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Family courts: privacy not secrecy

Victoria Jolliffe, a barrister at 5RB, provides a brief overview of the changes to reporting, disclosure and media access to the family courts announced by the MoJ in December 2008

image of victoria jolliffe, barrister, 5RB

Victoria Jolliffe, Barrister, 5RB

The “veil of secrecy” around family proceedings is to be lifted following new measures announced in Parliament last week. The Justice Secretary’s proposals contained in the paper Family Justice in View, have the worthy if ambitious aim of building “a transparent, accountable family justice system which inspires the confidence of the people it serves, while continuing to protect the privacy of the parties and children involved”. The new measures do more than pay mere lip-service to open justice. In a reversal of the current regime, the starting position will be that journalists can attend family proceedings in all courts, with the court retaining a limited discretion to exclude the media in the interests of children or for the safety and protection of parties and witnesses. A pilot scheme will see the introduction of anonymised judgments in family proceedings being made available online with a view to making this standard practice. In addition, and particularly welcome to those lawyers who regularly grapple with the ill-fitting jigsaw of various statutes governing the reporting of family proceedings – described in the report as not “particularly comprehensible” - is the intention to introduce a consistent set of reporting restrictions across the board.

The rules on disclosure of confidential information which severely limited the circumstances in which a party could discuss his or her case with a third party have also been relaxed. By shifting the focus away from the nature of the information itself to the purpose of the disclosure, parties and legal representatives will be able to disclose information for the purpose of advice and support, for mediation, the investigation of a complaint or, where the information is in an anonymised format, for training and research. The person receiving the information may disclose it only with the consent of the party involved unless the information is anonymised and the purpose of the onward disclosure is for training and research. The prohibition on the disclosure of confidential information to the media or the public at large without the express permission of the court however, remains in place.

A further important change is the reversal of the decision in Clayton v Clayton [2006] EWCA Civ 878; [2006] Fam 83; [2006] 3 WLR 599 which permitted the identification of children involved in proceedings in which any power under the Children Act 1989 or the Adoption and Children Act 2002 could be exercised, once those proceedings were concluded. The new law will introduce an automatic restriction on identification beyond the conclusion of the case whilst giving the court a discretionary power to lift the restriction - presumably in those rare cases where there is sufficient public interest or where the child is capable of making an informed decision on the matter.

Some of the proposed measures will be implemented by changes to the rules of court and the MoJ has rather optimistically stated that it hopes that where changes to primary legislation are required, such as the reversal of the decision in Clayton, they will be implemented by April 2009.

Victoria Jolliffe is a barrister at 5RB specialising in media law.


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