The ‘Secret’ Family Court: fact or fiction? by Clifford Bellamy

Paul Magrath of ICLR reviews a former judge’s analysis of the challenge of opening up the family courts to better public scrutiny

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HH Clifford Bellamy

This book could not have been more timely. Its comes just as the current President of the Family Division has launched a wide ranging Transparency Review, and family law practitioners and organisations have been addressing their minds to the very same subject matter in forming their responses to his call for evidence.

But the questions it grapples with are not new. The book’s title refers to a decades-old accusation from the media and others, such as campaign groups, that the family courts operate a system of “secret justice”, administered “behind closed doors”, in which draconian orders affecting parents and children are shielded from public scrutiny — and, by implication, accountability.

Another retired family judge, Sir Mark Hedley, is quoted at the head of a chapter, pointing out that

Much of the discussion around attempts to open up the family courts has rested on the idea, reflected in Sir Mark’s statement, as well as in the current President’s recent call for evidence on the subject, of a “tension” or “balance” to be struck between transparency and privacy. The idea is that they are mutually exclusive, necessarily in competition. That there is a sort of inverted seesaw, whereby any attempt to raise up transparency necessarily involves squashing down privacy, and that if you try to raise up privacy, it can only be done by squashing down transparency. But is this polarisation helpful? Surely the ideal would be to raise up both in some way. Perhaps you can’t. But that should, surely, be our goal?

Unfortunately, as Bellamy reminds us, there is

I think there is probably a third group as well, whom I would call the Defeatists. They accept the idea of greater transparency, but after the way the media and special interest groups have greeted every attempt to achieve it with yet more wilful distortion, prejudice and misinformation, they simply throw up their hands and say “why bother?”

Before going further I should declare my own interest, as a member and trustee of the Transparency Project, which actively promotes greater transparency in the family courts; and as one of the co-authors, with Julie Doughty and Lucy Reed, of a textbook on the subject: Transparency in the Family Courts: Privacy and Publicity in Practice (Bloomsbury, 2018). Clifford Bellamy is a patron of the Transparency Project, and his book, which complements rather than competing with our practitioner textbook, is a further contribution to an important debate. It has the merit of having been written by a wise and experienced judge, who before his retirement was known for publishing lots more judgments than other judges.

Open justice

In the early chapters Bellamy explains the importance of open justice and its critical contribution to the integrity of the legal system, as well as the reasons why, in certain types of case, openness must give way to privacy and confidentiality. Fundamentally, it is all in support of the same thing: making sure that justice can be done. But it has led to a problem of perception and frustrated both those who want to talk about their own cases and cannot, and the media who want to report them.

While accepting that some of the media criticism of “secret” family courts is justified, Bellamy takes issue with the assumptions on which it is based. For example, the “sweeping generalisation” that courts routinely prefer expert evidence over that of other types of witness. And while he takes the view that the word “secret” is not a neutral synonym for “private” but is used with a pejorative subtext, he agrees with Sir James Munby and other judges and commentators in accepting that the semantic distinction carries little merit with the public in whose name the system operates.

The media campaigning and various government inquiries led, eventually, to a change in procedure rules in 2009 allowing accredited journalists to go into the court and witness private family hearings, though they remained under strict restrictions as to what they could report. The change did not have the desired effect for a number of reasons, which Bellamy explores. They include the difficulty the media reporters had in finding out about cases to report, which made the process uneconomic and left them tending only to report the most sensational cases. Bellamy himself only recalls one journalist ever having come into his court in ten years since that rule change.

Probably the biggest barrier to coverage by journalists is the restriction on their being able to say anything interesting about the case, which in large measure is thanks to section 12 of the Administration of Justice Act 1960, designed to protect the confidentiality of cases heard in private, any breach of which is a contempt of court. The effect of this provision has been described as a “minefield”. Bellamy explores the background and aims of section 12, and points out that both the law and social conditions have changed considerably in the sixty years since its enactment. One of his book’s key recommendations is that we should simply get rid of it, at least as far as family cases are concerned, and in this he is not alone. Sir James Munby, former President of the Family Division and now chair of the Nuffield Family Justice Observatory, is of the same view; so is Mark Hanna, co-author of the leading textbook McNae’s Essential Law for Journalists; and so is the Transparency Project.

Publication

Subsequent developments included the Family Court Information Pilot, which resulted in the collection and publication of data about family cases that was too anonymised and anodyne to be of any interest to the press, and was never rolled out in full. But a major boost to one aspect of transparency, namely publication of judgments, came with the guidance issued in February 2014 by Sir James Munby soon after he became President (see Practice Guidance (Family Courts: Transparency) [2014] EWHC B3 (Fam); [2014] 1 WLR 230). This resulted, initially, in a big increase in publication, though this was not evenly distributed across courts and judges around the country, and did not last for long: within a couple of years the boost began to run out of momentum. The number now being published is barely more it was than before the guidance was issued, which is disappointing.

The paucity and lack of detail of the statistics collected by the Ministry of Justice relating to family cases has made is hard to conduct more accurate research into the numbers and types of cases which are or are not being published. But Bellamy has compiled his own chart of the number published on BAILII, which shows steep decline after 2015, and has interviewed a number of other judges about their reasons for publishing or not publishing cases. His summaries of their responses make a very useful addition to research in this area, though some of the anecdotes about media distortion or misunderstanding of cases are certainly worrying. A common complaint is that newspapers “pick up on minor points in the case and make them appear as if they were central to the case, thereby creating a misleading impression”. It is not uncommon for journalists to get the story from one of the parties and then fail to check their version against the published judgment. Often cases appear to be reported only because they can be spun into a startling headline. Not surprisingly, Bellamy comments, this has led to a lack of trust:

I would add that if there were some way of harnessing the BBC Local Democracy Reporting scheme, which was always intended to cover courts as well as local councils and other bodies, that could enhance the volume and quality of court reporting in family cases at local level.

Anonymisation

It is evident from his research, as it was from our own (which he cites), that the anxious work involved in effectively anonymising cases for publication is a major inhibiting factor for judges, when it comes to publication, as are the pressures of time and the sheer (sometimes crisis-level) volumes of work, especially for circuit judges who do not enjoy the support staff and facilities of their High Court colleagues. “Having spent more than 14 years as a family circuit judge, the last 12 as a Designated Family Judge in three different court centres, I am sympathetic to those views,” says Bellamy.

It seems that there is both a pull for transparency, from the media and others who want to see more openness and accountability, and a push from the judiciary themselves, who want to explain what they’re doing and why, but that both are hampered or inhibited by the need to consider the interests of those, such as children, whose vulnerability the restrictions are designed to protect.

But it’s not just children. There are others whom the restrictions cloak in anonymity for reasons that deserve some scrutiny. He concedes that the courts may have been too ready to allow local authorities, expert witnesses and others to avoid the public scrutiny that their failings warranted. Although there should be a balancing exercise in each case, he proposes that the tendency should be for local authorities and experts to be named unless there is good reason not to, while other professionals such as social workers should not be named unless there is a good reason to do so.

Solutions

“In my opinion,” says Bellamy, “the greatest achievement of the use of the word ‘secret’ has been to undermine public trust and confidence in the family justice system”. It has simply distracted everyone from the real issue, which is the lack of scrutiny of what goes on in the courts.

As well his key recommendation of a repeal of section 12, Bellamy identifies a number of other things that would improve transparency and scrutiny in the family courts. They include an Anonymisation Unit (as exists in Australia) with dedicated specialist staff to anonymise judgments; a national Media Liaison Committee (as there is in Nova Scotia); better listing of cases to help media reporting; and the publication of case summaries (suitably anonymised) in public law cases to assist the media, the parties and the court. All of these seem eminently sensible suggestions, though they would all require additional funding to be provided.

Standing alone, the book offers a clear analysis of the problem and a clear agenda for its solution. It should be read by anyone who has an interest both in family law and, more generally, in open justice. On that basis, though I speak as an interested party, I would strongly recommend it. But it is all the more relevant for coming at a time when the very issues it addresses are undergoing a comprehensive review, with the extended deadline of the current President’s Call for Evidence still open, and the anxious questions now being asked about the wider consequences for open justice of the recent urgent switch to, and potential overdependence on, remote hearings.

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The ‘Secret’ Family Court: Fact or Fiction, by His Honour Clifford Bellamy is available in print or digital from Bath Publishing (£20)

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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