The media often accuse the family courts of being secretive. They claim that the public don’t understand the workings of the courts, their processes and the way judges make decisions. They often criticise the family courts for not being open enough, or worse, for miscarriages of justice and either breaking up families unnecessarily or not acting sufficiently quickly.
In contrast to the ongoing media perception of secrecy, there is an important principle within the family courts that justice must be done, and that justice must be seen to be done. The problem that the family courts have is balancing considerations of open justice with the need to protect the individuals involved in family court proceedings, particularly the children, from unfair intrusion into their lives.
Nevertheless, the press thinks the pendulum has swung too far against the interests of openness. The recently appointed President of the Family Division, Sir James Munby, has grabbed the issue firmly by the scruff of the neck. He is now steering the sweeping changes being made to the family courts through to their implementation next year, and a key part of those changes is an improvement in the transparency of the family justice system so that it can be better understood both by participants in it and by the public at large.
In his recent “View from the President’s Chambers”, Sir James expressed his long-held concern about the perception of a lack of transparency and his determination to improve matters through an incremental approach to opening up the courts. The first step has been to publish a draft practice note on the publication of judgments, on which the President is seeking views and input.
The practice guidance provides for a greater number of written judgments of the family courts and the Court of Protection (the court which makes decisions and appoints deputies to act on behalf of people who are unable to make decisions about their own health, finance or welfare) to be published and made available to the public and to journalists. In cases concerning children being taken into care, it will become more common to name the experts and the local authorities involved. Importantly, however, the identities of children will continue to be protected.
Journalists reporting on a case will be allowed to read the court’s judgment to give them an informed understanding of what happened and allow them properly to analyse the case. This will hopefully go some way to demystifying the processes and decisions of the courts, and allow for more accurate journalism.
At present, the guidance provides that some types of case must be published unless there are compelling reasons not to – these are principally cases concerning adoption or children being taken into care, or about the giving or withholding medical treatment. In other, private family law cases, judgments could potentially be published where a party or an accredited member of the press applies for an order permitting publication and the judge concludes that publication would be a positive step. In this decision, the judge needs to take account of the need to balance the rights to freedom of expression of the press against the right to respect for the private life of the family concerned. Judges must always consider whether a judgment should be anonymised or whether the names of the people involved can be made public.
Any views on the draft guidance should be sent to the President’s Legal Secretary at the address given in the document. The guidance may undergo revision before being reissued in a final version. It is likely to be followed by amendments to the rules of court (the Family Proceedings Rules) in due course, but Sir James is keen to make progress in demystifying family justice quickly, so after feedback has been received and considered, this guidance is likely to be formally issued and will take effect.
The Times has reported this guidance as a “landmark decision” aiming to shine a light into the dark recesses of family justice. It has been leading a campaign to open up the 95,000 hearings held in private every year.
We have written previously about the planned changes to the family courts and the introduction of the Single Family Court, for which increased transparency is an integral part of the overhaul. Earlier Sir James Munby said “I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.” We applaud any developments which help families facing the daunting prospect of litigation gain a clearer picture of the family justice system, as long as the privacy of those involved is not unduly compromised.
If you have any questions about privacy or openness in the family courts, do give Adam, Simon, Gail or Sue a call on 01223 443333.