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Vardags Family Law Essay competition 2023/24 | Anna Pain

Anna Pain - University of Birmingham

Does the Veil of secrecy over the Family courts protect the families or the judges?

For many years the term veil of secrecy has been one closely associated with the family courts. Maintaining privacy and confidentiality is non-negotiable to protect vulnerable families, often in extremely distressing periods of their lives. However, over recent years it has become alarmingly apparent that the privacy afforded to the courts has brought with it a shield from public scrutiny. Secrecy is a phrase that comes with overwhelmingly negative connotations, especially when used in connection with the courts dictating important decisions in many lives. Unfortunately, it appears that behind the closed doors there is reason for serious concerns, that bring into question the competence of the judiciary themselves.

Although the legislation controlling the courts provides an important framework that must be followed to protect the families, the legislation is simultaneously being used as a tool to hide serious judicial failings. The introduction of the Transparency Reporting Pilot, implemented in early 2023, aims to address these issues, by allowing accredited media representatives to attend and report on hearings (subject still nonetheless to reporting restriction orders) with the aim to introduce transparency to the system and therefore judicial accountability. Undeniably, this scheme feels like a huge breakthrough for the family courts. Yet, recent judicial backlash of the scheme itself continues to make it feel as though the judiciary are keen to keep the veil firmly on the courts- for the protection of who is up for debate.

The law and its flaws

The legislation in place to protect families, particularly in cases involving children, outwardly appears unquestionable. The Family Procedure Rules 2010 govern the information that reporters can share to the public from the courts; rule 27.11 allows those media representatives accredited to the scheme to attend private family court, whilst rule 27.11(2)(b) allows for judicial discretion to permit attendance to those not reporting as part of the scheme. Section 12 of the Administrative of Justice Act 1960 however provides a further obstacle for reporters; without a published judgement there is shockingly little that can be published by the journalists, regardless of how outrageous they deem the decision made to be. The secrecy afforded by this statute appears to prevail. Sir James Munby is particularly critical of this statute and raises its challenging issues which highlight exactly why the transparency pilot is so crucial. One of his most striking criticisms questions the sections role in protecting the judiciary themselves. With the assumption that the families remain anonymised (leaving only the judges identity available for public knowledge), the publication of material would provide transparency, and would not aim to forgo the protection of the families identities. Munby even goes as far as considering the section as a device used by the judges for their own protection, hiding not only their own poor practice but that of others in the judiciary. Confidence cannot be maintained in the system by concealing the truth, however disagreeable or even career-damaging it may be.

The Transparency pilot, introduced in January 2023 by the President of the Family Division Andrew McFarlane, aims to introduce transparency, and instil public confidence in a closed and secretive court system. It will provide accredited journalists and legal bloggers the chance to report on cases in the family courts, with the aim that judicial accountability will follow from increased levels of scrutiny, and therefore improve practice. For a long time before the introduction of this pilot there was acknowledgment that open justice is imperative in these courts just like any other, but categorised as potentially too difficult to achieve. Andrew McFarlane however has recognised the need for change. This also includes a relaxation of the automatic restraints imposed by section 12, to the reporters attending proceedings (dependant on terms set out in the Transparency Order).

Judicial errors

When looking at the cases which have surfaced when the media have been granted reporting rights, shocking and outrageous decisions have been revealed. It is in these cases, surely reflecting the many that have not been granted media access, that we begin to question who may benefit from the privacy of the court. JH v MF [2020]8 is a striking example of where it appears the only individual benefitting from the privacy is the judge himself. The decision of HHJ Tolson in the first instance case of F v H is considered in this appeal case by Ms Justice Russel, which revealed his misogynistic, and arguably archaic, perspectives. Within his wholly problematic judgement includes his view that it will not amount to rape unless a complainant… physically resists penetration. Additionally, he demonstrates ignorance and poor practice, disregarding witness statements and evidence that would all point to an entirely different conclusion. His judgement was held to be so flawed with failure to properly and correctly... balance the evidence before the court that a retrial was required. Amongst countless failures that this case demonstrates, including the collective judiciary branded as pale, stale, and male (certainly not terms that many would like to associate with the judges responsible for these important decisions), the views held by HHJ Tolson displayed in this case are more than likely illustrated in other cases which are not afforded public scrutiny, to the detriment of those families. With no immediate consequences for the judges there is a greater potential for procedural irregularities. Combined with legislation allowing poor practice to be hidden, the families are potentially left feeling more vulnerable than before the court proceedings started. To hold judges accountable to their poor decision making through increased media coverage would not only prevent appeals but would increase the likelihood of the correct decision being reached the first time, decreasing the stress for the parties who would otherwise have to endure the trauma of court all over again.

In a similar vein, Reporting Restriction Orders, an extremely valuable tool to protect confidentiality of the families, have the potential to be used by the judiciary as a tool to protect themselves. The Court of Appeal case M (A Child) [2018] demonstrates this abuse of power; it was decided that the judge had acted upon the advice given by the childrens service, despite them only providing the slimmest of evidence, to instigate the adoption of a toddler. The Court of Appeal found the judge had fallen into error, yet essentially covered up the earlier mistakes by implementing a reporting restricting order. Not only did this mean the initial judge was free from scrutiny from the public for his significant judicial error, it also heavily aligns with the proposition that the judiciary are using the powers afforded to them negligently. Louise Tickle, a prolific family law reporter, fought for this story to be told to the public by challenging the legitimacy of the reporting restriction order at the High Court. It is extremely telling in this case that two judicial errors were made, in two different respects. Firstly, the initial errors by the first instance judge in following incorrect procedures and relying on unfounded evidence. However, the arguably more alarming of the two errors, is the inappropriate use of the reporting restriction order. It is not outrageous to suggest its implementation was in pursuit of judicial protection. Many may argue that these cases simply represent the few. Others may argue that these represent the masses. In either case, the feeling that the family justice system is deeply flawed cannot be denied. However, there have been successes arising from the transparency pilot over the past year; Lucy Reed comments positively on its progress and, despite concern for many upon its introduction, there have been no recorded complaints regarding potential confidentiality breaches. The protection offered to families in the court system and their right to privacy in sensitive matters is crucial and not to be compromised. However, as demonstrated by years of case law, a balance must be reached whereby protection for individuals is maintained whilst offering consideration for journalists, who have the right to exercise their freedom of expression. This side of the argument is particularly convincing where journalists feel they have witnessed injustice, frustrating both the reporters and in many cases the families too. Journalists often do not wish to disclose precise facts of the case, which maintains the families privacy. In these cases, the judiciary must have legitimate reasons to prevent publication; without this, the motivation for retaining the courts matters as private seem less than honourable.

In 2021, the case of Griffiths revives the ultimate balancing test between Article 8 and Article 10; the conflict between an individuals right to a private family life and an individuals right to freedom of expression, as established in the 2004 case of Re S (Identification: Restrictions on Publication). The test set down the precedent for deciding upon conflicting rights, a way in which the judiciary could begin to decide which value would prevail, specifically requiring an intense focus on the comparative importance of the specific rights. The welfare of the child is an extremely important factor in any case, however where the impact on them can be manageable and limited and public interest appears greater (especially in Griffiths, involving a well-known figure seeking refuge in the private system), it is vital that the judiciary are at least open to allowing the public a glimpse in. Importantly, as discussed in Campbell v MGN Lt5, the press must be free to expose the truth and put the record straight. This is particularly compelling in cases such as Griffiths where even one of the parties would have liked their case to be reported on, and one must have the right to tell their own story. The consideration for the greater public interest is sometimes overwhelming; therefore, the fight by Tickle to be afforded reporting rights was honoured.This case emerged shortly after the announcement of the pilot scheme, where it was hoped the judiciary would be welcoming of the changes being introduced to the courts. Unfortunately, the 2023 case of Tickle v Fathers & Ors demonstrates otherwise.

Judicial backlash

The case of Tickle v Fathers is another appeal from Louise Tickle, who fought against the judicial decision to adjourn her application to report on a private children case. The judge in question is HHJ Haigh. The case begins with his denial of Suzanne Martin, an accredited journalist, to attend the private children case, contradicting the intentions of the transparency scheme, and potentially misunderstanding the intentions of the reporter. Furthermore, despite granting Tickle permission to observe the hearing, he denied her reporting rights on the case despite the provisions of the FPR 2010 rule 27.11(3)(a)(i) affording her exactly this. In her opinion, his decision was founded on ill application of the law.2 Louise Tickles application brought up the issue of the culture of the Family Justice Systems interaction with [and response to] the media, especially in the context of the ongoing transparency pilot. HHJ Haighs response to this appeal consisted mostly of his strong view that it was not a matter for the media to decide, as opposed to the court, when information that concerns a private law children case to be reported. He believes he is justified to exercise his powers under the FPR rule 27.11; the right to exclude reporters, but only where it is necessary, in the interests of the child. Construing the meaning of necessary has been unhelpfully considered in Re H-L (A Child), deeming that one should interpret the word exactly as it meant. It is true that at any point a court can exit from the pilot where it is deemed to be in the best interests of the party. This is to completely disregard the intentions of Ms Tickle. She did not seek to report on the factual or evidential matrix of the case and did not intend to compromise the safety of the parties involved. In this case, it would most likely not be deemed necessary to exclude her or any other reporter from the court.

One of the most troubling aspects of the case is the resistance of HHJ Haigh to the Presidents transparency initiative. He feels as though he is a lone voice against the transparency project and that his judgements… are not for public consumption or to allow press and journalists to further their journalistic ambitions. Essentially, his scathing remark implies ill-intention on behalf of the reporters, not only misinterpreting their objectives in publishing material, but also misinterpreting the objectives of the scheme altogether. His express rejection of the transparency scheme is worrying considering the aim of such to provide unison and cohesion between the judiciary and the media, not disarray. The hope held by the family division that the participants of the scheme will embrace the pilots goals, promote cultural change and the accept its benefits appears to be an ambitious one.

In the appeal, Ms Justice Leven holds HHJ Haigh to be erred in law, and failed to apply the Article 8/10 balance in a legally appropriate manner. It follows without question that HHJ Haighs interrogation of journalists intentions in the courts is both inappropriate and extremely damaging to the integrity of the pilot scheme itself. It is reiterated within the case that the lack of transparency in the courts is allowing judges to abuse their power without effective scrutiny, even if not intentionally.The success of the pilot scheme within its first year is evident that, as McFarlane states, confidence and confidentiality are not mutually exclusive and can be achieved. Ms Justice Lievens judgement instils confidence somewhat, by labelling the judgement of HHJ Haigh as flawed and affirming the aims of the scheme. It brings confidence that it is not by any means all of the judiciary against the transparency initiative. HHJ Haighs perspective is hoped to be the outlier, rather than representative of the majority. Yet, this case serves as a reminder of both the cruciality of the scheme and a painful reminder of the issues still present.

Looking forwards

The veil of secrecy over the family courts is undeniably being lifted by the introduction of the transparency pilot scheme. With greater scrutiny brings greater accountability, and accountability ensures proper procedures are followed, decreasing judicial errors and biases. The scheme does not aim to compromise privacy; names of the parties remain unpublished so the families cannot be identified. Its primary aim is to prevent legislation protecting the judiciary, prevent the judiciary protecting the judiciary, and prevent the judiciarys interests superseding the interests of the families, and crucially, the wider public. Ultimately, it aims to bring transparency and justice to a court which has been riddled with secrecy for far too long. Vitally, its success depends on cooperation from all involved.

 

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Bibliography

Cases

Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 F v H [2019] EWFC B80

JH v MF [2020] EWHC 86 (Fam) M (A Child) [2018] EWCA Civ 240

O (A Child) v Rhodes [2016] AC 219, [2015] UKSC 32 Re H-L (A Child) [2023] EWCA Civ 655

Re S (Identification: Restrictions on Publication) [2004] UKHL 47 Tickle v Fathers & Ors [2023] EWHC 2446 (Fam)

Tickle v Griffiths [2021] EWHC 3365 (Fam)

Legislation

Administration of Justice Act 1960 Family Procedure Rules 2010 Human Rights Act 1998

Bibliography

Journal articles

Bassam A, Fact-finding hearings – what can we learn from JH v MF? (2020) 50 Fam. Law 944

Burrows D, To release or not in family proceedings [2023] Fam Law 658

Munby J, The crisis in private family law in the English Family Court (2020) 50 Fam. Law 448

Tickle L, Always apologise, always explain [2020] Fam Law 290

Official reports

Family Division, Open justice Family Court reporting pilot – rationale (August 2022) accessed 15 December 2023

McFarlane A, Confidence and Confidentiality: Transparency in the Family Courts (October 2021 accessed 14 December 2023

Websites and blogs

Maher B, New era for transparency in family court reporting begins with pilot scheme PressGazette (London, 30 January 2023 accessed 16 December 2023

Proudman C, Family courts are disturbingly out of touch in dealing with domestic abuse The Guardian (London, 3 April 2021) accessed 14 December 2023

Proudman C, The courts outdated views on domestic violence are putting vulnerable children at risk of harm The Independent (London, 25 January 2020) accessed 15 December 2023

Reed L, Griffiths v Tickle – a lawyers view (Transparency Project, 16 December 2021) accessed 18 December 2023

Reed L, Pilots Progress (Transparency Project, 5 November 2023) accessed 18 December 2023.

Reporting watch team, Behind closed doors – a transcript from a private hearing (Transparency Project 30 November 2023) accessed 18 December 2023

Reporting pilot watch team, Munby 2.0 revised version of Sir James submissions to the transparency review (Transparency review, 16 May 2021) accessed 15 December 2023

Tickle L, An explosive court transcript shows why excessive secrecy in the family courts must be fought accessed 18 December 2023

Tickle L, When a judge prefers his own biases to the law, all is lost (Transparency Project,

30 November 2023) accessed 18 December 2023

Tickle L, Why I fought for the right to open up family courts to greater scrutiny The Guardian (London, 19 February 2019) accessed 15 December 2023

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