Why Enduring Secrecy In Family Courts Urgently Needs Further Reform

It was a particularly shocking, yet illuminating, Old Bailey trial.

In the week when local authorities and family lawyers began marshalling arguments to exclude journalists and gag reporting in the newly accessible family courts, along came the ‘Baby P’ case again to highlight in stark contrast the enduring problem of secrecy in family justice.

Thanks to the relatively open reporting allowed in our criminal courts, the public has been well informed about the second set of allegations against a step-dad who now stands convicted both of causing or allowing the death of Baby P and of raping a two-year-old girl.
The public has been told of the failings of social workers at Haringey Council, five of whom have been dismissed. The girl was on the “at risk” register but, like Baby P, was inadequately protected by the authorities.

Importantly, the public has also been able to read the anonymised video-link evidence that the girl, now aged 4, gave at the trial, which has in turn sparked a wider debate about how child witnesses should be treated in court.

Such detailed, anonymised reporting of the trial has kept us all informed without harming the rape victim herself. She would have faced the ordeal of cross-examination irrespective of whether the media were present and reporting.

The courtroom transparency was vitally important.

It was important to ensure that justice was seen to be done for the defendant, who could be jailed for life.

It was important for the accountability of publicly-funded social workers and police.

And it was important as regards proposal to reform the law governing children’s evidence and procedure generally.

Unlike in family courts, an acceptable balance was struck between the girl’s right to privacy under Art. 8 of the European Convention on Human Rights, the media’s free speech rights under Art. 10, and the step-dad’s Art. 6 right to a publicly fair trial.

But how different it would have been if similarly grave issues fell to be tried in our family courts under the existing automatic reporting restrictions.

Last month’s new rules enabling reporters to attend certain family hearings may be a step in the right direction, but S.12 of the Administration of Justice Act 1960 and S.97 of the Children Act 1989 still place obstacles in the path of open justice.

Section 97 makes it a criminal offence to publish any material which is intended, or likely to identify any child as being subject to Children Act or adoption proceedings.

Section 12 makes it a contempt of court to publish information relating to proceedings before any court sitting in private where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors, (ii) are brought under the Children Act 1989, or (iii) otherwise relate wholly or mainly to the upbringing of a minor.

It is clear that S.12, in particular, urgently needs to be reformed. Its effect is to cloak in secrecy the substance of what has actually gone on in court.

Even though childcare proceedings might effectively result in a life sentence for a loving parent who is separated from a child by court order on the basis of questionable expert evidence, S.12 prevents the media from reporting what has actually happened in court, even where reporters are allowed into court.

It is, of course, only fair to emphasise that S.12 is not a complete and utter show-stopper for the media.

As Mr Justice Munby made clear in a case involving a child and Kent County Council in 2004, S.12 does prevent publication of the following:

• what has gone on in front of a judge sitting in private;
• documents such as witness statements, reports, position statements, and legal arguments filed in court;
• transcripts or notes of evidence, submissions and judgments; and
• extracts, quotations and summaries of such documents,

whether anonymised or not.

But it does not of itself prevent publication of any of the following:

• the fact that a child is subject to Children Act proceedings or proceedings relating to his maintenance or upbringing;
• the nature of the dispute (as opposed to a summary of the evidence, which is banned);
• the identity of the parties and witnesses, and of the party on whose behalf a witness has given evidence; and
• the text of any order made.

Subject to complying with S.97 (which must not be overlooked) and any additional court direction or injunction, the media could, for example, report from family proceedings that a parent had mistreated a child, or that a particular expert gave evidence for one side or the other.

However, important evidential and procedural issues from the actual courtroom proceedings, as were widely and beneficially reported in the Baby P criminal cases, would not be reportable.

Despite the presence of reporters under the new family courts’ access rules, the substance and evidence of child-related, ‘in private’ hearings would all remain unreportable – even if anonymised.

In short, S.12 is the key enduring, unacceptable difference between the family courts and our civil and criminal courts, which for decades have operated harmlessly with comparatively open justice.

The imbalance between Art. 8, 10, and 6 ECHR in family proceedings is something that the media, courts, and Parliament must now urgently tackle.

As a society, we are impoverished by having to trust that judges, expert witnesses and public authorities will get things right without the disinfectant of sunlight, and without scrutiny and debate in the press.

Haringey and the many other notorious childcare disasters suggest that any such trust is likely to be tragically misplaced.

Published 05/05/2009. The author of this article is Nigel Hanson