Amongst family judges it has become quite the rage to open up your court and welcome in – well, probably a few lonely souls and a couple of local journalists, limited to those cases where a parent has been sounding off on Facebook or trying to take a child from hospital against medical advice. Judges have been instructed by Sir James Munby, President of the Family Division, to send their judgments for publication on a semi-official site (BAILII). (To confuse anyone who needs to refer to a case, there are now three categorisations of family case, below the appellate courts; and that does nothing to promote transparency.)
And all of this is because it is thought varied hacks up and down the land will want to know what judges discuss in their judgments and how they – often at around 100 paragraphs length – write about the family cases before them. Are journalists queueing up to sit through long-running care cases; or poring late into the night over yet another variation on how to apply adoption law to the facts?
I doubt it. But – whether or not – family judges are troubled. A ‘confusing road-map’ (per Roberts J in Cooper-Hohn (below)) was how she described what was the law to let in people who might want to hear what is going on in her court. Meanwhile children, who are involved in some of the cases, show a healthy disdain for journalists: more savvy than the President, certainly. They assume that journos do not tell the truth; and hey are unimpressed with Sir James’s efforts to ‘please the media’ (‘Irreconcilable differences/ Young people, safeguarding and “next steps” in “transparency”’, Dr Julia Brophy Family Law  1685).
So what is the law in all this? Over the summer I set out in a couple of blogs a few thoughts on privacy in family proceedings ‘“Transparency” and the common law’ (29 August 2014) (‘Transparency Made Simple’ and ‘Reporting restrictions in financial remedy proceedings: a review after case management in Cooper-Hohn v Hohn’ (6 August 2014) . I suggested that family lawyers were making overly complex the issue of privacy – or, ‘transparency’, as it is euphemistically called: ie privacy’s opposite. Indeed, it seems fairly clear to me they are both looking through the family court privacy telescope from the wrong end; or straining needlessly on a small, if troublesome, gnat.
Privacy at common law
The true position at common law – and it is common law that defines the law in this area – is that there are three grades of civil court hearings:
(1) Proceedings in private, in camera, call it what you will: no one but the parties, their representatives, court staff (including the judge) is allowed in (and see for a check-list, Civil Procedure Rules 1998 r 39.2).
(2) Proceedings in open court, where reporting must be seen through certain statutory restraints, mostly relating to children: Administration of Justice Act 1960, Children Act 1989 s 97 etc (as fully explained by Sir James Munby P in Re J (A Child)  EWHC 2694 (Fam)); and see words of Lord Scarman in Attorney General v Leveller Magazine Ltd  AC 440 at 469.
(3) Proceedings in open court.
Proceedings at (1) are in open court till it is ordered to be closed. In practice many forms of family proceedings – involving money, children etc – will be in private (as now). Other proceedings may not be in private (eg finding of fact in care proceedings); but the press (if any turn up) will need to have a Leveller weather eye on what they publish (and as Munby J reminded them in Spencer v Spencer  EWHC 1529 (Fam) it is not for judges to advise the press what they may and may not print: thereupon Mostyn J (as he then was not) named three of his pigs after the learned judge: ‘pompous’, ‘self-regarding’ and ‘pillock’, he told us)).
Proceedings at (2) are protected – so far as it goes – by statute. And (3) is the ‘open court principle’ (as explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618) protected by the common law and now confirmed by European Convention 1950 Art 6(1).
All this is too easy; so the rule-makers introduced, first, Family Procedure Rules 2010 r 27.10. This rule asserts that all proceedings covered by FPR 2010 shall be ‘in private’, save where the rules or an ‘enactment’ says so or where the court directs otherwise. One look at the court’s reasoning in Allan v Clibbery  EWCA Civ 45 shows that provision to be self-evidently unlawful (a rule cannot change the substantive law: Jaffray v The Society of Lloyds  EWCA Civ 586). Secondly, FPR 2010 r 27.11 creates a maze of sub-rules (I say unlawfully: ie the law does not permit the rule makers to make such a rule); and that maze seeks to define who may and who may not attend at ‘private hearings’.
In reality the subject divides into two aspects: first, attendance at court and by whom; and, secondly, what may be published by those who attend private hearings. Rule 27.11 seeks to deal with the first. Children, Schools and Families Act 2010 s 11 is designed to deal with the second. And in my view neither of these two provisions are good law: the second (very simply) because it has not been brought into operation (and probably will not be).
Artificial arrangements for publicity
And what of r 27.11 and its intention to restrict attendance in court? The courts and media seem to regard themselves as bound by rr 27.10 (privacy for all family proceedings) and by r 27.11. (Anti-democratically, it applies only to certain press-representatives: the rest of us certainly cannot get in.) The powers of Family Procedure Rules Committee, which made these two rules, are set out under Courts Act 2003 ss 75-76; and there is nothing obvious in sections 75 or 76 to permit that committee so radically to override the open court principle set out in common law.
But surely I must be missing something? The press has access to expensive legal advice. Would they not have spotted a chink in any limitations on their right (protected by Human Rights Act 1998 s 12, and European Convention 1950 Art 10), if it were illegally overridden by a rule committee. I cannot see where the power exists to override the open court principle, save in cases of where privacy is ordered (Scott & Anor v Scott  UKHL 2,  AC 417) or where the statutory restrictions on publicity (eg AJA 1960 s 12) apply to make it a contempt of court to publish certain information (mostly about children).
If we all – especially the judges – take the open court principle as the correct end of the telescope – ie the starting or default position. First, to define privacy or open court, put lenses in the telescope (1) for permissible privacy and (2) for statutory limitations, especially for children. The rest – insofar as anyone but the parties is actually interested – is in open court.
18 December 2014