President of the Family Courts calls for more transparency in family courts
Given the need to protect the children involved in family proceedings, hearings are held in private and journalists are not allowed in. Judgments can be publicised with names kept anonymous; it is the facts of the case the legal argument and the judges’ decision and judgment that is reported. Those involved in proceedings are generally not allowed to share details with the press or publish the facts via social media. However the head of the family division, Munby J, has suggested that the rules should be relaxed in order for the public to gain confidence that the decisions the Courts are making are correct and just to those individuals involved.
These comments were made in the judgment given by Munby J in the recent case involving an enforced caesarean section on a mother who was deemed not able to make decisions about her own labour because of her mental health difficulties (In the Matter of P (A Child) [ EWHC 4048 (Fam)). The case, which concerned 2 sets of proceedings, can be explained as follows.
The mother was detained under the Mental Health because she was suffering from a mental disorder and due to give birth in the UK. The NHS applied to the Court of Protection seeking declarations that it would be in the mother’s best interests for the baby to be delivered by caesarean section. The Mother was legally represented by the Official Solicitor who did not oppose this on her behalf. The Judge decided that the mother lacked the capacity to decide herself, and authorised that the baby be delivered by caesarean section.
The Court of Protection is a private Court; that is that only the parties being the applicant, here the NHS and the respondent, here the mother, and legal representatives can attend the hearings.
The Local Authority made an application to the family court, for an Interim Care Order to be made in respect of the baby when it was born. The court granted the order deciding that the baby would be at risk of significant harm, and on this basis the child was removed from the mother’s care into foster care while care proceedings continued. The proceedings concluded in February 2013 with the Judge concluding that it was in the best interests of the child that she not return to her mother’s care, but be adopted.
These hearings were held in the private family courts.
The mother, who felt she had been subjected to caesarean section unfairly, as well as having her child removed unjustly, went to the press to tell her own story.
Essex County Council made an application to restrict publication of the details and photographs, of any of the family involved, including the mother, in the press.
Munby J considered the rights of the baby to remain anonymous against the mother’s right to report her case saying ‘the mother has an equally obvious and compelling claim to be allowed to tell her story to the world’.
Munby J granted an order prohibiting the publication of any information about the child or her carers including photographs but refused to prevent the mother from publishing her own details. In providing his reasons Munby J noted ‘the importance… of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly’.
He went on:
‘If ever there was a case in which that (the mother’s) right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out… would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.’
This case reflects the views Munby J has that family law proceedings should be more transparent and that more cases should be reported.