Proceedings in family courts are not open to the public. Most people would agree that any children involved should be protected from unwarranted publicity. Yet there is a problem if the decisions made by judges never reach the public domain. Judges need to be accountable for their decisions, particularly as the lives of children and their parents or carers may be changed forever. The public needs to have confidence in the way the family courts operate. A major breakthrough was announced recently when the Justice Minister, Jack Straw, confirmed that the media will be allowed to attend and report on family proceedings. This mirrors what happens already in the youth courts which deal with criminal offences. There remains considerable judicial discretion regarding the implementation of this arrangement which gives rise to uncertainty by those affected.
The new approach allows the courts to explain and publicise their decisions, but the reporting must be in such a way that the children involved are not identified. There is some doubt as to whether this new formulation is actually an improvement. With one breath the Minister said that more information would be available from the courts. With the next breath, he said that the landmark Court of Appeal case Clayton v Clayton was to be overridden by new legislation. This is important for it goes to the heart of what we mean by open justice.
The Clayton case enabled parents to make the proceedings public after the case is over. This is not a tricky situation where one side is using the press to influence the decision maker. The publicity makes no difference to the outcome of the case. What it can do, however, is draw attention, possibly adversely, to the judicial process and the judges themselves. This is clearly over-protective. If the judges are confident that they have made the right decision they should not have to fear public scrutiny.
It is rather unusual for a Court of Appeal judgement to be reversed by new legislation. The argument given is that the “welfare jurisdiction” of the court continues after the case is concluded. This is a dubious basis upon which to impose restrictions on freedom of speech. The vast majority of concluded cases never return to court, so the claim of ownership is excessive. It is not as if the children are wards of court. They are the responsibility of their parents or carers, not of the courts.
There is a prohibition on releasing any information which may identify a child subject to proceedings. This is quite a severe restriction if it is to be interpreted strictly. Nowadays it is possible to track down the names and details of most people and their children. The internet is a rich source of information: social networking, person search, company, school, genealogy, local news etc. Hardly anybody is anonymous anymore, least of all communication-hooked teenagers. Add to that the ability to contact “friends” and neighbours and names will be revealed.
There is another way of protecting identity without damaging transparency. Rather than trying to limit the information pipe at source, unblock it and let it flow. The media would actually only be interested in the celebrities or the rare “human interest” story. Complaints and grievances from disgruntled court users hardly ever get aired in the media. If the media go too far beyond the public interest, then they will have to face actions for breach of privacy.
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