Monday, 28 September 2015

Open or closed?

Transparency or confidentiality?

All too often we hear people talk about human rights as though they are clear principles and requirements which will take you to a logical conclusion about a particular issue.

Of course, nothing could be further from the truth. Yes, there are a variety of human rights – often spelled out in conventions or legislation – which set out principles, but often in practice, there is a conflict between particular human rights.

One simple example, which we see played out every day in the media, is the conflict between the right to privacy and a public right to know. The media will attempt to justify an intrusion into an individual’s right to privacy by arguing that publication is in the public interest. Actually, too often, it seems more to be justified on the basis of the prurient interest of the public – who doesn’t like a bit of gossip? – than in the public interest itself.

It was a debate that was partly played out in the Leveson Inquiry, as the media sought to justify all sorts of hacking and abuse of the right to privacy in the public interest. Incidentally, I don’t think we have yet heard the last about the extent of hacking over the last twenty years.
There has been a lengthy on-going debate about transparency and confidentiality in the courts that deal with family matters – divorce, adoption, care proceedings for children, protection proceedings for vulnerable adults.

In some ways, life is slightly easier since the establishment in 2014 of a single Family Court for nearly all family proceedings to replace proceedings which had formerly taken place in magistrates’ courts, county courts and the High Court.

There are rules concerning the disclosure of information from the Family Courts. They were last substantially updated in 2010. These allow the disclosure of information in particular circumstances to specified individuals, for example lawyers, social workers or other parties in the proceedings. The court itself can allow wider disclosure. But, beware, as disclosure outside these rules is likely to lead to a heavy fine or even imprisonment for the guilty.

Since 2009, accredited representatives of the media – but not the general public – have been allowed to attend court for some, but not all, proceedings in the Family Court. Nor are they allowed to identify children publicly. Further, since last year, new guidance has applied to the publication of judgements.

The current provisions have been criticised by the media, some MPs and some campaigning organisations. They suggest that confidentiality rules have prevented them from highlighting perceived injustices, especially in some care proceedings and adoption cases. Fathers’ rights groups claim that the rules just adds to the perception of court bias against fathers. However, too often the words secrecy and privacy are wrongly transposed.

In August 2014, the President of the Family Division published a consultation paper Transparency – The Next Steps. The consultation is still open. If you have any views on these issues, especially if they are informed by personal experience, it would be a good time to make them known.

You can find more information about the recent history about transparency and confidentiality in the Family Court:

Confidentiality and openness in the family courts: current rules and history of their reform

Transparency – the Next Steps