Selective publication of Health, Education and Social Care Chamber cases can reflect recognition that “justice cannot thrive unseen”, senior judge says

In a speech on 14 January, Mark Sutherland Williams acknowledged that in recent years, the tension between confidentiality and transparency within the family courts has become “something of a defining issue”.

He said: “The evolution of open justice in this context not only reveals changing social attitudes but also raises important parallels in other sensitive and confidential jurisdictions such as mental health and special educational needs.”

The HESC President said the debate over openness in the family courts “resonates strongly in closed tribunals where sensitive personal information is central—particularly in mental health cases and special educational needs (SEN) appeals involving children”.

He said: “In mental health, the Tribunal Procedure Rules already contain an option for hearings to be held in public at the patient’s request, with appropriate safeguards. This marks a limited but meaningful recognition of the open justice principle - acknowledging that individuals subject to compulsory powers have an interest not only in fairness but in transparency of process. Yet, the presumption under the rules remains one of privacy, given in part the stigma and vulnerability often associated with mental illness. Notwithstanding this, some first-instance decisions have been published in anonymised form, promoting accountability and public understanding of how legal principles are applied.

“Last year, following Maher v FtT (Mental Health) and Ors [2023] EWHC 34 (Admin), Presidential Guidance was issued within the mental health jurisdiction to safeguard the rights of victims, ensuring they were entitled to receive the reasons underpinning tribunal decisions. This year, those protections have been further strengthened through the introduction of victim impact statements under section 21 of the Victims and Prisoners Act 2024.”

Judge Sutherland Williams noted that in SEN tribunals, similarly, the rules provide for a “default position” of private hearings.

“However, as in family justice, there is an emerging approach towards measured openness, carefully balancing transparency with the child or young person’s right to confidentiality,” he said.

“For example, since September 2025, SEN hearing lists have been published online, and earlier this year Presidential Practice Guidance was issued on preparing for hearings in SEN and Disability Discrimination cases.”

The President said that across the HESC Chamber, significant work had been undertaken to ensure that its processes, practice, and procedure are more clearly understood.

He acknowledged that the gradual reform across the HESC jurisdictions reflected a broader judicial methodology: “open justice as a qualified, not absolute, principle”.

He continued: “The modern approach recognises that transparency promotes accountability, consistency, and public confidence, but that unrestricted openness could cause real harm to vulnerable individuals, including children.

“As Sir Andrew McFarlane [President of the Family Division] observed, the challenge lies in ‘achieving transparency without cruelty’ - ensuring that the justice system is seen to be fair without exposing families, patients, or children to unnecessary intrusion.”

Acknowledging society’s “growing desire” for accountability within closed environments, Judge Sutherland Williams said: “From near-total privacy to a culture of controlled transparency, steps are now being taken in HESC to help reconcile the public interest with the personal interests of those subject to proceedings. The question is no longer whether the principle of open justice should prevail; rather, it concerns the manner, mechanisms and derogations by which it is to be given practical effect.”

He concluded: “While tensions within the rules persist and privacy in many cases remains vital, selective publication and access by some can reflect a recognition that justice cannot thrive unseen. Ultimately, the principle of open justice in these contexts demands a more balanced and measured equilibrium - one that protects dignity and welfare while ensuring that the administration of justice remains visible, comprehensible, and, ultimately, worthy of public trust.”

Lottie Winson