Mark Stephens: Family courts too must uphold the principle of open justice

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The Independent Online

This ruling is a hugely important victory for transparency and should be very warmly welcomed. The UK courts have a principle of open justice, of keeping the judge on trial while he is judging. That principle is absolutely critical in cases where the person is unable to represent themselves – as is the case at the Court of Protection.

One of the problems for the English courts has always been their eagerness to close their doors to public scrutiny in relation to family matters. While there are occasions when a court needs to be closed, there are many more occasions where they need to be open.

The first day that the family courts were opened to journalists, a reporter went into a court in Norwich and saw a child being taken away from its mother. But in the process of doing that, he heard an expert witness for the local authority change his mind no fewer than six times. The only person there who could bear testimony to what had occurred – and the injustice that this mother had suffered – was the journalist, as there was nobody else in the public gallery.

In cases handled by the Court of Protection, where there sometimes isn't even a mother fighting for the child, it's even more important that the activities of local authorities are scrutinised to ensure that court proceedings are properly conducted, and that people can have faith in them.

The higher echelons of the judiciary have been deeply troubled by some of the things going on in the courts behind closed doors, because it has led to an erosion in public confidence. As a practising lawyer I can say that this erosion is largely misplaced, but it is absolutely essential that this is demonstrably shown so that there is no doubt. There has to be some pressing need for privacy or secrecy before the courts are able to shut the door.

This is also the first time that British courts have recognised developments at the European Court of Human Rights in Strasbourg, giving force to the right of journalists and others to receive information. Until now, the right to freedom of expression has been seen essentially as a right to impart information – now, the right to receive information has been equally recognised.



The writer is a partner with Finers Stephens Innocent and a specialist in media law.

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