“Where there is no publicity there is no justice”. Bentham’s wisdom hovered over Sir Andrew McFarlane while writing “Confidence and Confidentiality: Transparency in the Family Courts” which provides the first step to remove the veil from the face of the family court in England and Wales. This report tackles the issue at the heart of the debate: how can we maintain the confidence of the public in family courts while maintaining the confidentiality of the parties involved? The answer to this lies in understanding what “transparency” means in the context of the family court and how this can satisfy the public interest in the family court. When considering the public interest, principles of open justice, and human rights, we can see the case for making the family court more transparent.
THE CASES BEFORE THE FAMILY COURT
The Family Court considers the most difficult and important cases. The Law Commission aptly summarises that the “powers exercised by Family Court judges on a daily basis are amongst the most drastic that any judge in any jurisdiction is ever empowered to make”. The Family Division addresses legal issues relating to children, the breakdown of relationships, some domestic abuse cases, and the High Court’s Family Division considers international child abduction cases. The highly sensitive nature of the cases has led to the Family Court being covered with legislation which protects the privacy of the parties, but which also obscures the Family Court from the public. For example, Administration of Justice Act 1960 s.12, Children Act 1989 s.97 (2), Family Procedure Rules 2010 r.12.75 (1), and Practice Direction 12g. The key reason which lends the family courts to operate behind closed doors is to maintain the privacy of the children and the parents involved in the case. A provision that is pertinent to consider in this context is article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life. This principle of privacy also applies in financial remedy proceedings where financial information remains confidential as these proceedings remain a “quintessentially private business…[because] the risk of having [the details] heard in open court may force him or her to settle on unfair terms”. (DL v SL).
TRANSPARENCY IN THE FAMILY COURT
The key premise of the argument is how we understand transparency in the Family Court. Transparency is a principle of open justice where the publication and dissemination of judgments allows for accountability, scrutiny, and critique of judicial decisions. However, when drawing on a principle from article 8 ECHR, namely that the matters in the Family Court are the private matters of those involved, we do not need the intricate details to be public. Detailed accounts of individual cases using biographical data and, particularly when discussing abuse and other traumatic information, do not need to be open to the public. Subsequently, when considering “opening up” the courts this article does not advocate that all details should be laid bare but rather that the principle outlined by Caroline Coulter, Director of Lawyers for Children should be followed: “the personal details of identifiable individuals do not have to be revealed in reports. In child protection proceedings what is necessary is [that] the process is examined”. Publishing only the key information also deftly addresses the concern that anonymising the children would undermine the value of reporting Family Court judgments, particularly involving abuse. Ultimately, despite the public interest in how judgments are decided upon in the family courts there remains “no legitimate reason for the public to be given access to detailed evidence”. This betrays a conflict within the public interest argument: if there is public interest in the Family Courts why is there not an interest in the detail of the cases? This is precisely where the confidentiality requirement applies. Even if we accept that there may be a public interest in the details, there still remains an impetus to safeguard the children involved. This will subsequently draw more focus on the rationale for decisions which should be published.
THE BALANCE TO BE MET
An underlying assumption in favour of transparency is that there is in fact public interest in the Family Courts. In 2020, there were 224,902 cases heard in the Family Courts. Many of those cases considered issues which concern vulnerable children. The judges, using their discretion, are guided by family practitioners to make decisions regarding where a child lives, who the child lives with, and emergency orders – to just name a few. These are vital decisions which will impact the trajectory of each individual child as well as the family involved. As the Family judiciary are responsible for making such decisions, there is a significant impetus to ensure that these decisions are not being made in the dark where judges can hide behind a cloak of invisibility. The gravitas of the issues at play justifies a more open and transparent family court. The media interest is indicative of the public interest in the Family Courts. As the President of the Family Division noted “the level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm”. This is demonstrated by the activities of The Bureau of Investigative Journalism, Scrutiny, and The Transparency Project all of whom have made great strides to encourage a more transparent Family Court. Indeed, media organisations such as Media Lawyers Association, the Press Association, and the News Media Association have all contributed to the public consultation regarding an open Family Court. Overall, this demonstrates the overwhelming evidence showing legitimate, extensive, and sincere public interest in the Family Courts. This, combined with appropriate anonymisation, paves the way for a more transparent Family Court.
CONCLUSION
To conclude, this article does not advocate for a completely open court which allows intricate details of private events in a child’s or families’ life to be disseminated throughout the land. It asks for a transparent court where the judgments themselves are publicly available, while safeguarding the parties involved through anonymisation and sensitive summaries providing only the legally significant details, to ensure that there is sufficient publicity. The Family Court now, with the publication of the report by McFarlane, has an opportunity to take the first significant strides in making the Family Court more transparent.