UK Family Law Reform

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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 it “keeps
the judge himself, while trying, under trial”. And “in the darkness of
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. The
“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 a
consultation paper that recognised that greater openness is required in
family court proceedings “so that people can understand, better scrutinise
decisions and have greater confidence”. The document proposed that the media
should be allowed, “on behalf of and for the benefit of the public”, to
attend proceedings as of right, though the court would have a discretion to
exclude them if appropriate to do so in the particular circumstances. Others
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 protect,
support and represent them were strongly opposed to allowing the media into
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 latest
consultation paper is poorly reasoned and wrong in principle. There are four
main defects.

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 if
there are clear restrictions on reporting any details that may identify a
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, with
reporting restrictions imposed. In magistrates’ courts, the press is
currently permitted to attend family proceedings, again with restrictions on
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 a child
to be taken into care, or which of two separated parents should have custody
of a child, and what financial provision should be made on a divorce. On
such important issues, the very highest standards of justice are required,
and the spur of publicity advances that goal. Secrecy is a breeding ground
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” shows
a fundamental misunderstanding of the function of a free press. It is for
the media, not the Government or children’s organisations, to decide which
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 access
to courts by an independent press so it can see, hear and report what is
being done in our name. It is no substitute that those in positions of
authority consider which additional items of information they are prepared
to reveal.

The consultation period on these new proposals runs until October 1. The new
Secretary of State for Justice, Jack Straw, should read his Bentham and
decide that the interests of children (though not necessarily the interests
of the organisations that represent children) are best protected by opening
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, electric
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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