Opening up the family courts - what happened to children's rights?

The principle of open justice underlies public accessibility to courts and accountability of decision making through publicity and freedom of information. This is modified in family proceedings, especially where children are involved and we shy away from the idea of 'trial as a public spectacle'. In the leading early 20th century case upholding the principle even in matrimonial disputes, matters affecting children were excepted as ?truly private affairs?. However, the law is now in the process of being reformed to bring family courts more into line with other types of courts in England and Wales. The consultation process that led to the changes included commitments to take the views and interests of children and young people into account. Not only do these commitments remain unmet, but the proposed changes pose a number of new challenges to children?s rights and welfare. In December 2008, the Secretary of State for Justice and Lord Chancellor, Jack Straw, announced to Parliament that court rules would be changed to allow representatives of the media to attend family court proceedings, as of right, which they had previously been unable to do. This announcement coincided with the publication of Family Justice in View: Ministry of Justice Response to Consultation. The decision on media attendance came as some surprise to observers, because it contradicted an earlier decision in June 2007 against allowing the media into any tier of family court as of right. In accordance with the revised policy in December 2008, court rules were subsequently amended, with effect from 27 April 2009, to allow journalists with press cards the right to attend family court hearings unless the court made a specific decision to exclude them. More far-reaching changes are to be included in a Bill to be introduced in the 2009-2010 Parliamentary session. This will allow the press and broadcasting media a right to publish details of the evidence given, although in anonymised form and still subject to potential veto by the court. The meaning of these changes will be explored in this article. Initially, the obvious question is: what happened between June 2007 and December 2008 to bring about this volte face? This article will argue that both the premise and the consultation process on these reforms have ignored and infringed a range of children?s rights. The background to the proposed reforms will first be explained, and the relationships between concepts of secrecy, privacy, transparency and openness. Drawing on the literature on moral and legal rights to privacy leads to a question as to whether children are or should be accorded a different level of privacy rights than adults. The development of the law that protects privacy in family courts will be set out, followed by the effects of the changes. Analysing the reform process, and the particular nature of cases heard in family courts, it is concluded that children?s rights have been overridden by adult interests