Transparency in the family courts: ‘more speech, not enforced silence’

The controversial relationship between the media and the family courts and the Court of Protection was at the heart of Sir James Munby P's speech at the Society of Editors' Annual Conference this week, where he spoke strongly about the pressing need for greater transparency in the family courts and the Court of Protection.

Speaking of the public interest at the heart of family proceedings, he said:

"The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are matters of public interest which can and should be discussed publicly. Many of the issues litigated in the family justice system require open and public debate in the media. It is important in a free society that parents who feel aggrieved at their experiences of the family justice system should be able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system. And the same goes, of course, for criticism of local authorities and others."

He spoke of the ‘inevitable fallibility of human justice', putting forward the prevention of miscarriages of justice as another argument in favour of open justice:

"We must have the humility to recognise - and to acknowledge - that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice."

A further key point was visibility and the promotion of public confidence in the courts:

"It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public - or at least in a manner which enables its workings to be properly scrutinised - so that the judges and other participants in the process remain visible and amenable to comment and criticism."

Sir James Munby P also spoke of the freedom of the press to report, arguing that the family court judge should have no editorial control over the manner in which the media reports information:

"If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language. ...

As the Strasbourg court has repeatedly said, ‘journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.'"

Referencing back to the 1927 case of Whitney v California, he quoted Brandeis J, who said:

"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

The final version of the Practice Guidance ‘Transparency in the Family Courts and the Court of Protection - Publication of Judgments' will be introduced later this year. The President called for consultation on how the media might access documents used in court, and how the rules governing the family court and the Court of Protection might be revised and aligned to achieve greater transparency.