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Hetty Gleave examines sensitive family proceedings and public confidence in The Times

  • May 15, 2019 test
  • By Hetty Gleave, Partner

The fine line between sensitive family proceedings and public confidence – where do we draw the line?

In January several tents were camped outside the Royal Courts of Justice, occupied by protestors campaigning against “secrecy” within in the family court jurisdiction.  Placards with messages such as “UK must stop stealing our kids!!” may sound dramatic, but they demonstrate the level of outrage at the perceived lack of transparency in family court decisions concerning children and where they will live.

This concern was echoed by a case before the President of the Family Division in February, which challenged a reporting restrictions order made in the Portsmouth Family Court last year. Unusually the restriction covered not only the ongoing court proceedings, but also restricted reporting of an earlier Court of Appeal judgment, which by then was already in the public domain. A freelance journalist successfully pursued a crowd funded appeal, which is being hailed as a victory for civil liberty.

A child’s right to be cared for by their parents, unless it is in their best interests to be separated from them, is enshrined in the UN Convention of the Rights of the Child. It is difficult to think of any decision more life changing (save perhaps loss of liberty) than one that removes a child permanently from their family so that they grow up without knowing them and lose their biological identity.

While there are undoubtedly cases where such decisions may be justified, they should only be made in the most serious cases where no other state support will rectify the underlying issues. If the act of removal is justified by the principle of protection, then surely the public should know that such decisions are based on sound evidential and legal principles. Surely to have respect for, you have to have faith in, the system?

The right of freedom of expression and the right to private and family life are both enshrined in the Human Rights Act. The justification for refusing to grant permission to report family cases is often that privacy and confidentiality in relation to family disputes must be protected and, in these circumstances, freedom of speech is ranked a less important.

While it is accepted that protecting the parties’ identity in sensitive family proceedings is important, this can be achieved by anonymising judgments, with strict sanctions in the event of breach, as currently happens in the Republic of Ireland. However, if judgements cannot be critically examined, then how do we expose errors in the administration of justice?  Sheltering behind traditionally sanctioned reporting restrictions can only cause suspicion and speculation in controversial cases and perpetuate the view that there is something to hide.

The perception of misusing power can be just as damaging to public confidence.  To maintain trust and confidence in the system it is not enough to be transparent and fair.  It is just as important to be seen to be transparent and fair.

This article was originally published in The Times and can be accessed here.

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