FAMILY POLICY BRIEFING 5 ‘Openness and transparency’ in family courts: what the experience of other countries tells us about reform in England and Wales Department of CONTENTS May 2009 Social Policy and Social Work Introduction 1 Why did press/public access to family courts become an issue in other jurisdictions? 2 This paper was written How is press access working – and for whom? 9 by Julia Brophy with Key findings and conclusions 14 Ceridwen Roberts Introduction and reviews the legislative experiences of other jurisdictions. It discusses the There is a long history to the debate concept of transparency, that underlies about who should attend family court debates on family courts and provides hearings in England and Wales, and a summary of the consultation papers, how such hearings should be reported highlighting how this issue arrived on the to a wider audience. Since 2006, the political agenda. It reviews the history government has issued two consultation and current position regarding press papers on the subject (DCA, 2006; 2007b), and public access to family courts in posing questions about whether family other, comparable, jurisdictions. It also courts should be open to the press and explores how some jurisdictions have general public as both criminal and other taken a more critical look at ‘transparency’ civil courts are. In December 2008 it in family courts and have introduced announced what it was intending to do innovative approaches to making the (MoJ, 2008) and this has been confirmed work of family courts more accessible to by recently published guidelines. Since both the families involved and the wider late April 2009 family courts have community. discretion to admit the press on a case by case basis. Private and Public Law in England The issue arises partly because there and Wales have been some allegations both about • ‘Private’ law proceedings are concerned levels of public confidence in family with disputes between individuals arising courts and the legitimacy accorded from marriage, divorce and separation, civil to court decisions in both private and partnerships, domestic violence along with public law cases, as well as concerns issues of residence, contact and support about some court users’ understanding of children, and property and financial of court processes and decisions. Some obligations. argue that greater transparency and thus • ‘Public’ law proceedings focus on increased legitimacy would be achieved disputes between the state and parents/ by admitting the press to hearings, carers regarding ill-treatment of a child, applications about contact with a child BARNETT HOUSE providing more information about looked-after by the state, emergency 32 WELLINGTON SQ. court procedures and relaxing rules on protection proceedings, adoption etc. OXFORD OX1 2ER disclosure of information about cases. This paper examines the issues (sometimes called Child Protection TEL 01865 270325 Courts). FAX 01865 270324 surrounding public and press access to www.spsw.ox.ac.uk family hearings in England and Wales ISBN 978-0-95623-0-1 £5.00 ‘Transparency’ Access to family courts in England The issue of transparency in the family courts raises questions and Wales of what should be transparent, to whom and for what The current debate about press access to family purpose and how this relates to “privacy” and confidentiality. hearings is fuelled by several factors; some are new, There have been two broad aspects to discussion about others recurrent over many years, some arise from “transparency” in the context of the family courts: what are termed ‘public’ law proceedings, others from • Increased openness in allowing people into family courts ‘private’ law cases (see box on page 1). would allow for greater public scrutiny of court processes and decision making • More information coming out of family courts for those Who can attend which family court taking part in proceedings and others. in England and Wales? Both dimensions aim to improve the perceived legitimacy The current rules about who may attend ‘family of the courts rendering them less subject to the charge of proceedings’ are complex and vary according to the “secrecy” and suggestions that unfair decisions are being made court hearing a case. Five tiers of court hear family cases behind closed doors. but most cases are dealt with in the first three: the Openness in allowing the press in Magistrates’ Family Proceedings Court, the County Court It is argued that allowing the press access to court hearings and (to a lesser extent), the High Court. All these courts to act as ‘witness to proceedings’, reporting on the process hear private and public law cases. Cases concerning but not revealing intimate details about a child or parent’s life children have mostly been heard in private: only the will improve press understanding of how difficult cases are parties, their lawyers and those immediately involved decided and therefore improve reporting on the courts. This will enable people to feel more confident about why courts in proceedings were permitted in court. However, reach the decisions they do. the rules in 2008 allowed the press to observe some hearings, for example they could attend the Magistrates’ Openness in getting information out Family Proceedings Court in cases concerning children It is argued that providing written information on family court (unless excluded for a particular reason). They could not, processes for those involved in proceedings will improve their however, attend adoption proceedings. understanding of what to expect during proceedings. In the County Court and the High Court the rules Providing more written judgments [rather than leaving lawyers to summarise oral judgments] will, it is claimed, help governing who may attend a hearing depended on the participants better understand why the court reached the type of application. For example, judges have discretion decision that it did in their case. Providing more anonymous to permit the press and the public to attend when judgments that can tell the wider public about what issues hearing applications relating to financial disputes and were at stake in cases will help reassure those who feel that disputes over children. In practice, most cases were held court secretiveness is a mask for bias or bad decision making. in private but some proceedings (contested divorce Issues cases, judicial separation and nullity cases) are heard Any move towards greater openness of the family courts in open court. And in the High Court some judgments needs to examine questions like, are given in open court if the judge considers a case • Will allowing press access to family court hearings addresses an issue of public interest. facilitate informed public scrutiny of their work? Hearings in the Court of Appeal are usually open • Will the information provided inform and educate the to both press and public – but this court hears appeals general public about the process and decision-making? against decisions of lower courts, it is not a ‘trial’ court • Is press publication of information about individual cases in and does not hear parties or witnesses. the public interest? • Will increased openness improve confidence in the work of What information can be reported family courts? from a case in England and Wales? • Will individuals’ privacy be compromised by greater press/ public access to hearings and case information? Historically, the privacy of family/children courts has been based on the view that, unlike the criminal courts, This briefing paper explores these issues as they have been experienced in other jurisdictions when they opened up some these courts deal with family and personal matters of their family court hearings. which are private to the individuals involved. There are therefore many more reporting restrictions than in criminal justice cases. Where children are the focus of proceedings, issues of health, safety, protection and welfare are central. But the law on what information 2 FAMILY POLICY BRIEFING 5 ‘Openness and Transparency’ in family courts: the experience of other countries Background to consultations in England and Wales 2005 Constitutional Affairs Select Committee reported on the In addition it proposed to operation of the family courts. It recommended: • Change the rules on disclosure to make them less restrictive • The press and public should be allowed into family courts • Protect the identity of children beyond proceedings under appropriate reporting restrictions, subject to the • Provide for the press to be able to apply to attend hearings court’s discretion to exclude the public on a case-by-case basis • Anonymised judgments should normally be delivered in • Make family court reporting arrangements consistent court unless the court makes an order to the contrary. • Change the law on whom may attend adoption proceedings • The press continue to be restricted to publishing only those 2008 December Family Justice in View was published (MoJ, matters made public by the court. 2008). This was based on a re-assessment of responses to 2006 Publication of Confidence and Confidentiality – the second consultation (DCA, 2007b) and outlined what improving transparency and privacy in family courts (DCA, the government under a new Secretary of State for Justice 2006). The proposals for consultation included: proposed. The overriding principle of the second consultation • The press be allowed to attend court proceedings “on behalf paper of ‘children come first’ had been replaced by three key of and for