Questions for the family courts
What have the following got to do with the open justice principle ('OJP') and with each other:
Each, I would say, would benefit enormously from adherence by the family courts (ie Family Court and Family Division of the High Court - that is, those courts subject to Family Procedure Rules 2010 (FPR 2010)) to the basic common law principle of OJP (as explained by the Court of Appeal in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening)  EWCA Civ 420; and in the Supreme Court in, eg, A v British Broadcasting Corporation  UKSC 25). Each, in their different ways, show the haphazard way the family courts operate under its Alsatianised rules.
(For Alsatianisation, see Munby J (as he then was) in Richardson v Richardson  EWCA Civ 79:
' ... The Family Division is part of the High Court. It is not some legal Alsatia where the common law an equity do not apply. The rules of agency apply there as much as elsewhere. But in applying those rules one must have regard to the context ...'
That is, as I understand Sir James, then to mean that common law comes first, not family procedural law (with which the Court of Appeal in Jaffrey v The Society of Lloyds  EWCA Civ 586 would, I suspect, agree). In his modern 'transparency' phase he seems to put FPR 2010 before the common law and thus ghettoise the family courts over which he presides).
OJP - the common law
The common law position is the OJP, which is subject to important exceptions. Such old chestnuts as Scott & Anor v Scott  UKHL 2,  A|C 417; Attorney General v Leveller Magazine Ltd  AC 440 (CPR 1998, r 39.2(4) (below) picks up the misjudged Col B point in AG v Leveller) and Bank Mellat v Her Majesty's Treasury (No 1)  UKSC 38 repeat this again and again for all courts. The need for the OJP can be illustrated by Amendment X, and then illustrated - pour encourager les autres - by the other two cases.
En route to the discussion, it is necessary to set out how the common law, now codifed (it might be said) in Civil Procedure Rules 1998, r 39.2, sees the matter: that all hearings in civil litigation (which, for common law purposes, includes family proceedings) must be in open court (ie 'in public': CPR 1998, r 39.2(1); and see, eg, JX & MX v Dartford & Gravesham NHS Trust & Ors  EWCA Civ 96 for infant settlement procedures - parties can always be anonymised), subject to:
(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;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.
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