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Regular readers of our blog might well be aware that the legal system in England and Wales is based on both statute (laws passed by Parliament) and case law (decisions by the higher court judges which set ‘precedents’ to be followed in future cases), these precedent cases are published and available to all to read and consider.

In England and Wales there is a principle that justice must not just be done, it must also be seen to be done. Family cases are often heard in private, and the privacy of the family court has been criticised for being an exception to this rule. People going through divorce or separation might feel grateful for the privacy afforded to them; however this does not mean that the open justice principle does not apply to family cases. Family cases can only be afforded privacy when the need can be justified on the facts of any specific case. There has been a recent move towards providing greater transparency in family law, and since February 2014, judges have been required to send certain specified types of family court judgements for publication on BAILII (a database of online primary legal resources), the exceptions being if there are compelling reasons in the individual case why that should not happen.

An individual’s privacy is one side of the balance, Public interest is the other. Public interest does not mean ‘of interest to the public’, there are many people who might be interested in the private lives of others, public interest means there being a societal benefit to the information becoming public and focuses on the reasons why the press, campaigners, researchers, charities or other legal professionals ought to know about the outcome of a case.

It is important for society to be able to verify that the justice system is working, and to know when it is not working, for campaign groups to be able to contribute to public debate and to campaign for change. In family cases, it is important for there to be transparency for example when children need to be taken into care and as to the court’s approach to disputes between parents regarding the arrangements for their children, or how courts will protect you from abuse or false allegations. Similarly, understanding the decisions regarding the financial disputes between separating couples or disagreements between family members and medics about life saving or life ending treatment, ensures that decisions are not made ‘behind closed doors’ and the reasons behind the decision making process are clear.  A public knowledge of the decisions made often results in pressure being applied to develop the law to fit to a changing society.

The law puts in place some automatic restrictions on what can and cannot be said publicly about family cases. These automatic restrictions can be relaxed or tightened, and most family cases cannot be published without the permission of the judge. The judge will usually consider whether to publish a judgement at the end of the hearing and the law requires that the balance between the right to respect for private and family life and the right to freedom of expression be considered. Neither right automatically takes priority and the judge must take a balanced decision on the facts of each case.

A recent case where the court had to consider these issues has just been reported, this is the case of Prince Louis Xavier of Luxembourg in the High Court. In this case although the judge had some sympathy with the wife wanting to publicise her side of the argument, he imposed reporting restrictions having carried out the balancing exercise. For further information in this case, please see http://www.bailii.org/ew/cases/EWHC/Fam/2017/3095.html.

The Recent guidance on publication only applies to family court judgements given at circuit judge level or above. It does not apply to decisions of the magistrates or district judges, although a District Judge may chooses to publish a judgement if they consider it appropriate to do so. The guidance also only applies where there is already or is going to be a written judgement.  In practical terms, the focus is usually on whether the case can be anonymised to prevent any children being identified and whether any specific reporting restrictions are required in relation to the facts of that case.

It is not only the judge who might consider publication of a judgement; others who are party to the case might also seek publication. A judgement may also be released to the police for a criminal investigation.

If you apply for the publication of your case, the judge will need to consider whether a written judgement is already in existence or whether the costs for this should be incurred. If publication is in the public interest or if your case falls within the schedules to the guidance, it should ordinarily be published. If the judge is considering publishing your case, you do have a right to be consulted. If you are concerned about publication, because you fear identification for example, you can request that the court consider removing certain details from the judgement to ensure identification is not possible. For further information about publication of your own case, please go to The Transparency Project website, here http://www.transparencyproject.org.uk/guide-for-families-about-the-publication-of-family-court-judgments/ .

It can be very useful to have a copy of the judgement of your case as a record, and you have a right to obtain a transcript of what has been said in court. However, it is important to be aware that under the Judges’ Guidance, asking for and obtaining a transcript of judgement may bring your case under the criteria for publication of that judgement in a way that it was not before the transcript was obtained.

www.bailii.org is a small, charitable website which the contents of which the public are largely unaware, but legal reporters, lawyers and researchers will often use this resource to find and write stories about family courts that the public will be interested in. Whilst many newspapers try to publish only accurate reports with reasonable balance, the regulatory code most newspapers sign up to does not prevent some newspapers from publishing stories that ‘cherry pick’ isolated aspects of judgements to make controversial headlines.

If you have any questions about the potential publication of your case or any other family law issue, you can call us on 01223 443333 and make an appointment to speak to Simon, Adam, Tricia, Sue, or Gail.