Understanding of the ‘intelligent and well-informed’ observer in open family courts
David Burrows considers the position of non-parties such as journalists or lay observers in attending, making sense of, and reporting on family courts appeals.… Continue reading
Significant issues of public interest
In Tickle v Father & ors  EWHC 2446 (Fam) (Lieven J, 5 October 2023) a journalist (Louise Tickle) applied to be allowed to report a family case in which parents were in dispute over the care of an “under the age of 5” child. The case had been set down before a circuit judge and was to be heard in mid-October 2023 over four days. At an earlier case management hearing in August, another circuit judge (HHJ Haigh) had refused to permit the journalist to report the part of the proceedings which she had been able to attend, and adjourned her application to the final hearing, in the light of the objections of the father and the child’s court-appointed guardian. She was effectively prevented from reporting anything unless and until she waited until the later hearing to do so, and perhaps not even then. The journalist appealed to the High Court.
What is the position of a non-party – journalist (say) or lay-person – who wants to attend such a family courts appeal; and is the position of the lay-person any different from that of the journalist? If they are permitted to attend what documents are non-parties (including journalists) entitled to receive to make sense of the proceedings?
Lieven J allowed Ms Tickle’s appeal and, in the course of so doing, she recorded the following, at :
“Ms Tickle was permitted, by the Judge, to pursue her application orally. In the course of those submissions Ms Tickle set out the significant issues of public interest upon which her application to report was based:
- Continuing practical difficulties arising due to the lack of legal aid provision;
- The disruption caused to private law applications concerning children;
- Problems for the court system, and other families within the court system, of delays/adjournments where time has to be found for cases;
- Issues regarding transparency and media attendance, including the culture of the Family Justice System’s interaction with/response to the media, especially in the context of the ongoing Transparency Pilot.”
Family proceedings rule makers have truly got themselves, litigants in the family courts and would-be observers in a mess over the relatively clear issues in the questions above. Many experienced family lawyers would struggle with answers to the above questions. How can lay people be expected to answer the questions; and in a system which is intended to be ‘open’.
Open justice and the common law
Open justice is entirely a matter of common law, save as varied by Parliament. This was explained by Toulson LJ in a passage approved on a number of occasions since by the Supreme Court, namely in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618:
“ The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.”
There is “statutory provision”, mentioned by Toulson LJ, namely:
- Administration of Justice Act 1960 s 12(1), which says that if a hearing is “in private” it will not necessarily be a contempt of court to publish information about the hearing, unless it relates to, for example, children or to proceedings under Mental Capacity Act 2005.
- European Convention on Human Rights 1950 (ECHR 1950) Art 6.1 defines certain exceptions for privacy “where [such exceptions are] necessary”.
- Children Act 1989 s 97(2) restricts publicity about children during the currency of proceedings concerning them.
It is worth recording also that Louise Tickle has alighted on four very important topics (recorded above); though in terms of openness there should have been no need for her to define her concerns in this way.
Legal aid and delays are critical to fairness and the disposal of children proceedings (both to be covered by me and separately in forthcoming articles in New Law Journal). It must always be recalled that all cases must be disposed in a ‘reasonable time’ (ECHR 1950 Art 6.1). Yet how often do lawyers plead that ‘reasonable time’ imperative – especially in relation to children proceedings alongside Children Act 1989 s 1(2) (presumption of prejudice to a child’s welfare if cases are delayed)?
Open justice and a hearing ‘in private’
“Statutory provision” does not include either a court rule or a practice direction (both lesser means of delegated legislation; and see eg Where have all the practice directions gone?). Lady Hale explained this in relation to court rules in Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 when she said: ‘ [Court rules cannot] change the substantive law unless expressly permitted so to do by statute’. She went on to explain this in the context of Civil Procedure Act 1997 which defines rule makers’ powers for civil proceedings. Statutory provision having exactly the same effect as the 1997 Act is in Courts Act 2003 ss 75 and 76 to define the powers of family proceedings rule makers.
The common law says very clearly that all court proceedings shall be in open court (Scott v Scott  UKHL 2,  AC 417) subject to limited exceptions. Provision for hearings to be ‘in private’ are derived directly from the common law and codified by rules namely CPR 1998 r 39.2. CPR 1998 r 39.2 follows the common law. Nominally for family proceedings FPR 2010 r 27.10 says all family proceedings are to be heard ‘in private’. This goes a long way beyond what the common law allows. If r 27.10 were challenged by a party to family proceedings it is likely to be held to be unlawful. It has no basis in law (common law or statute). Family proceedings must be heard only in accordance with the limits in Scott (itself a family case) and as refined since by CPR 1998 r 39.2.
Why open justice?
In the Guardian v Westminster case, Toulson LJ was speaking in the context of an application by The Guardian for papers in a case after the court decision had been made. The Court of Appeal granted the application of The Guardian and in so doing Toulson LJ explained the extent of the open justice principle and the importance of journalists and others being able to report what goes on in court:
“ 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. Quis custodiet ipsos custodes – 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. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted… in Scott v Scott  AC 417, 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’.”
But how could non-parties critically observe or journalists report if they did not understand what was going on? Toulson LJ addressed this and explained that judges at least since Lords Scarman and Simon, in their joint speech in Harman v Secretary of State for the Home Department  1 AC 280,  2 WLR 338 had considered openness in terms of pre-reading of court documents. He developed the point by reference to the SmithKline Beecham case (below). Non-parties must be entitled to see what the judge had read (ie which was not otherwise read out in court) if they were to understand the case.
Clarity and the rule of law
Yet still, forty years later, the position for hearing appeals in the family courts, and what non-parties are allowed to pre-read, is confused. It is highly unlikely it would pass the Bingham first test of the Rule of law: (1) ‘The law must be accessible and so far as possible intelligible, clear and predictable’. (Lord Bingham, Sixth Sir David Williams Lecture, 2006)
This note deals only with appeals in family proceedings which are regulated by FPR 2010 Part 30, especially r 30.12A and, subject to that rule, a practice direction, Practice Direction 30B – Appeals – Transparency (PD30B). Use of a practice direction in this way calls for another caveat in relation to law-making. In KU (A Child) v Liverpool CC  EWCA Civ 475,  1 WLR 2657 the Court of Appeal pointed out the limitations on practice directions, and that in particular they are not law (indeed in at least three cases over the past eight years the Supreme Court has declared particular practice directions to be unlawful). As Brooke LJ said:
“ The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs)  1 FLR 602 at , May LJ in Godwin v Swindon Borough Council  EWCA Civ 1478 at , and Dyson LJ in Leigh v Michelin Tyre plc  EWCA Civ 1766 at -. It is sufficient for present purposes to say that a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”
Rule makers therefore use merely a practice direction to assert what is a matter of law, subject to Administration of Justice Act 1960 s 12(1) and Children Act 1989 s 97(2) (limiting publicity about children). Openness of a family courts appeal should go without saying. Family hearings in the Court of Appeal are unquestionably heard in public (subject only to anonymity for children) and save for very narrow exceptions.
Even so, PD30B, says – in an assertion which should, in law, be redundant – that a family proceedings appeal court proceedings under FPR 2010 Part 30 shall be open:
“2.1 … The appeal court will ordinarily (and so without any application being made) (a) make an order under rule 30.12A (3)(a) that the hearing of the appeal shall be in public…”
Non-parties’ attendance at appeals
I return to my two questions earlier: (1) What non-party may attend an appeal; and (2) if they are permitted to attend what documents are non-parties entitled to receive to make sense of the proceedings?
PD30B para 2.1 broadly reflects the common law and no more need be said on (1) here; save for the massive qualification that – unlawfully, surely? – the rule makers assume that for attendance at ‘open court’ appeals, and certainly in relation to release of documents, only journalists and certain lawyers may lawfully attend.
An answer to (2) is provided, but no action taken by rule makers, by two of the finer judicial minds of the past twenty-five and more years ago (Lords Scarman (see above) and Bingham). Lord Bingham (in a judgment of the court in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc  EWCA Civ 1781,  4 All ER 498,  FSR 1) summarised Lord Scarman’s view in Harman and went on (at All ER 511):
“Since the date when Lord Scarman expressed doubt in Harman v Home Office as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.”
Open justice means open to all who want to observe (subject to children anonymity and eg national security and patent cases and other highly confidential matters); but PD30B continues at para 3 with the unpromising ‘Documents to be provided to court reporters at the hearing of an appeal’. The family proceedings rule makers seem to connote open justice with only law reporters and (later in para 3) to ‘duly authorised lawyers’. This overlooks, for example, “intelligent and well-informed member of the public” who is entitled to attend hearings in open court.
Rule-making: family and civil courts appeals
PD30B para 3 is derived closely from the Court of Appeal practice direction on release of documents for law reporters namely CPR 1998 PD52C para 33; so both civil and family proceedings are more or less equally at fault. Both sets of rule makers seem to be equally unaware of the comments of Lords Scarman and Bingham on this subject. The practice directions were ‘updated’ on 25 May 2022 (family proceedings) and 1 October 2022 (civil cases); yet they suggest the rule makers – quaintly, perhaps, were not the rule of law to be at issue – have limited familiarity with modern use (for 30 years and more?) of email. All documents must be provided in hard copy on the day of the hearing so that (for example) in family courts appeals (PD30B):
“3.1 The court will make available to the usher or other court official present in court two copies of the judgment under appeal for provision to accredited law reporters and accredited media reporters in accordance with the provisions of this paragraph.”
How can any journalist (or non-party so far as permitted) be expected to digest an “understanding” of the hearing they observe given this short-timed availability of documents which the parties, any advocates and the judge (often) will have read days before? How can “even an intelligent and well-informed member of the public, present throughout every hearing in open court” expect to understand what is going on?
It gets worse. PD30B para 3 is only for court reporters and authorised lawyers. Family courts appeals seem to ignore the “well-informed member of the public” (mentioned by the Court of Appeal in their judgment above). This is not open justice. It does not scratch the surface of what Lords Scarman and Bingham were explaining.
There is no report, of which I am aware, of any party – or their lawyers – challenging family law’s obsession with secrecy, even for appeals which in the parallel Court of Appeal (“parallel” in the sense of the hearing being from an earlier first instance hearing) would always be in open court (subject to the usual narrow range of exceptions: Norman v Norman  EWCA Civ 49,  1 WLR 2523,  1 FLR 426).
This note ends by urging rule makers:
- To be entirely clear what documents can be sent to any non-party who wants them at an appropriate time in relation to the hearing in question and subject to any permissible restraints (eg as to anonymity of children and per the list in PD30B para 3.6); and
- To find out a little more about use of electronic mail and how it can work to open justice permissibly (and perhaps help non-parties to receive permitted documents direct from the parties or their lawyers).