With what aplomb did Jack Straw throw back the cloak of secrecy over proceedings in the family court last year? How we did cheer. None louder than myself.

Straw, the ‘modernising’ man of Justice who eschewed the trappings and symbols of the historic Lord Chancellor’s role, said:

“Family courts play a crucial role in our society. It is vital that these courts command the confidence of the public. If justice in these courts is seen to be done, they will be trusted by the public.”

As part of my determination to ensure that the justice system is as open and transparent as possible – and therefore accountable to the people it serves – media organisations will for the first time be able to attend proceedings of all the family courts as of Monday (27 April 2009)

Sir Mark Potter, president of the Family Division of the High Court, said considered reporting could “do nothing but good for the system” and help dispel “myths and inaccuracies” over judgements.

It is the ‘Family courts’, with their anonymised case reports of Baby ‘P’ and child ‘A’ that are always quoted in the media as being the ultimate in secret justice, but there are layers below those cases involving child protection that are burrowed far deeper into the State’s all encompassing secrecy. The Court of Protection with its powers of life and death over citizens of the UK does not even issue anonymised case reports. Those cases are the impenetrable benthic of the judicial ocean.

There were some little provisos buried in the small print. True, media organisations were allowed to attend the hearing – but crucially reporting restrictions were not to be lifted until after further consultations. Straw had grandiosely given the media representatives a new car each – but with no access to petrol.

It was not until this April, a year later, that Straw found time to make the amendments to the primary legislation that would allow those reporters to actually do something with their new found access. Curiously, it swept past our noses in the ‘wash-up period’ when all eyes were on the forthcoming election. It was buried in the Children, Schools and Families Act 2010.

Take a close look. Not only does the media’s fancy new car have no petrol, it is chained to the back of the garage door, and the tyres have been slashed. Moreover, the Lord Chancellor stands over the immobilised vehicle swinging a wrecking ball.

I will try to explain in plain English.

There is a sharp distinction in the Family courts between reporting restrictions on cases mainly concerning children and those which do not.

So, we have ‘child proceedings’ which are covered by the common law of criminal contempt enshrined as per s.12 (1)(a) Administration of Justice Act 1960.

Without burying you in a welter of case law, this meant that the press could not report ‘substantive details’ of cases held in private but could give names of parties, witnesses, the fact that ‘a’ child was the subject of such proceedings, the nature of the dispute in such proceedings, and the orders of the Court. All this information was subject to s.97 (2)-(6) Children Act 1989 which made it a criminal offence to publish any material to the public which risked identifying the child.

‘Other’ family court proceedings were heard in private, but the press can gain admittance, and there is no general legal restriction on publishing details of the case once it is concluded.

Why was the Court of Protection so carefully shrouded? Historical and logistical reasons. For many years it amounted to one book lined room buried deep in the secure premises of the Public Trustee, to which you could only gain access by prior appointment and escorted by security staff. It took care to only invite ‘paper applications’ for hearings – few members of the legal profession had ever ventured there, expert witnesses had never been cross examined under oath; the press were ignorant of its existence. Since it mainly dealt in the financial affairs of those few members of the aristocracy who had been born without the mental ability to understand or control those parts of the family estate which had been bequeathed to them, it was a matter of supreme indifference to even those who were aware of its existence.

‘Care in the Community’ with its accompanying entitlement to benefits, and the rise of the personal injury legal profession brought many more ‘ordinary’ members of the public under its financial umbrella. People started to look askance at the secrecy as stories began to surface of ‘Grannies’ stripped of their savings by the court’s powers.

It was the Mental Capacity Act of 2005 which really shone a light into this obscure corner of the judiciary. Henceforth, the Court of Protection was to be given the power to look after the welfare of vulnerable people as well as their money. They could decide on their medical treatment.

Alarm bells sounded when it was realised that ‘medical treatment’ included food and water under certain circumstances. The infamous ‘Liverpool pathway’. Was it really possible that these anonymous ‘nominated officers’ – the name given to civil servants elevated to assist the one and only legal practitioner present in the Court of Protection, would be given the right to decide on paper whether your received food and water if you were unable to speak up for yourself?

‘Nay, nay, scaremonger’, they said. ‘We are transferring a senior judge from the Family courts to decide these things; it will all be open and transparent. Look! Here is one of our first cases, lovingly dissected by a caring judge’.

‘It won’t last’ I muttered to myself. ‘They will find a way to push it back underground’.

‘Silly Anna’, said they, ‘look, Jack Straw is going to open all the family courts to the media’.

Has he Hell!

The CHSFA repeals s.12(1)(a) Administration of Justice Act 1960 and s.97(2)-(6) Children Act 1989, and ss.11-21 and creates a general restriction on publication of information relating to Family court proceedings, whether child related or not – the new Act removes the general freedom to publish which exists under the current law.

Once in force, the Act will prohibit publication of information relating to various types of family proceedings heard in private, except for “authorised publication” of judgments or certain orders as authorised by the court, “authorised news publication” as defined in the Act, and other publications specifically permitted by the court.

A report will be an “authorised news publication” only if the following five conditions are met.

First, the information was obtained by an ‘accredited news representative in person’ by observing or listening to the proceedings – given that the hearings are not openly advertised, this greatly limits the likelihood of anyone being present in court who has the right to report on a case.

Second, the publisher of the information is the accredited news representative or a person who publishes the information with the consent of, or pursuant to, a contract with that accredited representative, or who has obtained the information from a publication of information which is itself an “authorised news publication” – hence the State will now decide via a Rules Committee what news organisations will have the privilege of being able to send which class of representatives to observe and report on Family proceedings heard in private.

Third, the information is not “identification information” relating to an individual involved in the proceedings, or “sensitive personal information relating to the proceedings”, or restricted adoption or parental order information.

Fourth, the publication is permitted by the court where it consists of the text or summary of an order in adoption or parental order proceedings or of a judgment in other family proceedings.

The fifth condition is that the publication is not ‘otherwise prohibited’ by any restriction imposed by the court.

It is said that the press are the eyes and ears of the public, but if they are privileged to be the only eyes and ears and no one else is allowed to observe and publish for themselves if they can find an audience, then the press become the arbiters of what the public shall be entitled to know, which is simply a form of censorship

The Court of Protection, the Court which will ultimately hold the right to decide whether you or your family live or die, are economically repairable or surplus to society’s requirements, just disappeared behind an impenetrable order of secrecy. Don’t blame Nu-Labour – the Con-Doms allowed it through without comment.

Don’t say I didn’t tell you it would be so.

Tagged as: child protection, contempt of court, Court of Protection, courts, english family law, family court, family law system in england and wales, Jack Straw, justice systems, law, law report, proceedings, secrecy