UK Family Law Reform
Family courts should be led
out of the dark ages
Ministry of Justice consultation
paper on family law fails to meet proposed
new approach to openness David Pannick, QC
Jeremy Bentham believed that
“Where there is no publicity there is no
justice”. To open up the courts promotes high standards because
the judge himself, while trying, under trial”. And “in the
secrecy, sinister interest and evil in every shape have full swing”.
The consultation paper Openness
in Family Courts – a New Approach, published
last month by the Ministry of Justice, adopts a different principle.
“new approach” to “openness” is to maintain
the extensive secrecy that
afflicts family law.
This is a depressing story
of loss of nerve by the departing Secretary of
State for Justice, Lord Falconer of Thoroton. Last July, he published
consultation paper that recognised that greater openness is required
family court proceedings “so that people can understand, better
decisions and have greater confidence”. The document proposed
that the media
should be allowed, “on behalf of and for the benefit of the public”,
attend proceedings as of right, though the court would have a discretion
exclude them if appropriate to do so in the particular circumstances.
could apply to the court to be permitted to attend. Reporting restrictions
would ensure anonymity for the witnesses and parties.
Last month, the new consultation
paper reversed direction. Lord Falconer
explained that “children, young people and the organisations which
support and represent them were strongly opposed to allowing the media
the family courts as of right”. So because “children must
come first”, the
Government believes that the “openness” of family courts
will be improved
“not by the numbers or types of people going in to the courts,
but by the
amount and quality of information coming out of the courts”. This
consultation paper is poorly reasoned and wrong in principle. There
First, it proceeds on a false
assumption that to give the media a right of
access to family law courts would damage the welfare of children. But
there are clear restrictions on reporting any details that may identify
child or the family, why is “the welfare of children at stake”?
In the Court
of Appeal, hearings of family law cases are almost always in public,
reporting restrictions imposed. In magistrates’ courts, the press
currently permitted to attend family proceedings, again with restrictions
reporting any information that could identify those involved. The document
presents no evidence to suggest that this has caused any damage to the
interests of children.
Secondly, the new consultation
paper fails to recognise the strength of the
case for allowing the press to attend. Family courts exercise extensive
powers over the lives of those who come before them: they may order
to be taken into care, or which of two separated parents should have
of a child, and what financial provision should be made on a divorce.
such important issues, the very highest standards of justice are required,
and the spur of publicity advances that goal. Secrecy is a breeding
for complacency and injustice. It also promotes rumour and speculation,
which inevitably damage public confidence.
Thirdly, the ministry’s
conclusion that the media were seen “as only
interested in reporting on certain types of (often high profile) case”
a fundamental misunderstanding of the function of a free press. It is
the media, not the Government or children’s organisations, to
cases to attend and why. And the existence of a right to do so, however
often it may be exercised, would itself improve public confidence and
promote higher standards in those courts.
Fourthly, the suggestion
that transparency and confidence will instead be
promoted by the publication of more official information confirms the
inability of the ministry to understand the issues. There needs to be
to courts by an independent press so it can see, hear and report what
being done in our name. It is no substitute that those in positions
authority consider which additional items of information they are prepared
The consultation period on
these new proposals runs until October 1. The new
Secretary of State for Justice, Jack Straw, should read his Bentham
decide that the interests of children (though not necessarily the interests
of the organisations that represent children) are best protected by
up the legal system in order to foster informed debate and improve
standards. As Justice Louis Brandeis, of the United States Supreme Court,
pointed out: “Sunlight is said to be the best of disinfectants,
light the most efficient policeman.” It is high time for family
law to be
led out of the dark ages.
The author is a practising
barrister at Blackstone Chambers in the Temple
and a Fellow of All Souls College, Oxford
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