Privacy in the Family Courts

Until a few years ago, there was never any question but that family proceedings would be held in private. This meant that only those directly involved (as well as lawyers, the judge and court staff) could be present to hear and see what went on in court. In addition, nothing heard in court could be repeated outside and no publicity could be given that might identify the participants.

Increasingly, pressure grew for there to be some degree of independent observation of family proceedings. The argument was that the family courts were making very important decisions (for example, for the removal of children into care in cases which involved very complicated and sometimes contentious expert evidence), the reasons for such decisions never being made public and that it would be consistent with the requirement for public transparency for there to be a degree of observation and reporting (as happens in all other court cases).

In 2010, new Rules governing the conduct of family proceedings were introduced. These allowed “accredited” members of the press to ask for permission to be present. The expectation was that permission would be given and that refusals would be rare and only for very good reasons.

In practice, the press made very few requests for permission to attend court. The main reason for the lack of interest was that the details the press was permitted to report were restricted to the issues in the case, but only in very general terms (for example, that the case related to allegations of violence by a parent against a child or parental drug or alcohol abuse etc). In effect, therefore, whilst there was the theoretical ability for the press to report cases, the way in which they were permitted to do so was so limited as to be of very little help in achieving a wider public understanding of the work of the family courts.

In 2014 the President of the Family Division, the senior judge who is in charge of the family courts, issued a Guidance Note, which judges are obliged to follow. In a nutshell, the Note stated that there should be greater transparency of the work of the family courts. The purpose was to achieve a more consistent approach to the work of those courts nationwide, to improve the management of cases and to raise public awareness of how the courts operate. In addition to what happened in court, there was to be much wider use of publication in law reports of judgments given by judges, setting out the reasons for decisions in individual cases.

Having said that, the President was at pains to point out that the judge in every case retained the right to decide whether there could be any publicity. The judges were given a very wide discretion.

Inevitably this wide discretion has led to differences of approach between judges. Some are very much in favour of most of the proceedings being heard in public and reported by the press: others take a much more cautious approach and feel that the issues discussed in family cases are so specific to the families concerned that it would only be cases where there were matters of public principle at stake which would justify the lifting of the publicity veil.

The current position is not entirely satisfactory, not least because it is difficult for legal advisors to know whether there is likely to be any publicity in a particular case. However, some general points can be made.

Cases involving the future of children where there are disagreements between the parents and sometimes wider family members will, generally, always be heard in private and there will be no reporting. It would be exceptional for permission to be given for such proceedings to be publicised. An example of a case which might be publicised would be if a child had been removed by one parent without agreement of the other and the whereabouts of the child was not known. The judge is likely to decide that press publicity could help in locating the child.

Applications by local authorities for the removal of children from parents (care cases) will be heard in private although the press would be given the right to attend court if required. The judge’s decision at the end of the case (the judgment) is likely to be included in the law reports, which are open to scrutiny by the press and the public. However, those judgments will be anonymised so that nothing appears in them which could identify the child(ren) or the parents or the area where they live.

Some court proceedings relating to children, such as whether medical treatment should be given or withheld, against the wishes of the parents, will always be in private. However, the press will generally be given permission to be present but again with restrictions on the way the case can be reported so as to avoid the identification of anyone involved. Permission to report the decision of the judge, albeit in anonymised form, is, however, invariably given because the principles involved, often of life and death, are of general public interest.

In cases where there are proceedings relating to money after a divorce or a civil partnership, it is more difficult to predict the attitude that will be taken by the judge as to whether the case should be heard in private or publicly. This is particularly so in those (relatively rare instances) when such cases are being tried by High Court judges.

It is well known that there are two High Court judges who take very different approaches in principle in cases of this sort. One will routinely hold such cases in open court, so that the case can be observed by the public and fully reported. The other takes the opposite view, that the issues are private between the parties and, to put it bluntly, are not the business of the public and that there is no reason for the public to be admitted to the court or for the case to be reported. It is this latter judge who recently dealt with the divorce proceedings of Noel Gallagher and refused to allow the press to be present, despite the pleas of the press that the case was of genuine interest to the public. It is believed that, arising from this case, the question of publicity is to be referred to the Court of Appeal. Perhaps some much needed clarification will in due course emerge in this difficult area.

It may be a relief to our readers that the vast majority of cases of this sort are not heard by High Court judges in London but by judges in the local areas. The general view is that these judges are much less likely to open up the proceedings to public scrutiny although they have the power to do so.

If you are concerned about these issues we are happy to advise on the best approaches on which our experts have experience.

For more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.

Rosie Bracher: Specialist Family Law Solicitors 01271 314904