UK Family Law Reform

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Landmark decision backs ministers' wishes

Commentary by Frances Gibb

The lifting of gagging orders in the case of the couple battling to prevent a fourth child being adopted is a landmark step in the move by judges towards open family courts. It is the first such ruling made in current care proceedings.

Liz Hartley, a partner in Reynolds Porter Chamberlain, who represented The Mail on Sunday in the case, hailed the ruling as a “landmark decision about open justice in the family courts and the circumstances in which the media should have rights of access to, and be able to report, hearings in the Family Division”.

She pointed out that Mr Justice Munby had said that the issues raised “important points of high principle about open justice and the role of the media in exploring and exposing possible miscarriages of justice”.

He had also acknowledged the vital role of the media “in ensuring the proper functioning of our democracy, as also in furthering the rule of law and the administration of justice”.

The decision coincides with proposals from ministers to open up the family courts and to make their proceedings more transparent.

Judges are broadly in favour of exposing their courts to greater scrutiny, not least to shake off what one judge, Lord Justice Wall, has called the “canard of secret justice”.

Family judges have increasingly been the target of campaigns by fathers’ groups and others who maintain that their decisions over where children should live and over contact are biased.

This week Lord Justice Wall repeated his call for open courts, saying: “It is unacceptable to me that conscientious judges and magistrates up and down the country, doing their best with inadequate resources and under heavy pressure of work to make difficult decisions in the best interests of children, should be accused of administering ‘secret justice’.”

As well as media access, he says that judgments should routinely be given in open court and judges should prepare and issue press releases.

Media access would be conditional: there was still a need to protect the privacy of families and children. But the tension between media presence and privacy could be resolved through rules on anonymity.

Harriet Harman, QC, the Constitutional Affairs Minister, has made clear that the status quo is not an option and that there must be more openness to maintain public confidence.

Consultation on her proposals has just ended. But it seems certain that if the media are to be admitted, the public are not. Senior judges fear that it will be difficult to police the necessary anonymity orders, and that nosey neighbours with a prurient interest in particular cases will pack courts to hear intimate details.

There is also some concern about press coverage. Lord Justice Wall fears that the media “will seek to sensationalise” cases and that editors will “be interested in personalities, not issues”.

He suggested a system of media accrediation with only accedited press representatives being allowed entry to the courts. Such accreditation could be withdrawn, he suggested, if the press did not “reciprocate” and play by the rules.

If the judges are onside in the campaign for openess, the battle is far from over. The 5,000-strong association of family lawyers, Resolution, has just voted against media access, arguing that family cases should always be heard in private unless there are “compelling reasons” to open the court.

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