One year on, “opening up” of family courts has led to closed justice

11 May 2010 by Adam Wagner

Watch but don

The family courts were opened up to media scrutiny by the Justice Secretary Jack Straw at the end of April 2009. One year on, the Times legal editor reports that not only have family courts remained closed, but media access is even more restricted than before the reforms.

In a week where promoting open justice has been high on the Court of Appeal’s agenda in cases involving terrorism, Frances Gibb writes that the family courts are still sealed shut: “After a flurry of interest, the media have stopped reporting family cases in all but rare high-profile disputes because a restrictive reporting regime makes coverage meaningless.”

The Justice Secretary’s 2009 reforms were the outcome of years of campaigning by the media and pressure groups to open up the secretive family courts. The arguments had centred on the conflict between the privacy of those involved in proceedings versus the public benefit of open justice; a balancing exercise which all public authorities are now familiar with by virtue of Article 8 of the European Convention on Human Rights (the right to privacy). It is an often quoted principle of English law that justice must not just be done but be seen to be done, and it seemed that that the family courts were moving onto that side of the balance.

In the heady days of late April 2009, Camilla Cavendish, who had campaigned for the changes predicted that “more than 200,000 hearings involving sensitive and traumatic cases, and with decisions that will have a huge impact on the lives of children and their families, will now be open to media scrutiny.”

But some doubted whether the reforms went far enough. It was clear that whilst journalists were to be allowed into the courts, the rules on what they could report remained restrictive. Mr Justice McFalane, a High Court Judge, said in 2009 that “Reporting will be limited to the process and gist of proceedings, rather than the detail of any particular case. In other words, the reporting will be about system, rather than substance.”

A year later, those fears may have been realised. As Frances Gibb writes, despite it being said that “family courts would be put under the same reporting regime as the youth courts — open but subject to anonymity for children“, instead, “blanket anonymity remains; further reforms to allow media access to evidence are on hold for 18 months and will depend on an independent review of the workings of the [Children Schools and Family Act 2010].”

Section 14 of The Children Schools and Families Act 2010 provides the conditions for courts to exercise their power to relax the automatic restrictions on publication of identification or sensitive personal information in family proceedings. The test set out in that section may give the media more ammunition to use when applying for restrictions to be relaxed.

However, last month a further blow was struck to open justice with the reversal by the Ministry of Justice of the judgment in Clayton v Clayton [2006] EWCA Civ 878, in which the Court of Appeal held that reporting restrictions in cases involving children only lasted until the end of a trial. The restrictions will now be for life. Open justice in the family courts may be an aspiration but not a reality for some time yet.

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• Our previous posts on family law and Article 8 (the right to privacy)