Resolution and Transparency in Family Proceedings

Resolution is to hold a major debate at its National Conference on Friday 31 March 2006 on transparency in family proceedings. The Department for Constitutional Affairs (DCA) is shortly to issue a consultation paper dealing with disclosure of information in family proceedings. In July 2005 they issued a consultation paper entitled 'Disclosure of Information in Family Proceedings Cases involving Children' where they made proposals to promulgate rules of court relating to disclosure of information from family proceedings. They sought views as to when and to whom such disclosure should be allowed. The principles upon which the proposals have been put forward, although the welfare of the child was the paramount concern, take other interests into account.

• (i) Providing the sharing of information between those with a legitimate need for that information such as the police and the Crown Prosecution Service who may need to share information with child protection professionals. Social/legal research on family proceedings would lose its usefulness if it could not be disseminated fully.
• (ii) The proper functioning of Parliament and the facilitation of the discharge of functions of members of both Houses of Parliament. MPs are frequently consulted by constituents and disclosure of relevant information to and by MPs may be necessary.
• (iii) The legitimacy of the law. There needs to be a closer correlation between the law and what actually happens. For example, MPs maybe breaking the law by speaking to a constituent about a judgment made in a particular family case, and yet this is happening on a regular basis.
• (iv) The proper administration of justice in family law cases, so that parties to a case can seek advice and support from others.

The paper then went on to list appropriate people to whom disclosure might be made.

The current state of the law is that there are restrictions both on access to family courts and the reporting of family proceedings. Until very recently, s 97(2) Children Act 1989 made it a criminal offence to publish any material which is intended or likely to identify any child as being involved in any proceedings before a Family Court. Section 12(1)(a) of the Administration of Justice Act 1960 had the effect of making it a contempt of court to publish information relating to proceedings before any court sitting in private where the proceedings relate to the exercise of the inherent jurisdiction of the High Court with respect of minors, which are brought under the Children Act 1989 or otherwise relate wholly or mainly to the upbringing of a minor. Therefore, it is a criminal offence for parties to discuss proceedings with anyone outside of the courtroom. Section 62 of the Children Act 2004 (not yet commenced) made changes to the law relating to disclosure of information from family proceedings involving children as follows:

• (i) Section 97(2) Children Act 1989 was amended so that disclosure of information identifying or likely to identify a child (his school or his address) as being involved in family proceedings is only a criminal offence when it is made to the general public, or any section of the general public; so it can now be disseminated privately.
• (ii) Section 12(4) of the Administration of Justice Act 1960 together with various other statutes has been amended to make clear that it would not be a contempt of court to disclose information where rules of court are allowed such disclosure.

Some in the judiciary think that matters ought to go much further. In Re D (Intractable Contract Dispute: Publicity) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226, at para [4], Munby J stated:

'There is much wrong with our system and the time has come for us to recognise the fact and to face up to it honestly if we do not want to risk forfeiting public confidence. The newspapers - and I mean newspapers generally, for this is a theme taken up with increasing emphasis for all sectors of the press - make uncomfortable reading for us. They suggest that confidence is already ebbing away. We ignore the media at our peril. We delude ourselves if we dismiss the views of journalists as unrepresentative of public opinion or is representative only of sectors of public opinion we think we can ignore. Responsible voices are raised in condemnation of our system. We need to take note. We need to act. And we need to act now.'

Two weeks earlier in Re B (A Child)(Disclosure)[2004] EWHC 411 (Fam), [2004] 2 FLR 142 at paras [101] and [103]:

'And we must have the humility to recognise - and to acknowledge - that public debate and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice ... We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.'

In 1994, the solicitor Sarah Harman was found in contempt of court for passing case details to her sister, Harriet Harman, the then Solicitors' General. Such a public case brought these issues to the fore.

Resolution's stance has been to support the status quo. It supports more openness in family cases involving children but case reports should be anonymised. Cases should not be heard in public but judgments should be made in public, suitably anonymised. Current prohibitions are so tight that there cannot be any sensible debate and accusations that the family justice system favours one party or another cannot be examined. The powers of the State are so extensive in matters affecting children that cases should not be in private behind closed doors. The CAFCASS report should address the issue as to whether publicity in a given case would be harmful or not to the children. A further issue is that under the current prohibitions, experts cannot be identified. This leads to a problem of identifying poor quality experts reports. There may be difficulties with experts not wishing to be identified, but on balance it is in the public interests for them to be known.

The family proceedings courts (FPCs) are already open to the press. If the press can be admitted to the FPCs then in Resolution's opinion there seems little justification for refusing them entry to the county court and the Family Division. The Court of Appeal sits in open court when hearing children cases. Children's identities are concealed, and no harm comes of this. The House of Commons Constitutional Affairs Committee published a report in February 2005 recommending a greater degree of transparency in the family courts such as to allow press and public into the family court under appropriate reporting restrictions and subject to the judge's discretion to exclude the public. Courts in other jurisdictions are able to be much more transparent when dealing with family law cases and Scotland is much more open that we are in England and Wales. The questions for debate are: should judgments normally be delivered in public unless the judge in question makes a specific order to the contrary? In general should we be seeking to do away with the secrecy deeply embedded in our court system or is this essential for its proper functioning? The outcome will be published in the May issue of Family Law.