GUIDANCE: PRIVATE COURT OR OPEN COURT –
Does publication apply?
I relate a case story which unfolds tomorrow in Brighton County Court, the day the President’s publication guidance comes into effect, to test – in part – its operation. In early November a circuit judge heard an appeal from a Sussex magistrates’ court, which had made a father to a child support liability order (Child Support Act 1991 s 33). No in court knew what he owed by way of child support, even that he necessarily owed anything at all. If he failed to pay the indeterminate sum said to be owing, his house can be charged (CSA 1991 s 36) and sold, or application can be made to the justices for his committal to prison (CSA 1991 s 39A). He appealed against the making of the liability order.
Judgement was reserved and is now in writing. An alarm bell might ring as to that (see para 17 of Transparency in the Family Courts: Publication of Judgements: Practice Guidance http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf). In fact para 17 on written judgements, which refers to written judgements does not apply: child support appeal are outside the Schedule in the Guidance.
First, in relation to our soon-to-be single family court, what were the proceedings? Though relating to child support they are ‘family proceedings’ (Senior Courts Act 1981 Sch 1 para 3). They start as civil proceedings (under Magistrates Court Rules 1981, not Family Procedure Rules 2010) in the magistrates’ court. They mutate into family proceedings upon filing of the notice of appeal (Magistrates’ Courts Act 1980 s 111A); but given that they were in open court below there should be no reason why – though family proceedings – they should not be open court in Brighton. The judge wore an ordinary suit and tie, as did the advocates. Was it assumed therefore that the hearing was in private?
It matters. If not in private the father or the Child Support Agency can give the report to the press, to BAILII etc. If in private the new Guidance and Administration of Justice Act 1960 s 12 apply. How can all this be appropriate, fair even, especially in cases where people will often be acting in person? Is it right that we have a family court system which creates such uncertainty?
In para 9 of the Guidance Sir James Munby P says:
The effect of Administration of Justice Act 1960 s 12 is that it is a contempt of court to publish a judgment in a family court case involving children unless either the judgment has been delivered in public or, where delivered in private, the judge has authorised publication. In the latter case, the judge normally gives permission for the judgment to be published on condition that the published version protects the anonymity of the children and members of their family.
Indeed, as can be seen, whether the judgement was in public or not matters: if someone gets it wrong they could – in theory, at least – go to prison. If it was in private and permission is requested – it is a para 18 judgement and may be said to be one ‘involving children’ then permission is required in accordance with para 19.
If the judgement was not in public, should it be published? The fact that the judge appears to have conflated and confused the question of a magistrates’ court reviewing a child support assessment (or calculation) (s 33(3)), with them checking whether an amount is ‘payable’ (s 33(4)) is, technically, irrelevant. J can appeal. Had the judge known that the judgement was likely to be reported one wonders – I can say no more – whether the judge would have not considered the point a little more deeply. (And of course it is for this reason that Jeremy Bentham would say that reports must be published.). The s 33(3) and 33(4) point needs to be decided: many magistrates’ courts accept nowadays that the CSA must provide a clear breakdown of what is owed. This judgement if published takes us back to earlier days when – like that Sussex court – the magistrates used to say, invariably, that the CSA word was law, and not even a court of law could challenge it.
I have strayed a little from the Guidance into questions about the brave new family court world and ‘payable’ in child support law. Two critical points on publicity remain: what, in every type of case, are private proceedings? If children are involved, then Administration of Justice Act 1960 applies and the Guidance – if legal (a point for another day) – applies.