Lord Justice Wall found it unacceptable that conscientious judges and magistrates up and down the country, doing their best, with inadequate resources and under heavy pressure of work to make difficult decisions in the best interests of children, should be accused of administering "secret" justice. He reminded his audience that it was Parliament, not the courts, which imposed the restrictions contained in section 97 of the Children Act 1989 and section 12 of the Administration of Justice Act. The judicial task was to interpret and apply those statutes, and that is what the judiciary had conscientiously done.
Lord Justice Wall also pointed out that in the Court of Appeal, where he sits, everything is in open court, and since the decision in Pelling v Bruce-Williams [2004] 2 FLR 823 the court’s practice has been not to impose reporting restrictions in children’s cases unless the parties specifically request it, and provide good reasons for it. He also pointed out that in the recent case of Harb v King Fahd Bin Abul Aziz [2005] 2 FLR 1108, the Court of Appeal refused the King’s request for Mrs. Harb’s application for permission to appeal to be heard in camera, and directed a hearing in open court.
Lord Justice Wall was in favour of giving the media – and in practice that meant the Press - access to family proceedings, provided that there were clear ground rules about what they can and cannot report and the extent to which, if at all, they are to be at liberty when reporting the proceedings, to identify the parties, and, in particular, the children concerned.
However, unlike the Constitutional Affairs Select Committee, in its two reports on Family Justice – the operation of the family courts, Lord Justice Wall was opposed to the admission of the public into the family courts, even given the qualification which the Select Committee envisaged, namely that there would be a judicial discretion to exclude the public in certain circumstances.
Lord Justice Wall explained how and why he reached that conclusion. He described an unreported case, Re H (Children) [2005] EWCA Civ 1325, in which the Press had published a highly tendentious, and illicitly obtained account of care proceedings and the subsequent application to free the children concerned for adoption. The message from the newspaper was that local authorities, aided and abetted by the judiciary, were implementing a covert policy of social engineering by removing children from the care of their parents on the grounds that the parents concerned were not sufficiently intelligent to care for them. Nothing, of course, could be further from the truth, as an objective and fair minded reading of the judicial judgments in question made clear. He explained that cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts and the lack of knowledge about what happened in them, easily led to the accusation of "secret justice". Moreover, judges communicated in carefully reasoned judgments, not sound-bites. Thus, even when a judgment was published, it was likely to be read in its entirety only by lawyers.
He called for all judgments in children’s cases to be given in open court, with the parties’ and the children’s identities anonymised. He also suggested that in appropriate cases, judges should also prepare short, anonymised summaries of their reasons for public distribution. However, he said that what was manifestly unacceptable was the unauthorised and selective leakage of one party’s case, or selective and tendentious reporting in breach of the rules relating to the confidentiality of the proceedings. This, in his experience, inevitably led to unbalanced mis-reporting of the difficult and sensitive issues with which the courts had to grapple.
In his judgment the best way to tackle the problem was by greater openness in the decision-making process. He said that the public needed to be informed and to be fully and properly informed. There was, however, as the late Lord Donaldson memorably remarked a line to be drawn between the public interest and the public’s curiosity. It was for this reason that he was opposed to allowing members of the public into family proceedings. Should your neighbours or perhaps your former lovers be allowed to come and listen to your disputes with your new partner or other intimate issues? In cases involving domestic violence, should the opportunity be given for the victim to be intimidated by the presence of the perpetrator’s friends who may well be criminals? In a case in which criminal conduct such as drug dealing is involved, should those engaged in the activity but unconnected with the proceedings be entitled to be present?
Lord Justice Wall posed the question: what about care or private law proceedings involving a particular family with school aged children living on a particular estate, or in a particular village, perhaps raising allegations that one of the parents has sexually abused or otherwise seriously harmed a child in the family? Should residents on the estate or in the village be allowed in to listen? It was, in his view, idle to suppose that such people would not talk about the case when they get home. And if they told their children, as they were likely to, how were those children going to be prevented from repeating (and in all probability misrepresenting) salacious evidence to their peers, leaving aside the possibilities of using the material to bully or torment other children in the family concerned, or their friends?
Lord Justice Wall said that what mattered in the reporting of family proceedings was not the identity of the litigants, but what the case was about. If a family judge was hearing care proceedings, the circumstances in which care orders were made or refused, the evidence required for such orders, the quality and nature of that evidence and the manner in which it was investigated and analysed – these were what mattered, not that the child in questions happened to be the son or daughter of a particular person. If the press can report the issues and the process it did not seem to me to matter that they are unable to identify the parties.
Lord Justice Wall said that the recent radio programmes on the work of the Inner London Family Proceedings Court sitting at Wells Street provided a good example of this. It was not difficult to engage with the issues in the case – for example the problems posed by an alcoholic or drug abusing parent, or a parent refusing without good reason to promote contact, and so on.
Press reporting must, in Lord Justice Wall’s view, be responsible. He saw that as an issue which the family judiciary needed to discuss with the press, so that a modus vivendi was achieved. The sensationalism of which the judiciary frequently complained seemed to him at least in part to derive from the absence of full and proper information.
Lord Justice Wall said that it was of the essence of a free press that the judiciary could not dictate to the media what it should and should not report. He accepted the point that it was not a satisfactory solution to the problem for the judges to decide which of their cases would be published or otherwise placed in the public domain. The Press must be free to report what they think appropriate to report, provided always that it is accurate. If the judiciary wished to minimise tendentious, inaccurate or sensationalist reporting, it must meet the press half way and ensure that when it wished an issue to be reported, it was made available to the press in a way in which the press could properly use it.
Lord Justice Wall said that judges communicate through judgments, not sound-bites. But judges cannot reasonable expect journalists or other members of the public to read a lengthy judgment, unless it happens to relate specifically to the affairs of the member of the public concerned. If you hand a 100 paragraph judgment down at 10.30 am, you cannot reasonably expect a journalist who has to have something on the wires by 11.00 to have read it, absorbed it and made a précis of it in 30 minutes.
When letting the press into the family courts, judges must accommodate the press, and the press must accommodate the judges. There needed to be a series of firm ground rules, and a dialogue.
Whether or not the press attended the family courts was not the issue. The important point was that the process would be open: the work of the family courts could be scrutinised and subjected to informed debate and criticism. It was ignorance of what went on in the family courts which fuelled the canard of secret justice.
Lord Justice Wall was therefore persuaded that the time has come to open up the family courts to the Press. In addition, judgments should routinely be given in open court in anonymised form. Judges should prepare and use press releases in controversial cases, so that the public could understand the reasons for the decisions they had reached. There should be an ongoing dialogue with the press and the media generally about family justice and how it was administered. The judiciary and the practitioners had nothing to fear from public scrutiny: indeed, they should welcome it. It was in everybody’s interests that the work of the family justice system should be transparent, and fully understood. The only way that can be achieved is by making it public. And making it public meant, in practice, giving the press access to it.
Full speech (PDF 86kb)
Please note that speeches published on this website reflect the individual judicial office-holder's personal views, unless otherwise stated. If you have any queries please contact the Judicial Communications Office.