‘Transparency’: a family lawyer’s euphemism

At the end of last month Transparency in the Family Courts Report (29 October 2021) was published. Sir Andrew McFarlane, President of the Family Division, introduced the series of documents which the report contains by speaking of his concern that a journalist can sit in on a family court case but cannot always report what the journalist observes; or – a point he comes back to later – that journalists are uncertain as to what may be reported, anyway, thanks to the “chilling effect” of the threatening Administration of Justice Act 1960 (AJA 1960) s 12(1) for any proceedings in “private”.

Sir Andrew goes on to say he has “reached the conclusion that there needs to be a major shift in culture and process to increase transparency” in the family courts. The “twin principles of confidence and confidentiality” implied – required, perhaps? – by family proceedings are not, he believes, “mutually exclusive”. His report is accordingly entitled Confidence and Confidentiality: Transparency in the Family Courts (“Confidence”). It serves to introduce a miscellany of material related broadly to open justice in family proceedings. This post will deal with its main piece, namely Sir Andrew’s 16-page review.

In what follows, it will be assumed that the common law concept of open justice (what family lawyers euphemistically call “transparency”) in all courts consists of four main components (the subject to various of my ICLR posts since 2015):

  • Anonymity – how much anonymity should parties and, especially, their children have;
  • Release of information to non-parties – what documents and other information should be passed on to non-parties, especially the press, about court proceedings before the hearing of the case and what released afterwards;
  • Attendance at court – who is entitled to attend court (other than parties); and
  • Publication of what happens in court – what is permitted be published (mostly by the media and as law reports; but also by the parties themselves)?

A first problem with Sir Andrew’s review is that nothing is said about the three central features of family proceedings: that they are said by the rules (ie Family Procedure Rules 2010 (FPR 2010) r 27.10), but not otherwise, to be required to be heard in “private”; what is meant by open justice (“transparency”) in family courts; and why is open justice so important anyway? These legal concepts must be defined first.

‘Private’ and the family courts

The term “private” is central to the rightly maligned AJA 1960 s 12(1). What did “private” mean to parliament in 1960? Is it the same term as is applied by rule-makers to family proceedings 50 years later? “Private”, as a term, is applied to any court proceedings is in respect of the list in as 12(1), and slightly elaborated by Civil Procedure Rules 1998 (CPR 1998) r 39.2(3) (see fuller references to s 21(1) and r 39.2(3) later).

Open justice – the antithesis of “private” proceedings in AJA 1960 s 12(1) – is a fundamental common law concept, confirmed by, for example, European Convention [on Human Rights] 1950 Art 6.1. Family lawyers refer to exceptions to open justice as “transparency” as if privacy were the rule. As this post will seek to demonstrate, this is not the law. The opposite is the case. All court proceedings should be open unless lawful – “lawful” in the common law sense – exceptions apply (see eg the lists in s 12(1) and r 39.2(3)).

‘Open justice’: the law

So, next, what is the law on open justice; and why should family courts be made more open, anyway? Till these questions prior to Sir Andrew’s review are addressed, the points made there have no real context in law. From an analysis of the law must follow: who has the power to change that law and any procedure which regulates its application (point which Sir Andrew makes clear he has well in mind). And then can follow from these legal principles there analysis in the light of the four factors referred to above; and the question of how far privacy can be applied to otherwise open justice family proceedings. The president will then, it is submitted, be looking once more through the correct end of the telescope.

At para 11 Confidence says that FPR 2010 r 27.10 “provides that proceedings to which the FPR apply (that is all family proceedings) “will be held in private”, except where the rules provide otherwise or where the court directs otherwise”. So it does. The review does not, however, reflect that this is a rule-maker’s construct only. It does not necessarily state the law. For example, in Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J stated of a press application to report on continuing proceedings: “[14] …. Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them”.

Parliament does not “pass rules”. It has delegated the making of rules to the Family Proceedings Rule Committee (FPRC: Courts Act 2003 ss 75 and 76). Parliament did not say anything was “private”. There is no law – as distinct from an indication from rule-makers – which denies anyone’s access to the courts. Parliament has accorded to the FPRC the power in very restricted circumstance to “modify” the law and to apply rules from other areas of work (as has been done with CPR 1998 costs rules and for Court of Appeal appeals (CPR 1998 Pt 52)): see Courts Act 2003 s 76.

“(3) Family Procedure Rules may modify the rules of evidence as they apply to family proceedings….

(4) Family Procedure Rules may apply any rules of court (including in particular Civil Procedure Rules) which relate to—

(a)courts which are outside the scope of Family Procedure Rules, or

(b)proceedings other than family proceedings.”

This says nothing about altering – or even modifying – the common law.

Common law and open justice

Finally, the third question: why open justice, anyway? Access is denied in certain types of case in all courts (including family courts) by the common law. The basis of the modern law is Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 itself a family case based on publication of information about a nullity (failure to consummate) case. The common law position was explained by Viscount Haldane LC at 437 to exclude cases concerning children, mental patients and patents (“litigation as to a secret process”):

“[Courts] administer justice in public, this principle is subject to [exceptions, such as wardship]. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the [case of children] the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic.”

AJA 1960 s 12(1) and CPR 1998 r 39.2 bring the law up-to-date since Scott. Under the heading “General rule – hearing to be in public”, rule 39.2(3) states what proceedings must be heard in private if ‘that it is necessary to sit in private to secure the proper administration of justice’.

The Scott list is reflected in r 39.2(3) (eg children cases are at r 39.2(3)(d)). To the Scott list are added “(b) … matters relating to national security”; “(c) … confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality”; and (f) a without notice injunction hearing “and it would be unjust to any respondent for there to be a public hearing” (eg reporting restrictions orders). Rule 39.2(4) deals with anonymity of parties or witnesses to the extent that it is “necessary to secure the proper administration of justice…”.

Scott, elaborated by s 12(1) and r 39.2(3), is the modern law, whatever rule-makers may say in FPR 2010 r 27.10. And, as is well known, a rule may not change the law: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said (the same point is made in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75):

“[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosveno Hotel [1965] Ch 1210 [per Lord Denning MR]. Thus, it is argued, Civil Procedure Act 1997 s 1 gave the Civil Procedure Rule Committee power to make rules governing “the practice and procedure” to be followed in the civil courts and as further provided in Schedule 1 to the Act. Paragraph 4 of that Schedule provides that the Rules may modify the rules of evidence, thus showing that where it is intended that the Rules could modify the substantive law, express provision is made for this.”

The same power to “modify the substantive law” is accorded to both civil and family proceedings rule-makers – no more.

Why ‘open justice’?

The question remains: why open justice? Probably the best answer is provided by Jeremy Bentham, often quoted. For example, Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 said:

“[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question…: who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process…. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott [above] at 477: ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

In their joint speech in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 316 Lords Simon and Scarman said:

“(3) Public policy and the duty of the judge. [A duty of the judge is] to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in [Scott], that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p. 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.”

Tucked away in para 21 of Sir Andrew’s Confidence is the assertion:

“The family courts are part of the overall justice system. “Open justice” is a fundamental constitutional imperative, to which there may be exceptions. Through open justice, the workings of the justice system are held up to public scrutiny by hearings being open to the public and/or by permitting media reporting of the proceedings.”

The meaning of this statement, and its source in Scott and such cases as Guardian v Westminster and its effects on the working of family cases is not examined by the President. It must be the law that the rule of law is served by all cases being held in open court, with only principled exceptions authorised by primary laws: namely by parliament (see AJA 1960 s 12(1)) and the common law (per Scott (above)). Without clear delegated authority rule-makers cannot lawful do this.

Sir Andrew is, understandably, concerned about the anonymity of children and (as need be) their parents (as is the House of Lords in Scott).

“33 All the changes I am setting out below must be subject to the proviso that the anonymity of individual children needs to be preserved. The welfare of children is what much of family justice is about. There is no doubt that the vast majority of children involved in these cases do not want to be identified and want to maintain their complete anonymity.

34 Therefore it is critical that full protection is in place for them, and where possible the scope of transparency is explained to them.”

Even that comment, though mentioned in relation to European Convention 1950 Arts 6 and 8, is not considered in the light of Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, which defines the balance to be tested by courts between privacy for a child (European Convention 1950 Art 8), and publicity for their parent’s open trial proceedings (Art 6.1: criminal proceedings in that case).

Release of court documents

What documents can be released to non-parties? Confidence is disappointing on this subject which has been so much in the law reports over the past twelve years. It says:

“42 There is a difficult issue about what documents journalists and bloggers should be able to see…. In a system where oral submissions are often limited and extensive reference is made to skeleton arguments this is the only way that an observer can understand what is happening. Equally, when oral evidence is usually largely taken as read, a journalist who does not have the witness statements will not be able to understand the case.

43 The detail of what documents should normally be given to journalists in the different setting of a family hearing is a matter that will need further consideration…. In all cases the judge will have a discretion to withhold documentation if that is necessary on the facts of the case.”

There is a wealth of recent law on this subject: from Harman v Home Department (above), Guardian v Westminster (above) and Cape Intermediate v Dring [2019] UKSC 38, [2019] 3 WLR 429. These cases apply in family courts just as in other courts, as stated by Lady Hale in Cape Intermediate. If the interest of the media is to be sustained, surely the extent to which the law on release of court documents applies to family proceedings must be a high candidate (and courts are properly kept open: see eg Lords Simon and Scarman)? After all, much can be done by advocates to anonymise documents such as skeleton arguments which they produce; and which then can be passed on to the press.

Four factors in open justice

This post therefore returns to the four factors referred to at the beginning of this post: anonymity, release of information to non-parties (such as the press), attendance of non-parties in court and publication of what happens there.

Anonymity in the case of children is a given; but for others and of witnesses in family proceedings? Surely this must only be for reason (see eg CPR 1998 r 39(4)). Only a few days ago Mostyn J fired a warning shot on this subject in BT v CU [2021] EWFC 87, [2021] WLR(D) 557 Mostyn J when he warned that it was difficult to justify anonymity in financial relief cases (cf the same judge’s judgment in W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), [2013] 1 FLR 1513), where on family proceedings appeals names were published. The couple in BT v CU were allowed anonymity since the husband had issued his application expecting anonymity; but future applicants must be warned.

On release of documents to non-parties (eg the press and legal bloggers). If a range of documents (eg skeleton arguments, statements and experts reports) are suitably anonymised this must surely follow the common law as explained above. Subject to lawful privacy rules, justice must be open (if there is really anyone that interested in attending; but that is a whole separate question in itself).

Publication and AJA 1960 s 12(1)

And publication? This engages perhaps the most tricky question of all, as recognised by Sir Andrew. AJA 1960 s 12(1) (as amended) says:

“12 Publication of information relating to proceedings in private

(1)The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) 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 the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b) where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;

(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.”

Take the list in this sub-section, first. Section 12(1)(a) is surely not controversial. But s 12(1)(e)? It could be said that family proceedings rule-makers – and many family judges (save Holman J: see eg Fields v Fields [2015] EWHC 1670 (Fam), [2016] 1 FLR 1186) when dealing with financial relief cases – have deliberately ignored the fact that to make many types of proceedings “private”, then neither the rule-maker not the “court has power to do so”: that is rule-makers have no power to make proceedings private save for clear and good cause (eg per the list in CPR 1998 r 39.2(3)).

There are so many legal holes in this. Family proceedings are only “private” because rule-makers say so. It is nowhere in primary law; and if Mostyn J can change the law because he says “transparency” is coming in, why cannot the law laid down by rule-makers law be changed in line with “transparency”? FPRC could say that family proceedings except as listed in s 12(1) are not “private” after all.

For example, one of the egregious aspects of family proceedings being private is that on the same facts in criminal and civil proceedings an alleged domestic abuser can be sued/prosecuted in open court proceedings. In family proceedings he – it might be “she” – must be dealt with in secret. With Domestic Abuse Act 2021 still on the horizon surely this can no longer be justified, unless children are involved.

Open justice in family proceedings

A lot of questions remain to be answered, as Sir Andrew would be the first to admit. A clear statement of the underlying common law and an acceptance that – as in appeal courts – open justice is the default position for all civil and family proceedings (subject to the list in CPR 1998 r 39.2(3)), must be matters high on any family courts reformer’s list. This post comes full circle. All family cases must be in open court and without anonymity, save where the law lawfully demands otherwise.

David Burrows is the author of Open Justice and Privacy in Family Proceedings, Law Society (2020).

Featured image: sign outside the Royal Courts of Justice judges’ entrance (Carey St). Photo by Paul Magrath.