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
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
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
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
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