Open Justice at Finchley Central

 

The sign on the door of court number 1 said "COURT IN CHAMBERS - NO ENTRY - QUIET PLEASE" when I arrived at 09.55 this morning.

In the waiting area were Ian Mackay and the father for whom he was acting as a McKenzie Friend, and we were soon joined by FNF Vice-Chairman Colin Hale and a couple of London Branch stalwarts who had taken time out to witness the historic events at Barnet County Court.

At just after 10 o'clock an usher appeared and replaced the sign with one which said "COURT SITTING - QUIET PLEASE".

FNF always tells members that they can never quite predict what will happen at a court hearing, so it came as no surprise when the usher turned to the father and said "two minutes in chambers, please", though the question of whether his McKenzie Friend would be allowed in never arose - both disappeared inside unhindered.

Seeing is believing, as they say, so inevitably the tension began to mount. Would it really happen? Was there, as there so often is, some problem or little-known rule of court that was going to thwart us?

Not this time! True to her word, the usher returned and invited us in. The only legally qualified person in the room was Circuit Judge Peter Latham himself as (for reasons which will become apparent) the other side had failed to turn up, though they had been there the previous day and on many - too many - earlier occasions.

"For reasons of anonymity" the children who were the subject of the case would be referred to on the day as 'B' (for boy) and 'G' (for girl). No problem there - the father knew who they were. What next?

The judge explained that the parties were a wife (who was legally represented) and a husband (who was unrepresented). The husband was assisted by a McKenzie Friend "as it is called" to give him support.

"I would like to express my gratitude to that gentleman" said the judge of this particular McKenzie, "for attending on so many adjourned occasions, and for his assistance to the court". Praise indeed - Lord Woolf could learn a thing or two from his juniors, it would seem.

Judge Latham continued. The husband had requested a judgement in open court, he told us, as he was concerned about public interest in open justice and wanted to know how much, if any, of the details of what had transpired in two and a half years of litigation he should be free to tell the children, and at what stage.

"This has all been focused in a new light recently as a result of Parliament passing the Human Rights Act 1998", his honour intoned, referring to its official commencement on 2 October this year. "The courts have already started, expressly, to refer to the new rights...traditionally, in family law cases in England and Wales, judgements in relation to children in Children Act proceedings have been given in private..."

A few exceptions were listed, as when cases were adjourned into open court in order to make an anonymous judgement - one which did not identify the children - on a point of principle. So what had changed?

"Article 6 of the European Convention on Human Rights expresses the right to a fair trial in clause 1...there is also an important need to bear in mind Article 8, clause 1". Judge Latham summarised the Articles for the benefit of those in attendance (and, no doubt, posterity), and went on to note the following longstanding provisions of English law:

Children and Young Persons Act 1933 s 39: forbids publication of the name, address, or pictures of a child who is the subject of proceedings, or particulars 'calculated to identify' him/her (maximum penalty £500 fine)

Administration of Justice Act 1960 s 12: forbids publication of details of proceedings held in private concerning wardship, adoption, custody, access etc (any breach being a contempt of court) other than the substance of a judgement

Children Act 1989 s 97(2) as amended by the Access to Justice Act 1999: extends prohibition to cover all courts (some of them had been forgotten)

Preserving the anonymity of the family and preventing the identification of the children was all that was required in the public interest, so we can report that the following orders were made:

1. No newspaper report to identify the children, directly or indirectly

2. Publication of any part of the transcript or judgement of the previous day's proceedings would be contempt of court, and this applied "to the whole world" (as opposed to just newspapers), though the parties themselves may consult their legal advisers with transcripts

3. Publication in any form of material leading to the identification of the children "is prohibited"

"I hope that this judgement has been carefully phrased" said the learned judge, who went on to tell us that part of his judgement was based on common law principles arising from "parens patrii".

Amen to that - and how European to use Latin!

[The last sentence is probably unfair to Judge Latham, but this is the first time I have ever found nothing critical to say about a family law professional and it was too good to let pass]

It was a simultaneously courageous and sensitive judgement. As his honour said, neither child was represented and "I have to try to protect their interests as well as those of the husband and wife". The only slight disappointment was that neither child was to be shown the previous day's judgement until they reached the age of 18, though this could hardly be said to be unreasonable and permission was even granted to the father to apply to a higher court on this issue if he wanted to press it.

I will omit the details of contact, residence, prohibited steps and specific issues orders as both parties appear to have been happy with them - it's a long story, and none of my business. But the final consent order - that the mother's solicitor should pay part of the costs as 'wasted costs' - will doubtless give everybody a little chuckle, and explains why the solicitor was not in court on the day.

The father was asked if he had anything to say and requested a name by which the case could be known - it will be 're B and G' - boy and girl.

So we filed out of court one by one, six FNF members who had been present when open justice arrived at Finchley Central. It may be that it was just passing through - as the judge said, "developing law is likely to change" and it is for the Court of Appeal to clarify the limitations and ground rules, presumably depending on the circumstances of any given case.

So the last man to leave the court - Ian Mackay, McKenzie's Best Friend - changed the sign back as he left, ready for the next case.

"COURT IN CHAMBERS - NO ENTRY - QUIET PLEASE" it reads again.

But it doesn't have to be that way.

 

Richard Gregory
31 March 2000