John Hemming's Web Log John's Reference Website
Wednesday, November 29, 2006
  Family Courts - how secret are they?
What has happened recently is that there have been two judgements in Clayton v Clayton and in NCC v Webster that have both reinterpreted and clarified the situation in terms of proceedings in the Family Courts.

I would emphasise that I am not legally qualified and if people wish to check out specific details then they should check them with people who are legally qualified.

Firstly, however, any proceedings held in private before a judge remain confidential. That includes any of the papers and reports that are part of those proceedings and prepared for those proceedings. This includes the judgement whether it is anonymised or not.

Secondly, whilst proceedings continue noone can publish the identity of a child or material intended or likely to identify a child in such proceedings.

Thirdly, however, when the proceedings have come to an end there is no statutory protection of the identity of the child. It is, therefore, at that point open to people to publish details. Quoting from Mumby's judgement:

"On the other hand, section 12 does not of itself prohibit publication of the fact that a child is the subject of proceedings under the Children Act 1989; of the dates, times and places of past or future hearings; of the nature of the dispute in the proceedings; of anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; or of the text or summary of any order made in such proceedings. Importantly, it is also to be noted that section 12 does not prohibit the identification or publication of photographs of the child, the other parties or the witnesses, nor the identification of the party on whose behalf a witness is giving or has given evidence."
and
"The common belief (which I confess I shared) that the statutory prohibition outlasted the existence of the proceedings has now been exploded for what it always was – yet another of the many fallacies and misunderstandings which have tended to bedevil this particular area of the law. On the other hand, and as Sir Mark Potter P was at pains to point out (at para [53]), the fact that, following an end to the proceedings, the prohibition on identification under section 97 will cease to have effect does not of course mean that the provisions of section 12 of the Administration of Justice Act 1960 are diluted or otherwise affected. The limitation upon reporting information relating to the proceedings themselves under section 12 of the 1960 Act will remain."


Fourthly, however, a judge can determine that a case be held in public.

There is a shift in the law that arose from Clayton v Clayton where the statute was read in accordance with freedom of speech such that any constraints under the Children Act ended at the end of the proceedings.

Mumby's judgement arose moreso from a proper review of the law in this area rather than a reinterpretation.

In essence it means that without going to court anyone aggrieved (or indeed happy) about the outcome of a Family Court procedure can now talk about it publicly.

This does not allow a proper consideration of what professional evidence was given although the professionals can be identified.
 
Comments:
Parents are not clear about this. If social services produced court statements that were unfairly negative,unbalanced,dishonest and lied about one's competence as a parent. Then is a parent allowed to go to the press if they fear other families may be at risk from malpractice and corrupt working practice from social workers.
Is it true social workers identities are still protected and cannot be disclosed?
 
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