CANSFORD LABS

Is it time to open up the family courts?

Sep 9, 2021

In our September post family law blogger John Bolch discusses the pros and cons of opening up family courts and whether a more relaxed format is appropriate for a modern family justice system.

Reform or grievance?

Perhaps the most frequently-raised criticism of the family courts is that they are a system of secret and unaccountable justice.

The criticism is regularly raised in the media and elsewhere. Whether it is raised by those with a serious interest in reform, or those who simply have a grievance against the family justice system, the effect is the same: to erode public confidence in the family justice system.

The calls for the family courts to be opened up have grown ever-louder in recent years. Is it now time for them to be acted upon by our lawmakers?

Open justice

It is a fundamental principle of any justice system that it must be open and accountable. The public must have faith in the system, and this can only happen if they know what the courts are doing, and why. Courts operating behind closed doors are the things of dictatorships, not democracies.

And most of the courts in this country operate a system of open justice. Criminal courts, for example, are open to the public – anyone can walk into a sitting criminal court, at any time. And, equally importantly, the media are free to attend the court and report upon the proceedings.

But the family courts do not work in this way.

Before we look at whether it is time to open up the family courts, we need to look at the differences in the way they operate, and why those differences exist.

A matter of privacy

Family court proceedings obviously involve matters of a very private nature. After all, the private business of individuals, and what happens in their homes, should not normally be matters of public knowledge.

But perhaps most important is the privacy of any children involved in family court proceedings, whether because of a dispute between their parents, or the intervention of the state. Children are clearly entitled to privacy, and the publication of details of cases relating to them could have a serious detrimental effect upon their welfare.

So the basic rule in the family courts is that, unlike other courts, the proceedings are held in private. The public do not have a right to attend family court hearings.

Accredited members of the press have, since 2009, been allowed to attend family court hearings, but there are restrictions upon what can be reported.

In particular, section 12 of the Administration of Justice Act 1960 makes it a contempt of court to publish a judgment in a family court case involving children, unless either the judgment has been delivered in public or, where delivered in private, the judge has authorised publication.

In addition to these rules the family courts are required to comply with Article 8 of the European Convention on Human Rights, which states that everyone has the right to respect for their private and family life.

Time to open up?

There are essentially three schools of thought as to the issue of opening up the family courts: that all restrictions should remain, that all restrictions should be removed, and that restrictions should remain, but in a more ‘relaxed’ form.

Obviously, retaining the present restrictions is the ‘safest’ course, in the sense of protecting private lives and, in particular, children. However, support for this course of action, or rather inaction, is clearly waning, and is probably no longer the majority view.

Balancing act

On the other hand, removing all restrictions is also probably a minority view. It carries with it serious risk, especially to children, and most interested parties are not prepared to take those risks.

The majority view now, and the ‘establishment’ view (acknowledged by the Government), is probably the third option: keep necessary restrictions, but in a more relaxed form, appropriate for a modern family justice system.

But clearly retaining restrictions that provide adequate protection for parties and children, whilst simultaneously satisfying those who complain of ‘secret family courts’, is a difficult balancing act to achieve.

The primary proposal of the proponents of this third option is to repeal section 12 of the Administration of Justice Act 1960, which is seen as the biggest cause of the ‘secrecy’ complaint, and replace it “with much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world”, as the Former President of the Family Division Sir James Munby said in a speech last year.

Quite what this would look like in practice remains open to discussion. However, it is clear that the wheels are now in motion for change, albeit that they are revolving rather slowly.

It seems certain that, at some point in the near future, the family courts will open up, and when they do hopefully at least some of the naysayers will be satisfied.

After all, it is surely for the benefit of everyone that the public has confidence in our family justice system.

 

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