark judgment, it was certainly not the ‘end of anonymity’ in family courts, as some national newspapers trumpeted. It was a responsibly handled decision that balanced complex and conflicting needs. It also threw into sharp relief the challenges and areas of debate that lie ahead as we move towards a more open family court system.
Implications and concerns
The combined effect of the Clayton case, followed shortly by the release of the DCA consultation paper, has created both excitement and disquiet among those who practise in the family courts. On the one hand, the lack of transparency in certain aspects of family court proceedings makes it an easy target for criticism and attack. A database of anonymised judgments in all family cases could be the future, although the danger still remains that very prominent people could still be readily identified from the instant facts.
On the other hand there are legitimate concerns that the presence of interested parties or the media may intimidate or hinder the way evidence is given or stand in the way of potential settlements and agreements.
‘Suitably anonymised judgments’ may not be anonymous enough, so that confidentiality and privacy become compromised.
Additionally, selective media coverage could provide a skewed picture of family proceedings. One party to a case may have objections to the presence of an interested member of the public. Experts may be unwilling to express their opinions for fear of adverse press publicity and witnesses may be reticent to give evidence.
A delicate balancing act is called for by the DCA and it remains to be decided whether the washing of family laundry in the public eye will create confidence in the family courts while still protecting those who are most vulnerable.