Opening up the Family Courts


Tuesday, December 23rd, 2008. 5:54pm


In September 2008 I responded to a consultation entitled Confidence and confidentiality: openness in family courts – a new approach run by the Ministry of Justice. I agreed with the following main points:

  • The current court rules on disclosure need to be amended to allow for wider disclosure of information in cases involving children and heard in private.
  • The court rules should be amended to concentrate on the purposes for which the information is disclosed rather than who the information is disclosed to.
  • Unless there are welfare grounds to the contrary, the identity of the child should be protected beyond the conclusion of a case.

I also stated:

I believe confidentiality in family courts has left them open to accusations of secrecy, bias or even injustice, which can run the risk of eroding confidence. I support an increase in openness and a relaxation of the rules on confidentiality.

I believe it is particularly important for those who feel there has been injustice to be able to approach their elected representatives and the public, via the press.

I would like to see the purposes for which information can be disclosed expanded to explicitly include the provision of education.

The conclusions of the consultation were published on the 16th of December 2008 in a document entitled: Family Justice in View. On the day it was published the report was brandished (see video) in the House of Commons by Jack Straw as he made a statement about the opening up of the family courts.

Page 19 of the document pulled out my response:

Others specified that disclosure rules should be broadened for those involved in family proceedings “who feel there has been injustice” to be able to consult and disclose information to their elected representative (Richard Taylor).

MP Jim Dobbin has experienced constituents being banned by a Judge from discussing their case with him, a decision he thought was not really about protecting the child, but about protecting the professionals involved in the case. He said he was dubious about the Judge’s judgment.

Jack Straw made commitments to:

  • Change the law so that the media will be able to attend family proceedings in the courts, unless the court decides otherwise;
  • Improve and increase the amount of public information accessible to all who want to know more about the way the courts work and how decisions are made.
  • Publish an anonymised judgment online, so that it can be read by the wider public, in selected cases, where the court is making life-changing decisions for a child.

Jack Straw noted that: “the parties involved will sometimes need to seek advice or support from a range of people, including legal advisers, family members, medical practitioners and Members of Parliament or other elected representatives.”

He wasn’t clear on if this situation was to be improved, so David Howarth, my local MP who was responding to this report on behalf of the Liberal Democrats asked for clarification:

I welcome what the right hon. Gentleman said about the disclosure of information by parents, but may we be clear about what that means? Will parents be able to discuss their case with their MP, which was one of the examples that he gave? What will be the position on the important issue of expert witnesses and second opinions? Will parents be able freely to approach experts who might help to challenge the views of the local authority expert in their case?

Mr Straw responded:

Will parents be able to discuss their cases with MPs? Yes, and in my experience they do already, although often in breach of some extraordinarily complicated and convoluted rules, which I discovered only very recently.

Mr Straw also said:

Are we proposing that members of the general public be allowed into the courts? No—and to that extent, this regime is more restrictive than the one that applies in the youth courts. However, I think that that is appropriate, although we are open to representations,

There is no suggestion that members of the press who will be allowed in will require any particular training, or have to demonstrate any awareness of the law surrounding disclosure of what is discussed. I would have thought that anyone demonstrating such awareness ought be allowed to observe the process. The press can’t be present at all cases and rely on members of the public drawing their attention to cases with elements which are in the public interest. The public in this instance will also include council, health and social services staff, students, family members and others. While I think generally far too many of those being paid out of taxpayers money waste far too much time sitting in and outside courts, there are on occasions reasons why they might want to be present. I think the public ought only be excluded when necessary.

I would like to see more transparency and openness throughout the court system. More informative listings for the Magistrates and Crown Courts enabling people to see how justice is being administered or not could be made available online, as could more details on the outcome of cases.

Improving the consultation process

Only 112 responses to the consultation were received, although a number of these were on behalf of groups. Only 20 individual members of the public (as opposed to legal, media or other professionals) responded. I was one of those.

I think this is a subject on which many people have opinions, and this consultation failed to engage with many. The demise of the pan-Government consultations website at consultations.gov.uk means it his harder to find consultations than it was during the short period that website existed.

This particular consultation was made harder to access than it needed to be because:

  1. It was run by the Ministry of Justice, and not linked to from the Department of Constitutional Affairs website where the previous consultation was hosted.
  2. A Word Document form, a crazy and inaccessible way to offer the consultation, was offered there was no guidance on what people were expected to do with the form.
  3. The word document form was one page, the form at the end of the consultation PDF was longer and asked further, essential, questions (Name, Address, If the response was on behalf of an organisation etc.)
  4. It did not use a web based form which I suggested would have been simpler from the point of view of both those completing the consultation and those responsible for collating the results. Do they automate the reading of returned word documents and emails? I’m not suggesting an online form should have been the only option, but for the vast majority of responses, I think it would have been appropriate from the point of view of both those running the consultation and those partipating

I would like to see the return of the consultations.gov.uk website, along with web based forms, from which statistics can be automatically created for most, if not all, Government consultations. I think it would be desirable if responses already submitted could be made accessible to those commenting later. This would enable arguments in support or against of points made by others to be contributed, the debate would become more interactive and increase the chances of constructive discourse leading to consensus.

One comment/update on “Opening up the Family Courts

  1. Richard Taylor Article author

    I’ve noticed a practice guidance from James Munby, the President of the Family Division of the High Court and Igor Judge the then Lord Chief Justice of England and Wales which states:

    The Court of Protection and, when the application arises out of proceedings relating to a child, the Family Division, is vested with a discretionary power to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice.

    and

    The fact that the committal application is being made in the Cour t of Protection or in the Family Divi sion in proceedings relating to a child does not of itself justify the application being heard in pr ivate. Moreover the fact that the hearing of the committal application may involve the disclosure of material which oug ht not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order.

    and

    If, in an exceptional case, a committal application is heard in private and the court finds that a person has committed a contempt of court it must state in public (rule 188(3) of the Court of Protection Rules 2007; Order 52 rule 6(2) of the Rules of the Supreme Court 1965):

    • (a) the name of that person;
    • (b) in general terms the nature of the contempt of court in respect of which the committal order [committal order for this purpose includes a suspended committal order] is being made; and
    • (c) the punishment being imposed. This is mandatory; there are no exceptions. There are never any circumstances in which any one may be committed to custody without these matters being publicly stated.

    There is also a rather odd requirement that judgements where a committal order or a suspended committal order are made must be published on BAILII. This is odd as BAILII is not an official website. I agree such judgements ought be published, but publication ought be via an official website.

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