Articles and Publications
Seeing is Believing –Transparency in the Family Courts
02/Mar/2009
Introduction
On 22 May 2006 the Minister of State for Constitutional Affairs, Harriet Harman MP, delivered a speech to a judicial conference, setting out her vision for the future of the family justice system. She debated how outsiders to the family courts view the work of these Courts, considering issues of openness, public confidence and protecting privacy.
Ms Harman commented:-
'Public confidence in any part of the legal system is necessary for its own sake but also because it is necessary if people affected by court judgments are to accept them. It is important that a system which affects so many is understood by all. It is important that a system which makes such major decisions in people’s lives commands public confidence. Families need confidence in the outcome of the case and the public needs confidence in the system. I don’t think the interests of families and the public interest are in conflict. They are the same.'
Public confidence depends on public scrutiny. Justice not only has to be done, it has to be seen to be done. The public will find it difficult to have confidence in a system of justice which takes place behind closed doors.
It is against the backdrop of these comments, that the Government has now launched a consultation paper to urge a change of culture and to end the secrecy of the family courts. It is anticipated that these proposed changes will allow public accountability and generate public confidence, and at the same time guarantee family anonymity and confidentiality.
The recent Court of Appeal decision in Clayton v Clayton [2006] EWCA Civ 878, provides an insight into current judicial thinking on this topical issue.
The Legal Framework
Children Act proceedings are private in nature, heard in chambers and publicity is inherently restricted. Such restrictions give rise to a clear exception to the general principle that justice, to be done and be seen to be done, should be conducted in open court.
Section 12(1) of the Administration of Justice Act 1960 treats children’s cases as an exception to the general rule relating to the publication of court proceedings. Section 12 provides that the publication of information relating to proceedings before any court sitting in private is a contempt of court where the proceedings are brought under the Children Act 1989, or relate wholly or mainly to the maintenance or upbringing of a minor.
The provision under S97(2) Children Act 1989 provides for further prohibition, albeit not absolute, against publishing material about a child:-
'(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify-
(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.'
Section 97(4) goes on to provide that if the welfare of the child demands it, the court may dispense with the subsection 2 requirements to such an extent that it deems necessary and appropriate.
The balancing exercise as to what information may be provided to the outside world, needs to be considered in conjunction with human rights provisions. This is because the injunction is sought and granted as part of the court's consideration of a question regarding the upbringing of the child concerned. In such a case the child's welfare, which includes respect for his privacy free from damaging publicity, is the court's paramount consideration.
Clayton & Clayton
On 27 June 2006 the Court of Appeal gave judgement in a father's appeal, which related to an injunction granted in November 2004 restraining him from publishing various matters concerning the child until the child's 18th birthday in 2016. At a later hearing in August 2005 the judge continued that injunction despite opposition being raised by the father. During the course of the Children Act proceedings, Mr Clayton abducted his daughter and took her to Portugal. He was arrested and sentenced to imprisonment for child abduction. The abduction received a great deal of publicity, including featuring in a television documentary. After his release, Mrs Clayton became aware that Mr Clayton wished to take their daughter back to Portugal with him to make a video diary retracing his steps during the abduction. At that time, the Children Act proceedings had been adjourned but Mrs Clayton obtained an injunction restraining Mr Clayton from publishing any matter relating to their daughter until her 18th birthday.
Eventually, both parties were able to compromise the outstanding issues between them. Both parents effectively consented to the discharge of all previous orders and the subsequent withdrawal of all applications for orders under the Children Act on the basis of a shared case arrangement. However, the parties were not agreed on the question of the continuation or discharge of the injunction granted earlier in the proceedings, as set out above.
The court continued the injunction on the grounds that the child's freedom from publicity and right to private life under Article 8 of the European Convention on Human Rights, outweighed her father's right to freedom of speech under Article 10.
Mr Clayton argued that the judge misconstrued the 1989 Act since the prohibition on publication likely to identify a child contained in Section 97(2), only lasted until the conclusion of the proceedings in question, which in this case concluded at the time of the agreement reached between the parties. In the alternative, he submitted the Human Rights Act 1998, required that Section 97(4) of the 1989 Act should require the court to lift the prohibition on publication in all cases in which the right of expression under Article 10 outweighed any Article 8 right of the child. He further submitted that the judge was wrong to find that any Article 8 right of the child was engaged and that the judge had failed to identify in specific terms the manner in which, or the extent to which, his daughter's rights would be interfered with by the publication that Mr Clayton wished to make.
The Court of Appeal commented,
'following an end to the proceedings, the prohibition on identification under section 97 will cease to have effect, the limitation upon reporting information relating to the proceedings themselves under section 12 AJA will remain.'
However the court could:
'in the welfare interest of the child and in order to protect his or her privacy under Article 8, make an injunction or order which prohibits the identification of the child not simply to the extent set out in section 97(2) of the 1989 Act, but for a period beyond the end of the proceedings (eg. until the age of 18). However, in deciding to make a long term injunction aimed at restricting the reporting and publication of proceedings involving children, the court is obliged in the face of challenge to conduct a balancing exercise between the Article 8 rights of the child and the Article 10 rights of the parent asserting such right, and/or, where press or media interest is involved, the article 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest.'
On appeal however, the Court of Appeal observed that the trial judge erred in extending the injunction:
'… he was wrong to do so. Bearing in mind the position of the father as an active campaigner for the improvement in the processes and outcomes of the family justice system and his role as an advisor to others in that connection, as well as his views and interests concerning shared parenting arrangements, the terms of the injunction were far too wide in their effect, preventing the father as they did from referring to his own case as one satisfactorily resolved by the particular shared parenting agreement approved by the judge.'
The Court of Appeal allowed the appeal and discharged the injunction. It was replaced by a prohibited steps order restraining the father from revisiting Portugal with the child, and from involving her in any way with the publication of any information relating to his abduction of her. In real terms:
'The practical consequence which flows from this judgment is that henceforth it will be appropriate for every tribunal, when making what it believes to be a final order in proceedings under the 1989 Act, to consider whether or not there is any outstanding welfare issue which needs to be addressed by a continuing order for anonymity. This will, I think, be a useful discipline for parties, judges and family practitioners alike. If there is no outstanding welfare issue, then it is likely that the penal consequences of section 97 of the 1989 Act will cease to have any effect, and the parties will be able to put into the public domain any matter relating to themselves and their children which they wish to publish, provided that the publication does not offend against section 12 AJA 1960.'
There was however a word of warning from the court:
'The fact that the provisions of section 97(2) of the 1989 Act cease to operate after the conclusion of the proceedings does not mean that parents are free at that point to draw their children into an ongoing public debate about their welfare or other wider issues. The court, after the conclusion of the proceedings, retains its welfare jurisdiction and will be able to intervene where a child’s welfare is put at risk by inappropriate parental identification for publicity purposes.'
Conclusion
With the present climate, cases are conducted in secret, with a lack of accountability to the public and to Parliament. This only serves to fuel the ever increasing climate of fear and suspicion of a general public, who now want transparency in a system which is designed to serve them and their children.
Some, however, will need to be persuaded that the consequent benefits of openness and transparency, will not lead to damaging publicity about people’s private lives. There would be an absolute necessity for there to be a clear understanding and enforcement of anonymity for families and children involved in family proceedings.
It is inevitable that this high profile judgment is a significant step towards greater transparency in the family justice system and will also start to restore some degree of public confidence. This is essential as, unfortunately, far too many families need to make use of the family justice system.
On 22 May 2006 the Minister of State for Constitutional Affairs, Harriet Harman MP, delivered a speech to a judicial conference, setting out her vision for the future of the family justice system. She debated how outsiders to the family courts view the work of these Courts, considering issues of openness, public confidence and protecting privacy.
Ms Harman commented:-
'Public confidence in any part of the legal system is necessary for its own sake but also because it is necessary if people affected by court judgments are to accept them. It is important that a system which affects so many is understood by all. It is important that a system which makes such major decisions in people’s lives commands public confidence. Families need confidence in the outcome of the case and the public needs confidence in the system. I don’t think the interests of families and the public interest are in conflict. They are the same.'
Public confidence depends on public scrutiny. Justice not only has to be done, it has to be seen to be done. The public will find it difficult to have confidence in a system of justice which takes place behind closed doors.
It is against the backdrop of these comments, that the Government has now launched a consultation paper to urge a change of culture and to end the secrecy of the family courts. It is anticipated that these proposed changes will allow public accountability and generate public confidence, and at the same time guarantee family anonymity and confidentiality.
The recent Court of Appeal decision in Clayton v Clayton [2006] EWCA Civ 878, provides an insight into current judicial thinking on this topical issue.
The Legal Framework
Children Act proceedings are private in nature, heard in chambers and publicity is inherently restricted. Such restrictions give rise to a clear exception to the general principle that justice, to be done and be seen to be done, should be conducted in open court.
Section 12(1) of the Administration of Justice Act 1960 treats children’s cases as an exception to the general rule relating to the publication of court proceedings. Section 12 provides that the publication of information relating to proceedings before any court sitting in private is a contempt of court where the proceedings are brought under the Children Act 1989, or relate wholly or mainly to the maintenance or upbringing of a minor.
The provision under S97(2) Children Act 1989 provides for further prohibition, albeit not absolute, against publishing material about a child:-
'(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify-
(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.'
Section 97(4) goes on to provide that if the welfare of the child demands it, the court may dispense with the subsection 2 requirements to such an extent that it deems necessary and appropriate.
The balancing exercise as to what information may be provided to the outside world, needs to be considered in conjunction with human rights provisions. This is because the injunction is sought and granted as part of the court's consideration of a question regarding the upbringing of the child concerned. In such a case the child's welfare, which includes respect for his privacy free from damaging publicity, is the court's paramount consideration.
Clayton & Clayton
On 27 June 2006 the Court of Appeal gave judgement in a father's appeal, which related to an injunction granted in November 2004 restraining him from publishing various matters concerning the child until the child's 18th birthday in 2016. At a later hearing in August 2005 the judge continued that injunction despite opposition being raised by the father. During the course of the Children Act proceedings, Mr Clayton abducted his daughter and took her to Portugal. He was arrested and sentenced to imprisonment for child abduction. The abduction received a great deal of publicity, including featuring in a television documentary. After his release, Mrs Clayton became aware that Mr Clayton wished to take their daughter back to Portugal with him to make a video diary retracing his steps during the abduction. At that time, the Children Act proceedings had been adjourned but Mrs Clayton obtained an injunction restraining Mr Clayton from publishing any matter relating to their daughter until her 18th birthday.
Eventually, both parties were able to compromise the outstanding issues between them. Both parents effectively consented to the discharge of all previous orders and the subsequent withdrawal of all applications for orders under the Children Act on the basis of a shared case arrangement. However, the parties were not agreed on the question of the continuation or discharge of the injunction granted earlier in the proceedings, as set out above.
The court continued the injunction on the grounds that the child's freedom from publicity and right to private life under Article 8 of the European Convention on Human Rights, outweighed her father's right to freedom of speech under Article 10.
Mr Clayton argued that the judge misconstrued the 1989 Act since the prohibition on publication likely to identify a child contained in Section 97(2), only lasted until the conclusion of the proceedings in question, which in this case concluded at the time of the agreement reached between the parties. In the alternative, he submitted the Human Rights Act 1998, required that Section 97(4) of the 1989 Act should require the court to lift the prohibition on publication in all cases in which the right of expression under Article 10 outweighed any Article 8 right of the child. He further submitted that the judge was wrong to find that any Article 8 right of the child was engaged and that the judge had failed to identify in specific terms the manner in which, or the extent to which, his daughter's rights would be interfered with by the publication that Mr Clayton wished to make.
The Court of Appeal commented,
'following an end to the proceedings, the prohibition on identification under section 97 will cease to have effect, the limitation upon reporting information relating to the proceedings themselves under section 12 AJA will remain.'
However the court could:
'in the welfare interest of the child and in order to protect his or her privacy under Article 8, make an injunction or order which prohibits the identification of the child not simply to the extent set out in section 97(2) of the 1989 Act, but for a period beyond the end of the proceedings (eg. until the age of 18). However, in deciding to make a long term injunction aimed at restricting the reporting and publication of proceedings involving children, the court is obliged in the face of challenge to conduct a balancing exercise between the Article 8 rights of the child and the Article 10 rights of the parent asserting such right, and/or, where press or media interest is involved, the article 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest.'
On appeal however, the Court of Appeal observed that the trial judge erred in extending the injunction:
'… he was wrong to do so. Bearing in mind the position of the father as an active campaigner for the improvement in the processes and outcomes of the family justice system and his role as an advisor to others in that connection, as well as his views and interests concerning shared parenting arrangements, the terms of the injunction were far too wide in their effect, preventing the father as they did from referring to his own case as one satisfactorily resolved by the particular shared parenting agreement approved by the judge.'
The Court of Appeal allowed the appeal and discharged the injunction. It was replaced by a prohibited steps order restraining the father from revisiting Portugal with the child, and from involving her in any way with the publication of any information relating to his abduction of her. In real terms:
'The practical consequence which flows from this judgment is that henceforth it will be appropriate for every tribunal, when making what it believes to be a final order in proceedings under the 1989 Act, to consider whether or not there is any outstanding welfare issue which needs to be addressed by a continuing order for anonymity. This will, I think, be a useful discipline for parties, judges and family practitioners alike. If there is no outstanding welfare issue, then it is likely that the penal consequences of section 97 of the 1989 Act will cease to have any effect, and the parties will be able to put into the public domain any matter relating to themselves and their children which they wish to publish, provided that the publication does not offend against section 12 AJA 1960.'
There was however a word of warning from the court:
'The fact that the provisions of section 97(2) of the 1989 Act cease to operate after the conclusion of the proceedings does not mean that parents are free at that point to draw their children into an ongoing public debate about their welfare or other wider issues. The court, after the conclusion of the proceedings, retains its welfare jurisdiction and will be able to intervene where a child’s welfare is put at risk by inappropriate parental identification for publicity purposes.'
Conclusion
With the present climate, cases are conducted in secret, with a lack of accountability to the public and to Parliament. This only serves to fuel the ever increasing climate of fear and suspicion of a general public, who now want transparency in a system which is designed to serve them and their children.
Some, however, will need to be persuaded that the consequent benefits of openness and transparency, will not lead to damaging publicity about people’s private lives. There would be an absolute necessity for there to be a clear understanding and enforcement of anonymity for families and children involved in family proceedings.
It is inevitable that this high profile judgment is a significant step towards greater transparency in the family justice system and will also start to restore some degree of public confidence. This is essential as, unfortunately, far too many families need to make use of the family justice system.
