Open court principle and family courts appeals
In family proceedings some appeals (according to the level of court decision-maker) go either to the Court of Appeal (under Civil Procedure Rules 1998 (CPR 1998) Pt 52) or to a High Court judge (mostly) in the Family Court (Family Procedure Rules 2010 (FPR 2010) Pt 30). The level of judge an appeal goes to depends on a ‘routes of appeal’ table (not always easy to understand) in the Practice Direction (PD30A) to FPR 2010 Pt 30.
Appeals in the Court of Appeal are generally in public, those in the Family Court have been treated as subject to the rule that family proceedings are in private (FPR 2010 r 27.10); but since the new appeals system was set up on 14 April 2018 there has been a sporadic debate amongst judges and family lawyers as to whether appeals in family courts should be heard in private or in public.
From 10 December 2018 the debate is not finally resolved; but at least it has been put beyond doubt that a FPR 2010 Pt 30 family proceedings appellate judge (who will normally be a High Court judge) can order that an appeal hearing, or part of it, is to be ‘in public’. A new FPR 2010 rule, r 30.12A is added to FPR 2010 Pt 30. This new rule does not say whether in future open court principles are to be preferred; but it puts beyond doubt the appellate judge’s powers to consider appeals in open the court.
The new r 30.12A allows the appellate court to order that part or all of ‘the hearing of the appeal to be in public’ (r 30.12A(2)(a) and (b)). The same rule enables the judge to exclude ‘any person or class of persons from attending a public hearing’ (r 30.12A(c)) and to restrict publications of names of children parties and others. The rule does not say who asks for the hearing to be public; but the judge plainly has the power on his or her initiative to open an appeal hearing to the public.
Common law: hearings in private
Nothing is said in the new rule as to how the new public hearing powers are to be operated by the appeal judges. The general rule is that all hearings must be in open court. That is a very old common law principle (see eg Scott & Anor v Scott  UKHL 2,  AC 417and eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618).
Beyond this, the common law sets out limited circumstances where the general open court rule can be overridden and a hearing be dealt with in private. These exceptions are fully summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3). Rule 39.2(3) is reproduced for certain family (ie divorce) proceedings in FPR 2010 r 7.16(3). Each of these three provisions reproduces the common law exceptions to the open justice principle (ie where cases should be heard in private); though they can most easily be seen in r 39.2 which – after recording that ‘the general rule is that a hearing is to be in public’ (r 39.2(1)) – then goes on to say where an civil case may be in private:
(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;… or
(g) the court considers this to be necessary, in the interests of justice.
Of that list (a), (c) and (d) would have been recognised by the Law Lords in Scott; and with the First World War just over the horizon, they would have recognised (b) very soon.
Rule 39.2(3) (c) and (d) would cover most family hearings today. Children cases would remain in private, save perhaps were a public body was being criticised. Many family money cases might be private where publicity might damage confidentiality. Family proceedings appeal judges could deal with Pt 30 appeals, perhaps, with the r 39.2(3) list in mind, and as their starting point for a decision on whether to open up to the public their appeal court.