Open justice for a child in criminal proceedings
What legal principles connect publicity for the 17 year-old Charlie Pearce (born 3 July 2000), a double rapist and attempt murderer (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017)) and privacy for a stalking mother who, with her cohabitant (‘Mr JM’) tried to disrupt her 10 year-old daughter T’s foster placement (Re T (A Child)  EWCA Civ 1889 (23 November 2017)).
Most startlingly, a man (say) can be brought (as were T’s parents) secretly and anonymously (or as family lawyers call it, ‘in private’) before the family courts, for serious forms of ‘molestation’ (which includes a variety of abuse: see for example the recent case of the Iranian mother who changed the name of her children : B and C (Change of Names: Parental Responsibility: Evidence)  EWHC 3250 (Fam) (12 December 2017), Cobb J. Yet if that same father, or T’s mother and Mr JM are prosecuted on the same facts which justified a non-molestation order, the prosecution would be public and the names of the adults open to the press to publicise, with the child’s name anonymous.
The public are entitled to ask: are the family courts trying to keep something secret? The names of these violent parents. The criminal courts – according to general legal principle – publicises the name of all adults. Why is the ‘scourge’ of domestic violence and abuse (as Sir James Munby P has described it) to be dealt with behind closed Family Court doors; whilst Charlie Pearce, not then 18, has his behaviour and his crimes fully publicised?
R v Pearce rehearses the arguments which relate to questions of anonymity – or not – in the context of prosecution of a child (considered in more detail with law references here). The principles it sets out could apply equally to all family proceedings. There privacy, by contrast, is assumed; but privacy, it can be argued, should not – in law – rule the day (see further here).
Anonymity for Charlie Pearce?
Pearce’s was a nasty crime of ‘sheer brutality’, said the judge. Aged just 17 he went out in Leicester with a ‘concrete slab’ and clubbed down a student. Whilst she was unconscious he raped her vaginally and anally, and stole her hand-bag. He was found guilty of attempted murder and pleaded guilty to two rape and other charges. His victim survived thanks to excellent and prompt medical attention. Because Pearce was under 18 should his name be published?
In his ruling regarding anonymity Haddon-Cave J provided a text-book summary of the law in relation to open justice and explains his assessment of the law including the United Nations Convention on the Rights of the Child 1989 especially Arts 3 (best interests a primary consideration); 16 (no child subjected to arbitrary interference with privacy etc) and 40 (privacy of child suspects).
Haddon-Cave J refers specifically to the child’s ‘voice’ – a factor more family courts judges could perhaps bear in mind – as set out in Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, which he explains thus:
 The rights of a child to have a “voice” finds expression in Article 24 of the EU Charter of Fundamental Rights entitled “The Rights of a Child” (“UNCFR”). Under Article 24(1) UNCFR children have the right to such protection and care as is necessary for their wellbeing: “They may express their views freely. Such views shall be taken into consideration on the matters which concern them in accordance with their age and maturity”.
 Under Article 24(2) UNCFR, in all actions relating to children a child’s best interests must be a primary consideration. Article 24(3) states: “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.
Charlie Pearce might be entitled to his voice; but it didn’t help him at all. Haddon-Cave J said his name could be published.
Domestic abuse (‘molestation’) and the violent man
By contrast, if Charlie Pearce – say five years older – were as comparably vicious with his partner (Janet) with whom he lived, and if he were to be brought before the family courts on her application to exclude him from their flat, the press could publish nothing if – and the law is unclear on this ‘if’ – the word ‘private’ in the rules is treated as also meaning that the parties should not be named. Charlie will be brought anonymously (i.e. ‘in private’ or secretly) before the family courts for often dire forms of ‘molestation’ of his partner (Family Law Act 1996 (‘FLA 1996’) Pt 4). It would be the same if he had molested his children. And yet, if a person subject to a non-molestation order breaks it they are tried publicly in the criminal courts (FLA 1999 s 42A).
Are the family courts, it might fairly be asked, trying to keep the behaviour of the above parents and other respondents secret? And if so, why? So far as they are keeping such applications private, I believe them to be acting illegally. But I do not know of any person in Janet’s or T’s parent’s position, or of any lawyer representing her, who is willing to represent her to challenge this secrecy for violent men.
The fact is that the procedural rule – it is not law – in family proceedings since April 2011 is said to be that all proceedings covered by the rules (ie Family Procedure Rules 2010 (‘FPR 2010’)), save where otherwise ordered or the rules say something else, are to be in ‘private’ (r 27.10(1)). Primary law – i.e. statute law or common law – is that unless an Act of Parliament or other case law says something different, all hearings must be in open court (and there is abundant case law and European Convention 1950 law to confirm that (as Haddon-Cave J explained fully in the Pearce case)).
It is basic law that primary law (common law or statute law) cannot be changed by a rule. Despite what some High Court judges say, rules are not made by Parliament: they are made by rule-makers, and Parliament can say if they disagree. Parliament has only disagreed once in the past forty years. The rule which says proceedings should be in private is probably unlawful (though of course, and for different reasons, it applies for children, those suffering mental incapacity, for privacy of family finance etc).
Rule in Clibbery v Allan
In a sense, the case of Clibbery v Allan  EWCA Civ 45,  Fam 261,  2 WLR 1511,  1 FLR 565confirms my point; and it represents the common – (judge-made) – law, which cannot be overturned by a rule-maker. The case confirmed that Ms Clibbery could pass some documents to the newspapers which she received from Mr Allan in proceedings under FLA 1996 Pt 4 (an unsuccessful occupation order application). And FLA 1996 Pt 4 is precisely the same form of proceedings which applied to Janet and to the mother in Re T.
To confirm in what a muddle is the law, the senior judge Dame Elizabeth Butler-Sloss P explained the term ‘private’ – as distinct from open court and ‘secret’ or ‘confidential’ – as follows:
 … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’
 I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.
This three category system for the family courts cannot be changed by a rule-change. Family judges, such as those in the Court of Appeal in Re T and in B and C (above) should be publicising the names of the people who are abusing their partners and children, and for one of the reasons that Charlie Pearce’s name was publicised. To ensure that others were warned about the type of person he was.
Friends and family in court
It goes further. If I am right, a frightened ex-partner or spouse can invite friends or family to come to court with her. They do not need special permission and the court can be asked to make room for them. Whether the press and others – e.g. to see how any successor to the now dropped Prison and Courts Bill 2017 cl 47 works in practice (if it ever happens) – can come into court: that awaits another day, another discussion of this absurdly complex area of law. There seems to be no logic in the same facts being dealt with in ‘private’ (or even in secret) in a family court, but in open court in criminal proceedings. I fear, logic does not rule family law when the open justice principle may apply.
And anonymity: surely that cannot truly be in question? The names of the father of the B and C children, of T’s mother and Mr JM – especially in the Court of Appeal – should surely be public? To that extent, at least, family courts need not afford secrecy to those who molest or otherwise abuse their partners, children or other members of their family – unless publicity of their names might be jig-saw linked back to any children concerned.
Feature pic of transparent dice by dicemanic on flickr – via creative commons licence. Thanks!