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Media must be allowed into family courts, says Sir Mark Potter

Date:12 APR 2010

By Frances Gibb
Britain's most senior family judge has said that family courts should be opened to the media to dispel the "myths and inaccuracies" surrounding the system.

Sir Mark Potter, President of the Family Division, told The Times that he favoured allowing the media into children's care cases, where there was "the strongest case" for greater transparency.

He supports allowing similar access to private family disputes over money and children, subject to the discretion of the judge. In all cases the anonymity of the children involved, and where appropriate the parties, must be protected, he said.

Judges should be able to exclude the media in certain disputes between couples where there may be "prurient" interest because of their "sensational" nature but where the facts were of no concern of the public, he said.

In a rare interview, Sir Mark also called for pre-nuptial agreements to become all but binding; deplored the Government's policy of charging big fees to litigants in civil and family cases; and backed greater legal rights for unmarried couples.

Sir Mark, 71, said that "often tendentious and misleading descriptions in the media have distorted the public perception of the legal process and inhibited its understanding of how that process works".

But the balance, he said, "now seems to me to have come down in favour of increased openness by permitting the attendance of the media, subject to provisions to protect the anonymity of children, or indeed the parties in appropriate cases". He admitted that there were concerns among some judges who dealt with these cases daily.

The likelihood was that the identity of people involved would emerge, even if local press reports preserved their anonymity, because within communities it would "become fairly widely known who was involved".

There was a case, Sir Mark said, for saying that couples should not have to "wash their dirty linen in public" when they came to court to settle matrimonial disputes. "They might have a number of embarrassing issues to air that are of no interest whatever to the public ... save for sensationalism and prurience." That was why, in such cases, judges should have discretion to hold hearings in private, he said.

But he added: "In an age of transparency and amidst largely misplaced criticisms of 'secret justice', it is clear that the public ... should have confidence in the judiciary." Laying to rest some of the "myths" about family justice, he said that it was "simply untrue" that parties were unaware of the case against them (for instance, when children were being removed into care) or that they were denied seeing the evidence before the courts. They had a right to see all the evidence, he said. They also had the right to appeal and were entitled to legal representation and legal aid.

Citing another area of reform, he said that he did not favour legislation to make pre-nuptial contracts binding - at present they are only "persuasive" in disputes over assets between divorcing couples. He favoured strengthening the authority of such contracts between couples, however, "as a sensible means of dealing with the fortunes of the rich".

Sir Mark said: "I consider that great weight should be accorded to any such contract where the parties were legally advised at the time. It should usually be decisive."

He said that he would retain a "long-stop" judicial discretion for the prevention of injustice, so that judges wouldnot have to follow such contracts where, for instance, one side had not disclosed all their assets at the time; or circumstances had radically changed during a marriage in an unforeseen way.

Sir Mark also made clear his strong opposition to government policy to recoup the costs of running the civil and family courts through charging high fees to litigants.

The "dramatically large increase" for cases over whether a child should be removed from its home had already led to a drop in the number of care cases brought by local authorities, which gave rise to "considerable concern", he said.

Councils were under a statutory duty to take proceedings to protect children. "It is not a question of a voluntary taking advantage of the system in the way that can be said of ordinary citizens going to law," he said.

Although £40 million had been provided to compensate councils over court fees, this funding was not "ring-fenced". He anticipated that there would be a similar damaging impact in the realm of private matrimonial disputes where it would "bear heavily upon those who, though above the exemption level [for paying fees] are of modest means and will not be able to stand the expense".

The result, he said, would be that they would not be able to come to court to sort out problems over contact or access to children, for instance, or, "what concerns as a judge, they will proceed as litigants in person [without a lawyer]".

That caused "enormous problems" both in procedure and the process of a case resulting in delays, because of the judges' need to give them full opportunity to express their points which counsel would express more succinctly, he said.

In another area of potential reform to family justice - the law on unmarried couples - Sir Mark made clear that they should have greater legal rights as proposed recently by the Law Commission, the law reform body. The Government has shelved the proposals for the time being, which was a "surprise and disappointment", but the Law Commission had made a "totally convincing case", Sir Mark said.

This article was originally published in The Times on 20 October 2008. Reproduced with the permission of The Times, Copyright 2008 Times Newspapers Ltd.