FAMILY COURTS
Representatives of newspapers and news agencies have a right under section 69(2)(c) of the Magistrates’ Courts Act 1980 to attend hearings of the Family Proceedings Court, except in the case of adoption proceedings.
But child care and child welfare proceedings in either the High Court or the county court are closed to both the public and the press. Parliament endorsed that situation in the Children Act 1989. As part of a growing clamour for all Family Courts to be transparent, and a desire on the part of the judiciary to accommodate this move, Mr Justice Munby (now Sir James Munby, President of the Family Division) in November 2006 acceded to an application that the media (but not members of the public) be permitted to attend a hearing in a high-profile case involving children taken into local authority care.[222] As the judge signed off a lengthy and closely reasoned judgment for this exceptional decision, he noted that ‘there was no suggestion that access should be afforded to the public generally.’ And he mused,I say nothing about how an application for public access, had it been made, would have been decided. I merely observe that... different issues may arise if it is to be suggested that the general public and not merely the media should have access.[223]
But how different? As Munby J himself stated:[224]
What goes for the media seeking to exercise their right under Article 10 to ‘impart information and ideas’ to the general public, must also, in my judgment, go for the parents, as they seek to exercise their rights under Article 10... to the media and, via the media to the world at large.
Dr Marjorie Jones, in her 1974 work Justice and Journalism, noted that in informing the public of how justice is being performed in magistrates’ courts, the journalist enters the court ‘as a member of the public taking notes’,[225] even if he is paid to be there.
If the public is excluded, whence does the journalist derive his or her personal right of access? Apart from the statutory right in family proceedings in the magistrates’ court, there is no basis whatsoever for any such right. This represented a serious anomaly, now recognised by the Ministry of Justice’s consultation paper Openness in Family Courts - a New Approach, published in July 2007. The Ministry’s ‘new approach’ for ‘openness’, however, reverts to the principle of the closed doors to Family Courts. In the Government’s earlier consultation, greater openness was said to be required ‘so that people can understand, better scrutinise decisions and have greater confidence.’ That document hence proposed that the media should be allowed, ‘on behalf of, and for the benefit of the public’, to attend proceedings as of right, though the court would have a discretion to exclude them if appropriate to do so in the particular circumstances. Others could apply to the court to be permitted to attend.Once the policy is to ensure the opacity of the proceedings, as an exception to Article 6, there is a blanket exclusion on the attendees (other than parties and relevant participants).
The solution to the problem of protecting children and their families lies not in refusing access to the proceedings, but in the scope and flow of information. It was the same Marjorie Jones who urged reform to prevent injustice by unwanted and prejudicial publicity by legalising anonymity. Her plea was endorsed by the Royal Commission on the Press in its report of 1977 calling on the Government to set up a committee to consider the question of anonymity in all court proceedings. There has been a deafening silence from officialdom, gleefully endorsed by the media, which has persistently maintained its right to name those undergoing the forensic spotlight. Once there are clear restrictions (strictly enforceable) on reporting any details identifying a child or family, why is the welfare of the child at risk? The Judicial Proceedings (Regulation of Reports) Act 1926 effectively curbed the hitherto uncontrolled press reporting of unseemly aspects of some divorce litigation.
Focusing on the potential harmful aspects of the court procedure will at least preserve the right of access exercisable by the citizen, whether or not he or she packs a writing pad and pen in a briefcase. The Benthamite dictum that where there is no publicity there is no justice should be strictly observed. Access is not the preserve of those occupied full-time in reporting the proceedings of a public institution. Culturally, a democratic society will facilitate the journalist’s task as a means of exercising a citizen’s constitutional right of access to justice. There is an important downside to any privilege accorded to the media. If representatives of newspapers or news agencies possess the right, any selection process will involve accreditation. In a paper to the conference on Opening up the Family Courts: an open and closed case on 30 October 2006, Lord Justice Wall (then President of the Family Division) contemplated a dialogue between the judges and the press. He envisaged that the press would reciprocate in the process of opening up the courts, and added: ‘If it does not, the judiciary will have to think of the sanctions it can impose - such as the withdrawal of accreditation.’ Who says which journalist is to be nominated? I will not dwell on this, save to say that the procedure will smack of a licensing system - something the media have justifiably set their face against ever since 1694. Judges cannot be censors.