Historically, privacy was the norm in family proceedings – and until recently, proceedings would always be held in private. Only those directly involved (including the judge, lawyers and court staff) could be present to hear and see what went on in court. Nothing could be repeated outside court and there could be no publicity.
Increasingly, there has been mounting pressure for some independent observation of family proceedings. The argument was that family courts were making very important decisions (for example, the removal of children into care in cases involving very complicated and contentious expert evidence). Historically, the reasons for such decisions were never made public and there was a growing feeling that it would be consistent with the requirement for transparency in court proceedings for there to be independent observation and reporting.
In 2010, new Rules governing the conduct of family proceedings were introduced. These allowed “accredited” members of the press to seek permission to be present. The expectation was that permission would be given unless there were very good reasons not to do so.
In practice, the press made very few such requests. The main reason was that the details the press was permitted to report were restricted to the issues in the case, but only in very general terms (for example, that the case related to allegations of violence by a parent against a child or parental drug or alcohol abuse etc). In effect, the way in which they were permitted to report cases was so limited as to be of little help in achieving a wider public understanding of the family courts.
In 2014 the most senior family court judge issued Guidance to judges. This stated that, as a matter of public policy, there should be greater openness in the family courts. The purpose was to raise public awareness of how the courts operate. Further, there was to be much wider use of publication of judgments where judges explained their reasons for decisions in individual cases.
It was pointed out that the judge always retained the right to decide whether there could be publicity. Inevitably, this wide discretion has led to differences of approach between judges. Some very much favour the proceedings being heard in public and reported; others take a more cautious approach and feel that the issues discussed are so specific to the families concerned that it would be rare to justify the lifting of the publicity veil.
The current position is unsatisfactory. It is difficult for legal advisors to know whether there will be publicity in a particular case. However, some general points can be made.
Cases involving children where there are disagreements between parents and sometimes wider family members will nearly always be heard in private and there will be no reporting. A case which might be publicised could be where a child has been removed by one parent without agreement of the other and the child’s whereabouts are not known. The judge is likely to decide that press publicity could help locate the child.
Cases involving applications for the removal of children from parents (care cases) will be heard in private although the press would be given the right to attend. The judge’s final decision, suitably anonymised, is likely to be included in the law reports, which are open to scrutiny by the press and the public.
Some proceedings concerning children, such as whether medical treatment should be given or withheld, will always be in private. However, the press will usually be given permission to be present but again with restrictions on the way the case can be reported. Permission to report the anonymised decision of the judge is, however, invariably given because the principles involved, often of life and death, involve public interest and policy.
Where there are family proceedings relating to money, it is more difficult to predict the attitude that will be taken by the judge as to whether the case should be heard in private or publicly.
The judge who recently dealt with the divorce proceedings of a high profile celebrity refused to allow the press to be present, despite the pleas of the press that the case was of genuine interest to the public. It is believed that, arising from this case, the question of publicity is to be referred to the Court of Appeal. Perhaps some much needed clarification will in due course emerge in this difficult area.