Open justice? Case closed
The law governing the reporting of family court hearings should be relaxed for the sake of transparency
In 1971, the county courts of England and Wales were closed down by a seven-week postal strike. Low-value civil cases, including a compensation claim I had brought against my local laundry after it lost a rather fine shirt, were simply put on hold until the strike ended. Other courts were less reliant on the post and struggled on.
All courts have now been affected by the coronavirus pandemic. The UK Supreme Court managed to switch pretty seamlessly to video conferencing, with lawyers and justices working from home: proceedings were livestreamed, just as before.
But most courts are less well resourced. Just over 45 per cent of the 371 courts and tribunals in England and Wales were kept open for essential face-to-face hearings, with other cases relying on audio or video links. Many court users, especially those described as digitally challenged, were put at a disadvantage.
Even so, senior judges stressed the importance of open justice. Reporters were told they could attend face-to-face hearings in line with public health guidelines. The law was changed to let people watch remote hearings online. All courts released their judgments electronically. Except, that is, the family courts. Well-meaning efforts over the past 15 years have proved ineffective in opening them to public scrutiny.
Some of those who appear regularly in the family courts think the current reporting restrictions rightly protect children who are caught up in legal disputes through no fault of their own. Why should they be subjected to playground gossip and social media ridicule? The answer to that question is illustrated by two recent cases.
In one, a designated leadership judge at the Central Family Court in London was asked to make arrangements that would allow a father to see his four-year-old child. First, Judge Tolson QC had to decide whether the father had raped the child’s mother on two previous occasions.
After hearing evidence, the judge concluded that sex had been consensual. On appeal, Ms Justice Russell found that Tolson’s judgment “was unjust because of serious procedural irregularity and multiple errors of law.” It was “so flawed as to require a retrial”.
Reporters could have attended the original hearing but they had no way of knowing in advance what the case was about. In any event, there are complex restrictions on what they would have been able to report — though they could have applied for these to be lifted. Judge Tolson saw no reason to publish his judgment. So his flawed understanding of the current approach to sexual consent became known only when the mother chose to appeal.
Nobody suggests that publicity has harmed the child, who is now five: we don’t know the youngster’s name, or sex, and we could not identify the parents even if we found out who they were. Why not change the law and allow fact-finding hearings like this to take place in public, subject only to anonymity for the parties?
The second case is very different. It was heard by Sir Andrew McFarlane, the senior family judge in England and Wales. He concluded, on the balance of probabilities, that Sheikh Mohammed, ruler of Dubai and prime minister of the United Arab Emirates, had abducted his daughter Shamsa from the UK in 2000; that the sheikh had ordered the kidnap of Shamsa’s sister Latifa in 2002 and again in 2018; and that both women had been detained against their will in Dubai for much of the past 20 years.
The court had been asked by Sheikh Mohammed to order the return of two younger children, 12-year-old Jalila and Zayed, eight, after their mother, Princess Haya, had brought them to London. She feared they would be abducted by agents of her former husband, and McFarlane concluded that publication of his findings could help to protect them. After attempts to overturn his decision proved unsuccessful, reporters were allowed to publish much of what they had heard in court.
As president of the High Court family division, McFarlane is currently considering whether to relax reporting restrictions. His views will be informed by an important new book by Clifford Bellamy called The “Secret” Family Court — Fact or Fiction? (Bath Publishing, £20). The author, a retired judge, takes issue with the media’s frequent use of what judges regard as a pejorative term to describe the family courts: they are private, say judges, not secret. But Bellamy rightly concludes that there is not enough scrutiny of what the courts do. That, he adds, has undermined public confidence and cast doubt on the ability of family judges to deal fairly with disputes over the welfare of children.
Bellamy’s main recommendation, supported by McFarlane’s predecessor Sir James Munby, is that parliament should repeal section 12 of the Administration of Justice Act 1960 — a reform that appeared liberal 60 years ago but which now puts parents as well as reporters at risk of imprisonment if they publish pretty much anything about a private family hearing without the court’s permission.
Bellamy is right. Nobody can object to anonymising family members. But the public will have no confidence in family judges until they can be seen to be delivering open justice.
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