Former President of the Family Court calls for greater transparency

Posted on: March 27, 2020 by Claire Meadows

The former President of the Family Court has called for greater transparency in the family justice system and the repeal of laws banning the media from reporting information relating to family hearings.

Sir James Munby, immediate past president of the Family Division, said that there was an urgent need to open up the family court to greater scrutiny and that Section 12 of the Administration of Justice Act 1960 needed to be urgently repealed in order for a better balance to be struck between transparency and anonymity in the family courts system. At present, s.12 prevents both parents and journalists from reporting on court proceedings.

He said: “I am completely convinced that we need transparency and more transparency. I have been involved for 30 years now – first as a barrister and then as a judge. My view that we need more transparency has become only the firmer as years have passed and my fundamental approach has always been that the lack of transparency, the secrecy, the privacy […]is very detrimental to the standing of the family justice system.

“It breeds discontent, it breeds misunderstanding and it breeds deep cynicism and scepticism. We have got to change that. I have always believed that we can do that without prejudicing the very important interests of children and their parents and the wider family.”

Munby, who stepped down as President of the Family Division in 2018, said that s.12 of the Administration of Justice Act was out of date and needed to be repealed.

He said: “Section 12 has got to go. It does not protect the right things and it stifles discussion and debate. We want a much more focused system which, in effect, sets up the correct balance between transparency and anonymity.”

Munby was speaking as part of a webinar to mark the publication of former family court judge HH Judge Clifford Bellamy’s book ‘The “Secret” Family Court: Fact or Fiction?’ The Society of Editors was consulted by Judge Bellamy when writing the book.

Sir Andrew McFarlane, sitting president of the Family Division, is currently consulting on the arrangements which regulate access to and reporting of information on proceedings in the Family Court.

Judge Bellamy agreed with Sir James that s.12 was in need of repeal or amendment.

He added: “Section 12 of the Administration of Justice Act 1960 is a very old act which was enacted in a different age and a different context and it was not designed for the use of which it is being put today. It is exceptionally difficult to understand.”

On the subject of whether the media was justified in its frustrations with the current restrictions imposed by s.12 on what it can and cannot report in the family division, Judge Bellamy said that he had every sympathy with the difficulties that journalists faced but he did question whether certain sections of the media could be trusted with confidential family court material 

He said: “Undoubtedly, I have every sympathy for the difficulties that the media face. I am sympathetic for the media, but I’m still not yet 100% persuaded that all journalists can be trusted to deal with the sensitive material that comes out of the family court.”

Bellamy said that the family division in England and Wales should follow the example of Nova Scotia in the establishment of a media liaison committee to provide a forum in which journalists and the judiciary could discuss issues of mutual concern.

He said: “In 2011 the then-President Sir Nicholas Wall set up a committee which led to the publication of a document explaining the law relating to transparency issues but as far as I am aware the committee that he set up is defunct and has been for several years. If we’re going to make any progress in understanding each other and working with each other then I think that we desperately need to have our own media liaison committee.”

In relation to the ongoing covid-19 crisis and the uncertainty around access to hearings, Munby said that the current circumstances must not result in the right of attendance going backwards in the courts system.

He said: “I have no doubt that one of the long-term consequences of the present dangerous and difficult times we live in is going to be a much bigger use of remote hearings and IT in the courts generally. Once people have got used to it, which they will over the next weeks and months, they will realise that it has many, many advantages. That is a reality that I think we have to face. In many respects that is a good reality that we should not be concerned about.

“On the particular point of journalistic and public access to the court, that raises very difficult issues, largely technological, but those issues have got to be grasped and solved. It would be wholly wrong to allow a move to electronic hearings and to have the unintended, or even worse, intended consequence, of closing the public gallery or closing the journalists bench. Technology must be used in future to allow proper public and journalistic access to what is going on in the courts generally. We must keep to that transparency agenda.”