(2) OPEN JUSTICE AND FAMILY PROCEDURE RULES 2010
Family proceedings: how ‘private’?
This series asks to what extent do court rules say family proceedings are permitted to be heard in secret (‘private’); and to how far does the law say such proceedings should be heard in open court (like the majority of other court proceedings). Within that question, this series will look only at hearings and publication of court documents. It will refer in particular to proceedings under FLA 1996 Pt 4 (domestic abuse injunctions) as its starting point.
The series will look at the following topics:
- What does the law say about open court principles and about the powers of the court to permit publicity for court material (Part 1)?
- To what extent is what is said about open justice in Family Procedure Rules 2010 (FPR 2010) within the powers of the rule-makers as defined by Courts Act 2003 (as explained in this Part)?
- If an individual (a journalist (say), or anyone who might want to go into court: if it’s open court they don’t have to justify themselves) believes they have been wrongly excluded from court or refused permission to publish information, what can they do, and in which court.
The final topic will be considered in the next Part.
Open justice and the common law
As explained in Part 1 law is made by Parliament (statute law) and by judges at High Court, and higher, levels (the common law). Open justice is a common law principle as explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618:
 The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.
Neither form of substantive law can be changed by court rules (or by other delegated legislation) unless an Act of Parliament says so. Senior Courts Act 1981 s 51(1) provides an example. It defines the law for payment of costs in civil proceedings (including in family proceedings). The award of costs ‘shall be in the discretion of the courts’; but that is always subject to the opening words of s 51(1), namely that how a judge decides on costs is ‘Subject to the provisions of this or any other enactment and to rules of the court’. And CPR 1998 r 44.2 encapsulates the long-standing common law principle that – all other things being equal – the loser pays the successful party’s costs: costs follow the event.
As already mentioned (in Part 1) Lady hale emphasised this point in Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 when she said:  Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute…
Powers to make court rules for family proceedings
Rules for family proceedings are made by Family Procedure Rules Committee (FPRC) under Courts Act 2003 ss 75 and 76. The question then is: are there any statutory provisions in Courts Act 2003 which enables FPRC to alter substantive law, akin to those set out in SCA 1981 s 51(1)?
Courts Act 2003 ss 75 and 76 set up the FPRC and say what it powers are to be (delegates to it what Parliament permits it to do). There are to be court rules (namely Family Procedure Rules) made by the FPRC (ss 75(1) and (2)). But what do ss 75 and 76 say about altering existing law? As far as I can see, the only provisions which may be said to permit altering existing substantive law are:
75 Family Procedure Rules
(4)The power to make Family Procedure Rules includes power to make different provision for different areas, including different provision—
(a)for a specified court or description of courts, or
(b)for specified descriptions of proceedings or a specified jurisdiction.
76 Further provision about scope of Family Procedure Rules
(2)Family Procedure Rules may —
(a)modify or exclude the application of any provision of the County Courts Act 1984 (c. 28)…
(2A)Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.]
(3)Family Procedure Rules may modify the rules of evidence as they apply to family proceedings in any court within the scope of the rules.
Family Procedure Rules 2010 and the common law
Two rules in FPR 2010 impact on secrecy (privacy) of family court proceedings are those which restrict attendance at family court hearings and which are said to restrict release of documents.
The open justice principle is denied by the rules – I emphasise, by the rules – for family court hearings in the following terms:
27.10 Hearings in private
(1) Proceedings to which these rules apply will be held in private, except –
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise.
(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present.
For release to ‘any person’ (ie including to non-parties, press etc) of any document filed in family courts, FPR 2010 r 29.12(1) says:
(1) … No document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without permission.
In Appleton & Gallagher v News Group Newspapers Ltd & PA  EWHC 2689 (Fam),  2 FLR 1 Mostyn J said r 29.12(1) meant: ‘ … Further the press are not allowed any access to documents whatsoever – see FPR 29.12.’ This is not what the law says (see eg Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38 (29 July 2019) discussed most recently at ‘Release of hearings documents’).
Many readers – lawyer and non-party alike – will treat what Mostyn J says in Appleton as a statement of the law. Whether this was ever the law was always doubtful, surely? It is not what r 29.12(1) actually says. And it was not part of what Mostyn J had been asked to decide anyway (not what lawyers call part of the ratio decidendi of his decision, which he defined as: ‘ All I am being asked to decide today is whether [an] existing order, which restricts the reporting of the proceedings, should be lifted, or modified,… It is highly important that I should exercise my powers very carefully and cautiously…’. Nothing is said here about an contested decision on non-party release of documents. Mostyn J’s comment was said by the way (obiter): it does not define legal principle or add anything to the common law.
Common law and secret family proceedings
What the common law says about hearings in open court generally was summarised in Part 1. As the Guardian v Westminster and Cape Intermediate v Dring cases (both mentioned above) confirm there may well be circumstances in any type of proceedings (criminal and civil (including family)) where court materials may be released to non-parties (such as a journalist).
The rules assertion of secrecy (‘in private’) in all cases save as otherwise permitted by the rules and any blanket ‘access to documents whatsoever’ is not what the law says; and there is no evidence that I can see that such a broad denial of the open justice principle is open to the rule-makers under the powers given to them by Parliament (Courts Act 2003 ss 75 and 76). There is nothing in ss 75 or 76 about altering or modifying the common law; still less does the 2003 Act say the FPRC can reverse the common law.
Properly considered I do not believe that either FPR 2010 rr 27.10 or 29.12 (if r 29.12 says what Mostyn J says it says) represent the law; and that the exceptions to open justice summarised by CPR 1998 r 39.2(3) (set out in Part 2) and Administration of Justice Act 1960 would be more appropriate for family courts. Save where children were the subject of proceedings (or any other aspect of r 39.2(3) apply) this would require the Family Court to hear domestic abuse proceedings in open court.
And if a family court refuses to sit in public how does a person who wants to hear the case challenge the court’s refusal. I will attempt to deal with this in Part 3…
3 September 2019