Last week, the president of the Family Division of the High Court, Sir James Munby, made headlines when he called for greater transparency in the family courts. Munby described the ‘pressing need’ to open the courts to public scrutiny, saying that, following the end of capital punishment, ‘the powers of the family court were among the most drastic that any judge in any jurisdiction is ever empowered to make’.
Munby is right. The powers of the family courts are truly draconian. The court has a broad range of powers to break up allegedly ‘troubled’ families, often under Kafkaesque conditions. Applications can be made without families being present, judgements can be passed in secret, and injunctions placed on reporting some or all of the court’s proceedings. Munby’s remarks follow a series of judgments this year in which less senior judges in the family courts have been similarly scathing of the veil of secrecy under which they are able to function.
But while Munby’s judgement was described as a ‘landmark’ moment in the movement towards a more open family-justice system, the truth is significantly less optimistic. We know that Munby has form for peddling a rather diluted definition of ‘transparency’ in family proceedings. In July, he issued draft guidelines titled ‘Transparency in the Family Courts and Court of Protection’. These guidelines suggested that greater transparency could be achieved by introducing a presumption in favour of publicising family-court judgements, unless there existed compelling reasons not to publish. And that was about it.
The guidelines rather missed the point. They said nothing about the power of the family court to continue functioning in secret if ‘compelling’ reasons could be found. It is hardly a ringing endorsement of open justice to place the power for deciding whether a hearing goes public in the hands of the presiding judge. The guidelines said nothing about the possibility that local authorities would remain immune from scrutiny in the event that a judge decided that proceedings should be made anonymous.
In fact, we cannot rely on Munby to truly open up the family courts because the mechanism for maintaining their secrecy is found in legislation, not in common law. Judges have no power to alter statute and are loath to make any remarks that could be deemed to be attempting to do so. Munby’s comments, that judges should exercise their powers of anonymity only in the face of ‘compelling’ reasons, were roughly in line with what he had already said in his guidelines. When it comes to the family courts, the only people with real power to open them up are those with the power to change legislation: our elected representatives.