Behind closed doors
The Family Court is certainly in the news this week, with reports of Rebecca Minnock the ‘runaway mother’ making the headlines. But is this a one off or an indicator of something more prevalent?
Figures published this week by CAFCASS (Children and Family Court Advisory and Support Service) have shown that a total of 2880 new private law cases were received by them in May 2015. That is an increase of 34% on the levels 12 months ago. The full statistics are here.
It follows fast on the heels of recent survey conducted by Dr Maebh Harding from the University of Warwick and Dr Annika Newnham from the University of Reading funded by the Nuffield Foundation. They looked specifically at Section 8 Applications in private law cases. Their findings are summarised as follows:
there was no indication of gender bias in contested cases about where the child should live
contact was actively promoted as possible even in cases of proven domestic violence, welfare concerns or strong opposition from older children
a sizeable minority of private child care disputes involve non-parents such as grandparents or other relatives who were caring for the children
The authors said that, “There is a clear need for court adjudication in private child law cases and the vast majority of the cases examined could not have been successfully diverted to mediation. Only a small minority of our case files featured implacably hostile parents and repeated returns to court to argue the same points of contention. Instead, there were real issues to be decided, and the court’s’ pragmatic problem-solving approach included a realistic recognition that it could take time to find the best solutions for these families and leave them in a place where they could deal with future problems.”
So it seems court is still the forum that is going to be used for some time to come – but is it a private solution in private law cases?
IN THE MATTER OF C (A CHILD) EWCA Civ 500
In this very recent case, the mother appealed a decision not to publish a judgment. McFarlane J gave the lead judgment in the Court of Appeal. The case concerned a boy who by the time of the Court of Appeal decision, was 14 years old, but had been the subject of extensive litigation between his parents since he was 4 years of age. Previously under a shared arrangement the boy spent half his time with each parent, but latterly he was expressing clear wishes not to spend any further time with his father.
In what must have been a difficult task, the CAFCASS officer had been appointed Guardian for the boy. They had tried to promote a pattern of contact to maintain the boy’s relationship with his father. The final hearing judge maintained a shared care arrangement but with flexibility built in for the actual time the boy spent with his father.
However, the arrangements themselves were not the feature of the appeal, but the issue of whether the judgement could be published.
Publish or be damned
The mother wanted the original judgment published anonymously. His Honour Judge Greene, the final hearing Judge, indicated a willingness to contemplate publication if there was no opposition from the father but went on to indicate that if the father did object, then the question of publication would be consdiered on its merits. The father did object, unbeknown to the mother who did not then make any submissions of her own. HHJ Greene refused publication. On discovery, the mother filed her submissions for publication which HHJ Greene considered. As reported, the main points of his decision are:
“This is not a judgment which comes within paragraphs 16 or 18 of the President’s Guidance dated 16 January 2014 and is therefore not a judgment in respect of which publication must ordinarily be allowed.
In exercising the Court’s discretion under paragraphs 15(ii) and 18 the strong opposition of the Applicant father has been taken into account together with the likelihood of identification despite anonymisation. There are no factors that would make publication in the public interest and the existence of numerous earlier judgments over a number of years that would not be published alongside this judgment may result in an incomplete and misleading impression.”
The mother appealed. The Court of Appeal in doing so, went through the Practice Guidance issued on 16 January 2014 by President of the Family Division, Sir James Munby. The overall ethos of the provisions is for there to be a greater degree of knowledge in the public domain of the work of the Family Court and the reasons given by judges for making decisions about private family life and/or about the intervention of the State in a family’s life than has hitherto been the case. In that context there are 2 categories of decision:
A case which has a default position of publication unless some other factor is established or
(per paragraphs 18 & 19 of the Guidance) “(18). In all other cases, the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given. and (19). In deciding whether and if so when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings”
In C, the second category applied. Cases which fall into the second category are expressly within the discretion of the Judge. It amounts to a case management decision by the Judge in the case. McFarlane J also commented that the Practice Guidance is “no more and no less than ‘Practice Guidance’. It is not law, it is not even a Practice Direction”.
The grounds for appeal
The mother sought to appeal on 5 grounds:
- a. The Judge failed to consider, and balance, the parties’ ECHR rights
- b. The Judge took into account irrelevant factors
- c. The Judge failed to consider the public interest in open justice
- d. The Judge wrongly concluded that the judgment did not contain matters that could be of public interest
- e. The judgment shows that the Guidance … would benefit from appellate interpretation, which is a compelling reason why the appeal should be heard.
In his Judgment, McFarlane considers each in great detail and in light of the Practice Guidance. The comments are very useful, and merit reading (paragraphs 26 – 40) – here.
In short, all 5 grounds for appeal were ultimately dismissed. It was in the discretion of the final hearing Judge, and one ‘thoroughly steeped in the case’. It was a ‘paragraph 18’ case, and the Judge did not err on matters of principle and was not plainly wrong in law to withhold from publishing the decision.
In a somewhat scathing assessment of submissions made on the the mother’s behalf on ‘public interest’ McFarlane J said, “it is not a “failure” on the part of the court, it is a total failure on the part of these two parents, each of whom are said by the judge to “detest” each other, to be adult enough to put their own relationship to one side so that their much loved boy can experience a happy, ordinary and straightforward relationship with each of them. It is not, in my view, an example of any failure on the part of the family justice system”
Where does that leave publicity in the family court?
On a case by case basis! The President’s Guidance is just that, guidance. Whilst the direction of travel is towards greater transparency in the administration of justice in the family courts it does not necessarily follow that where children cases are concerned the whole world is going to find out what has happened in each case. It is the discretion of the final hearing Judge and a case management function within each case before them. But, clearly the impetus is one that where a case is NOT a ‘paragraph 18’ case, then the expectation is that the judgement will be published.
If you would like to know where you stand or whether you are likely to face publicity in the family courts, please call Paradigm Family Law for advice. Our specialist lawyers are here to help. Call us on 0845 6020422 or email [email protected] and ask about our fixed fees and for a free initial consultation.