Transparency vs. Privacy: the Family Law Courts

I appeared on BBC Stoke today in relation to a judgment released by Sir James Munby, President of the Family Division on 5 September 2013, in a case where a six hour old baby was removed by the Local Authority from the parents’ care; and where previously the baby’s father was given a suspended six week prison sentence by a family law Judge for his refusal to cooperate in removing a video that he had taken from internet sites.

This family law case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system. The case also raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media.

In actual fact, some ten years ago, the same Judge stated in a case Re B:

“We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system.  This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.”

It is vital therefore that public confidence in the family justice system is maintained and restored.  Family lawyers’ reaction to complaints of “secret justice” tends to be that this is unfair, that it confuses the system which is private with one which is secret.

It is important, in a free society, however that parents who feel aggrieved at their experiences of the family justice system should be able to express their views publically.  It is not the role of the judge, in my view, to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish.

It has to be recognised, of course, that comment and criticism may be ill-informed and based on misunderstanding or misrepresentation of facts.  However, as in this instant case, the judge said that that is not in itself a justification for restraining the father from expressing his view or publishing information.

It has to be recognised that the internet allows anyone to publish whatever they wish to the entire world; and so there is very little editorial control.  Once that information is placed on the internet it can remain there indefinitely and so far as the family law is attempting to control that, it also has to be recognised that internet providers are often located outside of this jurisdiction of England & Wales.

So there is the balance between transparency and privacy.  One is the right of the public to know, the need for the public to be confronted with, what is being done in its name and nowhere is this more necessary than in relation to care and adoption cases.  Such cases, by definition, involve interference, intrusion, by the State, by Local Authorities and by the court into family life.  In this context the arguments in favour of publicity – favour of openness, public scrutiny and public accountability – are particularly compelling.

There is a very powerful argument that the balance between the public interest in discussing the working of the family court system and the personal privacy and welfare interests of the child is best and most proportionally struck by restraining the naming of the child while not restraining the publication of information.

We strive to avoid miscarriages of justice, but human justice is inevitably fallible.  The role of a specialist family lawyer is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented.  That public debate and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

James Maguire & Co is a specialist firm of Family Law and Divorce Law solicitors based in Wilmslow, Cheshire. We offer legal advice to parties going through a divorce including the financial issues which flow from this and children matters including child maintenance.  We can also advise on Schedule1 Children Act 1989 applications.

We advise family law clients in the Wilmslow area and also to the surrounding areas of Alderley Edge, Bramhall, Hale, Altrincham, Manchester and the North West. We are also able to act for clients nationally and internationally subject to the jurisdiction of England and Wales. For advice please contact James Maguire by telephone +44 (0) 1625 529456 or by email james.maguire@family-law