Public concern about the operation of family courts is particularly acute at present. Whenever examples of poor practice come to light, as they have recently through an appellate judgment concerning the unfair conduct of a fact finding hearing involving allegations of rape, questions are understandably being asked about whether or not there is more hidden beneath the curtain of privacy that we operate behind.
Sir James Munby, former President of the Family Division, recently delivered* a speech complaining that there was too little reporting and too little research around these issues, and that consequently the family court was something of a ‘black hole’. He went so far as to call for the repeal of the Administration of Justice Act 1960, s 12, the provision which protects what is said in private hearings concerning children, or which is written in the documents prepared for such cases (he doesn’t call for repeal of the separate provisions that protect the identity of the children involved in these cases which are contained in the Children Act 1989, s 97.
One of the difficulties with AJA 1960, s 12, is it’s blurred edges. Whilst Sir James’ 2004 judgment in Kent County Council v B still represents the clearest exposition of the ambit of section 12, working out what that means in practice is really quite tricky. I know this because since 2018 I have been attending private court hearings covered by section 12 in order to report under the legal blogging pilot (PD36J) and have had the educative experience of trying to work out during a live hearing what is and is not likely to be prohibited by the section, in order to work out whether I need to apply for the relaxation of section 12 at the end of the hearing. I speak from experience when I say that Sir James is right to identify that this difficulty, the never being quite sure if you are on the right or wrong side of the section 12 line, is a significant chilling factor for those trying to report family court hearings, and who know that any wrong step could amount to a contempt of court. And I say that as a lawyer with some pre-existing understanding of what section 12 theoretically means.
It doesn’t help either that often the lawyers appearing in the hearings I am attending (and the judges) are not au fait with the interlocking provisions that apply to this field (quite apart from understanding the different ambit and distinct consequences and duration of both section 12 and CA, s 97, one also has to read AJA, s 12 in conjunction with the relevant sections of the FPR and applicable practice directions to know whether a particular publication or disclosure of information would be a s12 breach at all).
However, unless and until section 12 is reformed or repealed family lawyers do need to maintain some familiarity with its provisions and operation in order to deal with those situations where a journalist or legal blogger attends court, and in order to deal with scenarios where a party or an associate of a party publishes or seeks to publish or disclose information about the case.
More information about those provisions and their operation can be found in Transparency in the Family Courts – Publicity and Privacy in Practice.
You can read Sir James’ speech in full on The Transparency Project website here.
*or tried to deliver – bad weather prevented his arrival at the destination and the speech was published but not in fact spoken.