Bethany Brown, Lecturer, NTU https://www.ntu.ac.uk/staff-profiles/law/bethany-brown
The family court is a closed court room, shut off to members of the public. But if you, as a member of the public, could walk in off the street, you would see that it is a place where there is a contagious atmosphere of stress, fear, and sometimes suffering. It is where you will see the challenges of parenthood. You will likely see embarrassment, blame, dishonesty, and you may see some of the worst behaviour perpetrated by parents in the context of children. This leads me to ask: do we, as members of the public, really want to or need to know what is happening in that court room?
For a long time, the courts in England and Wales have had rules on the publicity of Family Law proceedings. These rules have dictated that, per Part 27.11 of the Family Procedure Rules, members of the public cannot be present during family proceedings. Similarly, those rules dictate that the media can only attend in exceptional circumstances, and what journalists can report is extremely limited. For parents’ this has created privacy, anonymity, and arguably a safe environment where one’s dirty laundry can be aired without the world’s gaze to contend with.
In 2021 the President of the Family Division, Sir Andrew McFarlane produced a report titled ‘Transparency in the Family Court’ where he reported that our current rules where ‘a journalist may attend any hearing but may not always report what they observe, is not sustainable.’ The President’s conclusion is “that the time has come for accredited media representatives to be able, not only to attend hearings, but to report publicly on what they see and hear.” The President’s focus is to increase transparency in the Family Justice System and thereby enhance public confidence, whilst also maintaining the anonymity of those families and children. He aims to achieve this by maintaining anonymity and keeping confidential intimate details of their private lives.
The latest case law attempting to live up to that aspiration of balancing transparency with anonymity is Re T (A Child) (No.2) (Transparency: Publication of the Party’s Names). The proceedings commenced in 2013 regarding contact between the children and the father. The children were aged 4 and 7 at the commencement of proceedings. This family has been involved in proceedings from 2013 to 2022, and there have been over 70 hearings involving over 26 judges. The children at the time of this judgment were aged 15 and almost 18.
Throughout the various proceedings, allegations were made by the mother against the father in the proceedings which were found to be unfounded. At the latest hearing, which was solely focused on the publication of the judgment, submissions were made about the need for anonymity. The mother submitted that all names should be anonymised. This was on the basis that when considering the balance between the European Convention on Human Rights Article 10 rights to Freedom of Expression, which favoured publication, and the right of herself and the children to be unnamed to maintain respect for their private and family life under Article 8 of the Convention, the argument was weighted in favour of anonymisation.
In contrast the father of the two children submitted that the names of the parents should be published in full when the youngest children reached 18 years of age. He submitted that the public interest in publication outweighed the mother and children’s Article 8 rights. His argument was particularly focused on the number of years the family had been in proceedings. He argued that the court’s findings had never been shared with the children and it was likely that they had been given a misleading information.
The judge held that the judgment would name the parents once the children both turned 18 years of age, but the children’s names would be removed, and they would be identified by random initials.
Unfortunately, the argument for publication and thus transparency to the public in this particular case seems unconvincing for three key reasons.
Firstly, it is questionable what benefit this decision to name their parents in a judgment will have for the children. The courts paramount consideration should always be the welfare of the child as per section 1(1) Children Act 1989. However, the judge decided that the public interest in publishing the parent’s names was strong and outweighed the wishes of the children that all parties to the proceedings should remain anonymous. They both as older children voiced their wishes and feelings that they did not want the judgment to name their parents or themselves now or at any time in the future, as the details of their family life should be kept private. It is understandable after living through such long proceedings the last thing they would want is for their teachers, friends, and friends’ parents to know the specific intimate details about what has been happening in their family, which may impact their emotional and educational needs as per section 1(3)(b) Children Act 1989. Whilst it is acknowledged that it would be beneficial for the children to have some neutral non bias explanation of the proceedings and associated judgments, the question arises whether naming the parents would really be necessary? Especially as there does not seem to be reason enough to say that the mother is not capable of meeting the children’s needs as per section 1(3)(f). Could we not come up with an alternative solution whereby a child at the age of 18 is able to attain proceedings relevant to them, rather than open parents up to a modern-day witch hunt? Such a ‘witch hunt’ may cause emotional harm to the child as per section 1(3) Children Act 1989. Furthermore, is it acceptable to discharge this consideration of welfare simply because a child has legally turned into an adult when in, in reality, emotional development continues to happen for many years after an individual turns 18 years of age?
Secondly, the aim of naming the parents is questionable. An anonymised judgment has just as much effect within the public sphere with a label of ‘Mother’ or ‘Father’. It seems the only positive is that a child could easily locate said judgment if on the off chance they chose to read the same. But it is questionable whether we are prepared for the public repercussions of naming those parents. We see what was once a witch-hunt with pitchforks, has now turned into trolling on social media. There are real questions about whether we are prepared to deal with posts on Facebook or other social media sites “naming and shaming” parents for the benefit of public interests to show how the family courts function. In such instances, the aim of the family court to create greater transparency could conceivably create a real criminal issue; that of ‘trolling’. The publication of family proceedings by the courts may well mean that, in the future, the police will have to deal with crimes such as harassment or malicious communications, as members of the public target the now known parties to family proceedings on social media. This is problematic for two reasons. Firstly, it creates potential additional workload for the police, and may create an unhelpful friction between the family and criminal law. Secondly, it opens up already vulnerable parties to abuse, when, as noted above, they would have entered the family courts with an expectation of privacy.
Finally, thirdly, when considering the broader context, it is questionable whether the public actually needs this level of transparency. If we consider the description given in the first paragraph of this blog article about the information disclosed in these court rooms, it begs the question what are we exposing the public too? Will there be the same warning we hear on the television about viewers being aware that some scenes may be distressing? Or that some people may find the contents of the report triggering? How are the public going to be supported after being supplied traumatic information?
It is understandable that we want the public to be assured that we have a fair and just legal system but in reality, there are no real winners in the family court room. This latest case gives rise to questions about whether there is there too much focus on repairing the reputational damage of the Family courts, so that instead the justice system overlooks the primary focus of the welfare of the child?
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