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Secrecy of the family courts may be about to end By Frances Gibb

The Times - Wednesday 24th May 2006

Proposals aim to build confidence by exposing hearings to the same scrutiny as all other cases

THE secrecy of family courts, which has led to long-running campaigns of hostility, could be ended under a proposal to be made next month that would throw them open.

Thousands of hearings, from divorce wrangles over money to contact with children, would no longer be conducted behind closed doors.

But there would be a new regime to protect the anonymity of those involved, with judges having power to order out “nosey neighbours” and a new criminal offence to protect individual privacy.

A consultation paper will urge a change of culture to end the secrecy of the family courts, which have faced the hostility of such groups as Fathers4Justice. The Department for Constitutional Affairs is expected to recommend one set of rules for all courts, instead of most family cases being closed, which presumes cases are in public.

High-profile divorces, such as the Miller case on which the House of Lords will give judgment today, would be subject to an anonymity order unless all parties waived their right to privacy — denying the press the chance of reporting salacious details.

The move — spearheaded by Harriet Harman, QC, Minister for Constitutional Affairs — is likely to be controversial with some family judges concerned about litigants’ privacy.

But she told The Times: “We need a very big change in culture from secrecy to openness, to bolster public confidence. No change is not an option. There is a serious lack of confidence in the family courts which must be addressed.” The family courts were “for ever on the back foot”, she added, defending themselves against accusations of bias. The secrecy of the courts allowed serious allegations to be made. “It is not possible for the courts to rebut these allegations. The courts have got nothing to hide.”

However, if the courts were to be open to press and public, there had to be an effective regime of anonymity, properly enforced, Ms Harman said.

“At present anonymity is breached on a regular basis, partly because the current level of secrecy and lack of accountability make it difficult for courts to argue the system must be defended.” If there was more openness and accountability, anonymity could be more strictly enforced, she said.

Proposals to open the family courts have support among the most senior judges, including the top family judge in Britain, Sir Mark Potter, President of the Family Division.

But many other judges will need to be persuaded that the benefits will not lead to damaging publicity about people’s private lives.

Ms Harman, who told the family judges on Monday that the status quo was not an option, added: “At present we have the worst of all worlds: secrecy, lack of accountability to Parliament (with MPs and ministers unable to go into proceedings), a climate of suspicion and breaches of anonymity.”

At present different courts operate different rules. The consultation paper is likely to propose one set of rules for all courts along the lines of the Court of Appeal, with press and public access subject to anonymity orders.

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