COMMONS AMENDMENT (Hansard, 10 November 2004)

§ Lord Filkin
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 67.
The amendment addresses an issue that has become more apparent over recent times, regarding the context within which privacy in children's matters can be addressed. As the House may recall, a judgment was 998 handed down in the High Court by Mr Justice Munby on 19 March on the strictness of interpretation of the privacy aspects of the family courts.
The effect of that judgment is that publication of any information about a children case, whether or not it would identify the child, is almost always prohibited without the direct permission of the court. Mr Justice Munby held that "publication" covered almost all Forms of communication, whether by word of mouth or in writing. That means that Members of this House or of the other place who receive details about family court cases from constituents or others, and who then pass them on, for example to government departments, may, potentially, be committing a criminal offence and/or contempt of court.
It goes wider. It also affects the police, the Crown Prosecution Service, social services and others who may be equally unclear about their ability to access and use information about family court proceedings.
This leaves us in a difficult situation. Clearly, children and families going through family proceedings should be able to obtain reasonable support and information by, for example, contacting others—MPs or voluntary organisations—when they think it appropriate. On the other hand, Mr Justice Munby's judgment says that if those bodies do not pass on the information—that is, if they do not do something about it—they are in breach.
It has been a complex problem and we have been working to find an effective solution. Our aim is to enable those with a legitimate interest to have information from family proceedings while, at the same time, ensuring that the child's welfare—that usually, and in this context, means the child's privacy—is paramount and is protected.
The effect of Amendment No. 67 will be that the publication of information which is intended, or likely, to identify any child as being involved in family proceedings is prohibited and is a criminal offence only in relation to disclosure to the public or any section of the public. That will make the existing Section 97 of the Children Act less restrictive and more in line with the real world. It means, for example, that those involved in family proceedings can legitimately tell relatives and friends about the proceedings without fear of prosecution.
The amendment to Section 12 of the Administration of Justice Act 1960 will also make clear that disclosure cannot constitute contempt where it is explicitly permitted through rules of court, subject to there being nothing else which would mean that the disclosure would amount to a contempt of court.
The amendment makes a series of changes to existing rule-making powers in other Acts to reflect our intention and—this is the nub of it—to allow rules governing disclosure to be made, effectively by allowing the procedure for making rules of court to be the vehicle for getting the detail of this right. We think that that will address the matter better than attempting to do so in primary legislation. Of course, the usual process for consulting on these issues has been followed.
The Government consider that the best way is therefore to consult on the formulation of the rules of court, which would specify the detailed basis on which 999 the disclosure of information would be authorised. Therefore, I hope that the House will accept that this is a sensible and effective way to proceed and that it will support the amendment.
Moved, that the House do agree with the Commons in their Amendment No. 67.—(Lord Filkin.)

§ Earl Howe
My Lords, as the person who tabled the original amendment on these quite complex issues, I want to convey my thanks to the Government for having brought forward these very welcome changes to the rules relating to contempt of court and disclosure in family court cases. I feel certain that the amendments will be particularly welcome to parliamentarians in both Houses and should not, I trust, disconcert the courts.
Perhaps I may be allowed to add one coda. Wider issues of privacy and confidentiality in family court proceedings are, as I am sure the Minister is aware, the subject of discussion, and perhaps concern, among a number of members of the legal profession, including, I believe, a number of members of the judiciary.
The Minister will know that the Constitutional Affairs Select Committee of another place is currently looking at the rules surrounding the family court system. I welcome that scrutiny because I think that, with the family court system having been in place for a dozen years or more, the time is ripe for an across-the-board review of how the system is working and whether it is fulfilling Parliament's expectations of it in all respects. I think that in many ways it has fulfilled those expectations, but there may be some areas which we could usefully consider with a view to improving the transparency of the system. I hope that we may have an opportunity to return to these matters over the coming months.

§ Baroness Walmsley
My Lords, I thank the Government for bringing forward this amendment. It may very well turn out to be an appropriate way of dealing with the problem. Only time will tell, and I am content to let it.

§ Lord Filkin
My Lords, I thank noble Lords on both Front Benches for their responses. With regard to the wider issue of privacy in family proceedings raised by the noble Earl, Lord Howe, I, too, noticed much of what the President of the Family Division, Mr James Munby and the other eminent judge, whose name I forget, said at the Select Committee yesterday on many issues.
Clearly, by that she was saying that this was an area for reflection, rather than thinking that we have reached perfection. I shall not speak for my former department, but I think that it will be interested to have discussions with colleague Ministers in other departments about this. Without wishing to raise hopes of imminent change, I think it is an issue that benefits reflection. I shall say no more.