I wrote a piece for the blog back in March 2020 about the case of Z (A Child: committal proceeding)  EWFC B5 (24 January 2020). It concerned a private children law matter where the father had tampered with a drug testing report – which would have shown that he had tested positive for cocaine use – using Adobe Acrobat Pro. He was sentenced to 12 months’ imprisonment, suspended for two years, because of his actions. Contact between him and the child, ‘Z’, regressed back to supported contact.
My post queried why the father had been anonymised; while it is usual for children proceedings to be heard in private and for judgments to be anonymised, this is not usual for committal proceedings. The post concluded: “Arguably the guidance does not permit the anonymisation of the father in the published judgment at all.”
So, it’s not surprising that since that that piece was written, a new version of the published online ruling has been made available naming the father: Daniel Wallace. Media Lawyer reports that former Liberal Democrat MP, John Hemming – a long-standing campaigner for transparency in the family courts – wrote to the president of the Family Division outlining his concerns about Mr Wallace’s name being redacted. A spokesperson for the Judicial Office has now said that the judgment redacted Mr Wallace’s name in error.
Mr Hemming also raised concerns about another judgment handed down by HHJ Gillian Matthews QC (though I’ve been unable to track down this judgment) where a man was slapped with a 9-month jail term for removing the children from their mother’s care. Again, it seems the man was not named in the published judgment.
Mr Hemming said
“It’s now nearly seven years since the first practice direction in 2013. There was a second practice direction in 2015. Yet still the message isn’t getting through. People are still being given jail terms in secret by family court judges.”(NB: unfortunately, I’ve been unable to find a publicly available source for the comments above other than the subscription-only Media Lawyer service).
Mr Hemming is referring to then Lord Chief Justice, Lord Thomas’ practice direction in 2015 on ‘Committal for Contempt of Court – Open Court‘. That practice direction was flagged up back in my piece in March.
The practice direction reiterates that: “Open justice is a fundamental principle.” Committal proceedings are to be listed and heard in public. If the court decides to derogate from that general rule and hold the hearing in private, it should notify the national media who will then have the opportunity to make submissions at the outset of the committal hearing about the proposed derogation. If the court decides to exercise its discretion to derogate from the general rule and to hold a hearing in private, it must sit in public first and give a reasoned public judgment setting out why it is doing so. That doesn’t seem to have been done in this case so we still have no real understanding of why the matter was heard in private.
The guidance states unequivocally that in all cases, irrespective of whether the court conducted the hearing in public or in private, and the court finds that a person has committed a contempt of court, the court shall sit in public at the conclusion of the hearing and state: (i) the name of the person; (ii) in general terms, the nature of the contempt of court in respect of which the committal order is being made; and (iii) the punishment. The court is to provide (i) and (ii) to the national media and to the Judicial Office for publication on their website.
The practice guidance is clear that there are no exceptions to these requirements: “There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public.
So, a gentle reminder to judges: casual treatment of the existing guidance around open justice is likely to be spotted and called out.
We have a small favour to ask!
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Feature Pic Bars Creative Commons thanks Alberto at Flickr