Practice and procedure update
Guidance was issued by the President of the Family Division to family court judges, in January 2014, intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts.2 The president explained the need for greater transparency to improve public understanding of court processes and confidence in the system.
In his view, too few judgments were made available to the public, who had a legitimate interest in being able to read what was being done by judges in its name. The guidance stated that certain types of family court judgment should be sent (in anonymised form) to the British and Irish Legal Information Institute (BAILII) for publication, unless there were compelling reasons not to. BAILII is a searchable database of online legal resources, which makes court judgments freely available to the public.
Following the implementation of the guidance, concerns were expressed about the effectiveness of anonymisation; the risks of jigsaw identification; and intrusion on the privacy of children and young people involved in family court proceedings. Although more judgments were appearing on BAILII than previously, not all courts appeared to be following the guidance. Families and practitioners in some localities might, therefore, be more likely to be affected than others, and only a partial picture of family court practice was available.
This study, funded by the Nuffield Foundation, aimed to evaluate the responses to the guidance by the courts, other stakeholders in the family justice system and the media, and what this contributed to public legal education. The research team compiled a database of judgments that had been published under the 2014 guidance for two years after it was issued: finding a total of 837 judgments that appeared to fit the criteria. The study also considered mainstream media coverage of these cases, and the views of journalists on their use of BAILII. The views and experiences of family court judges and representatives of other stakeholders in the family justice system about the effects of the 2014 guidance and publication were also sought.
Some judges, especially those in the High Court, saw the 2014 guidance as simply reinforcing their existing responsibility to balance rights of privacy and rights to freedom of expression (articles 8 and 10 of the European Convention on Human Rights (‘ the convention’ )) to arrive at a decision about whether or not to publish in every case. However, some circuit judges did not regularly publish their judgments, or published none at all.
Only 27 judges, including 17 circuit judges and ten High Court judges, published more than ten judgments in the two-year period. There were significant variations in the numbers of judgments published from different courts. How busy a court was - and how many cases it dealt with - did not necessarily relate to the number of judgments publicly available.
Despite the 2014 guidance emphasis on children’s anonymity, some judgments had not been effectively redacted, and there was a high incidence of possible jigsaw identification from the amount of factual detail in many judgments.
A survey of judges, to which 17 responded, revealed serious concerns about the risk of A way forward might be to … require [courts and judges] to arrange publication of a small and manageable representative sample of cases that fall within the guidance
identification of children, with most judges saying that circuit judges did not have the necessary resources to ensure safe anonymisation. Other reasons given by some judges who avoided publication was simply lack of time, or not seeing the relevance of the guidance to them.
Some journalists found BAILII very useful, and there was some indication that media coverage has become better informed, but views on this were mixed among the judges, journalists and representative groups consulted.
The 2014 guidance has led to large numbers of family court judgments being available to the public and the media that would not otherwise be in the public domain. These are potentially a valuable resource for public legal education. Allegations of secrecy in the court system may have lessened in the mainstream media. Publishing on BAILII generally works well at High Court level, where most cases of interest to the media will be heard.
However, patchy understanding of, and adherence to, the 2014 guidance over the country means that the aim of presenting a holistic picture of the system is not being achieved. The burden of preparing judgments for publication, with all the associated concerns about identification of children, families and practitioners, is falling inequitably among judges and practitioners. The rate of publication on BAILII is falling, and the demands of the publication process may make it unsustainable in the current context of resource constraints and rising demand.
The 2014 guidance could be left in place as it is. This would mean that inconsistencies would continue, the rate of publication might continue to fall, and progress would halt. Withdrawing the guidance would ease the workload of local judges and reduce concerns about the effects on children, but some judges believe that more judgments should be publicly accessible. This might lead to concerns about article 8 of the convention taking precedence over article 10, and be seen as a retrograde step. Trying to enforce a version of the guidance by incorporating it into the court procedure rules might impose a stronger obligation on the judiciary and the parties, but will not be effective without investment in extra staff and more judicial appointments.
Another option is to hold hearings in public (as in the current Court of Protection pilot) but the task of imposing reporting restrictions and redacting documents would be onerous: attendance would have to be carefully managed. The risks to children, especially through social media, would probably be greater than to adults in the Court of Protection. Hearings in public would not necessarily stop the demand for published judgments, as few journalists or others will be able to attend routinely. We do not recommend a similar pilot in the family court before full consideration of robust research on the impact of the Court of Protection pilot.
The current situation is unsatisfactory, and does not achieve the original aim of the guidance to make public the work of the family court throughout the jurisdiction. A way forward might be to modify the guidance to require every court and every judge to arrange publication of a small and manageable representative sample of cases that fall within the guidance. This selection process would mean that not all judgments are available, but neither are they now.
To supplement publication, courts could lodge audio recordings of all judgments with a central register, where they would remain as an archive for accredited researchers or members of the media to apply to access. This would enable scrutiny, subject to controls that protect privacy. Judgments might be made available more widely at a point in the future, especially for a child in the proceedings who wants to read the decision in adult life.
Such a scheme should be introduced over a reasonable timescale, with support provided by the Ministry of Justice, and the senior judiciary, by way of training and guidelines. It should be piloted and evaluated, on the basis of publishing cases that are genuinely in the public interest, including consultation with all relevant stakeholders. Readers of BAILII could be asked for feedback. This approach would be fairer and would more accurately reflect the work of the courts than at present.
Some short-term recommendations in the report are summarised below:
1 This article is an abridged version of the full report, which is available at: http://orca.cf.ac.uk/99141
2 Transparency in the family courts. Publication of judgments. Practice guidance issued on 16 January 2014 by Sir James Munby, President of the Family Division, available at: http://tinyurl.com/mlxm8bb
3 The family courts: media access & reporting, July 2011, available at: http://tinyurl.com/lkxl4wt