Private Client: Open House

- 30 November 2006;LegalWeek.com

In July 2006, the Department for Constitutional Affairs (DCA) published a consultation paper entitled "Confidence and confidentiality: improving transparency and privacy in family courts’.

The executive summary at the start of the paper states that there is a case for making family courts significantly more open "so that people can understand and better scrutinise decisions and have greater confidence". The summary goes on to indicate that the DCA wishes to consult on a number of proposals related to the opening up of the family courts, of which the most radical are:

. "to allow the media, on behalf of and for the benefit of the public, to attend proceedings as of right, allowing the court to exclude them where appropriate to do so and, where appropriate, to place restrictions on reporting of evidence"; and

. "to allow attendance by others on application to the court, or on the court’s own motion".

In something of an understatement, the summary concludes by suggesting that the proposals "mark a major change in the way family courts conduct their business". Perhaps more contentiously, the proposals are described as "a major step forward towards the dual objective of confidence and confidentiality."

Several questions arise from this:

. should the proposals be implemented, and what are the substantive arguments on each side?

. how would the day-to-day running of the family courts change if the proposals were to be implemented? and

. is this proposed method of opening up family courts the best way for the public to better understand and acquire greater confidence in the workings of the family justice system?

Arguments for greater openness

In 2004, a solicitor involved in a child-care case, Sarah Harman, was sufficiently concerned about a perceived miscarriage of justice that she sent some of the case papers to a number of third parties, including her MP and the then Solicitor General, Harriet Harman (who happened to be her sister). Sarah Harman was subsequently held to be ( prima facie) in contempt of court; she was reprimanded by Mr Justice Munby for having disclosed court documents without the court’s leave.

Ms Harman claimed that she owed a duty to her client and should be entitled to bring a case involving an alleged miscarriage of justice to the attention of government law officials and her MP. In his judgment, the judge stated: "There should be no 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."

The Harman case, and the views expressed by Mr Justice Munby, have led to a wider debate about openness within the family justice system. Family courts have increasingly come under fire in recent years for allegedly operating "in private’. Fathers’ groups have frequently accused the courts of being biased in favour of mothers in cases involving children and have suggested that the courts are not sufficiently accountable. The point has been made that almost all civil and criminal courts are open to the public and that family courts are therefore distinguished by operating, for the most part, "behind closed doors’.

There has also been recent publicity about apparent miscarriages of justice in public law cases involving children and local authorities, as well as concern being expressed about the role of experts in children cases. The consultation paper highlights the fact that there is considerably more openness in the family courts in a number of other jurisdictions, including Australia and New Zealand.

Arguments against greater openness

Those opposing the proposals appear mainly to welcome — in principle — proposals to increase public confidence in the family justice system. They stress, however, that there must be a balancing act between openness and confidentiality and also make the point that, above all, children have the right to have their privacy and identity protected.

While acknowledging that certain sections of the media can play an important role in exposing miscarriages of justice and calling public institutions to account, they challenge the apparent assumption that the media should perform, on behalf of the public, the role of the family courts’ "watchdog’.

Concern is also expressed about the resource implications; the consultation paper acknowledges that many courtrooms do not have space for additional observers and the potential time and costs involved in applications either to attend or to exclude attendance could be substantial. The impact on the legal aid budget — already severely threatened by the Carter proposals — could be significant. There are already major delays in the family courts; the increased court time required to deal with frequent applications concerning the attendance of the media and/or the public would inevitably lengthen hearings and increase delays in the system.

Family lawyers report that a question most often posed to them by clients is whether hearings take place in private; not surprisingly, the common reaction to the assurance of confidentiality is relief. There must be a real concern that parties to family proceedings — especially those involving particularly sensitive aspects such as domestic violence or abuse — would be inhibited from giving full and free information if there were a possibility of third-party/media presence during the hearing.

As to financial cases, there is an absolute requirement on both parties to provide full and frank information both to each other and to the court about their respective financial positions; such information includes details of bank accounts, private business accounts and other potentially sensitive information. Parties to such proceedings would argue that they must be entitled to the protection of confidentiality within the context of the court proceedings; it is certainly difficult to conceive of any financial cases in which access by the media and/ or public would be appropriate.

Possible alternatives

The consultation paper highlights the work of the courts inspectorate and questions whether inspectors should be entitled to attend family court hearings as of right, without the need (as is presently the case) to make a prior application. The inspectorate’s current role is to oversee the work of the family courts and the Children and Family Court Advisory and Support Service).

It could be argued that an independent body such as the inspectorate is more likely than the media (which inevitably is likely to have its own agenda) to achieve "the dual objective of confidence and confidentiality". Its role could be significantly enhanced to allow, for example, for consideration of the judiciary and for recommendations to be made regarding improvements in the operation of family courts. The inspectorate could be granted the power to attend hearings as of right (subject to an application by either party to exclude attendance) and could be required to publish regular reports.

Family court judgments are currently published on a somewhat ad hoc basis, mainly by reference to the importance of the point of law in issue. Far wider publication of judgments, at all court levels, would surely assist in a better understanding of the family justice system. The judgments would, as at present, have to be made suitably anonymous. If, however, the media (and, indeed, any other interested parties) were to see the very careful methods by which judgments are usually delivered (with references in children matters to the welfare checklist and in financial applications to the section 25 factors), a better under-standing of the system and appreciation of the often numerous complications could be developed.

The future

Responses to the consultation paper were due by 30 October. The DCA has indicated an intention to move forward as swiftly as possible, while taking into account the submissions of all interested parties. Developments are awaited with interest.