Opening up the family courts – Lucy Series
14 September 2011
Last month the Ministry of Justice published a report of a pilot project that ran last year whereby participating family courts produced and published on Bailii written judgments of specified Children Act 1989 cases. The project had three main aims:
- to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases;
- to help parties by providing written judgments in all cases, even where a matter was not contested;
- to provide judgments which the children involved could access in later life.
The family courts are often perceived as ‘secretive’ or aloof; Munby LJ has made excellent arguments for greater transparency far more eloquently than I could hope to do in this speech (pdf)
Conclusions of the FCIP report
It was felt by many that children would benefit from having a written judgment to refer back to in later life, to understand the reasons for decisions that were made about them by the courts. Similar arguments may pertain in the Court of Protection, to enable P and P’s family to understand the reasoning behind decisions affecting them. A clearly reasoned written judgment may offer a much better tool for longer-term understanding than a verbal delivery, particularly when the subjects at the heart of these cases are rarely present in court themselves.
The judiciary and court staff found the task of writing judgments and then anonymising them burdensome. They felt this was manageable at present, but might become less so if the project was rolled out nationally and resource pressures continue to grow. The judiciary, court staff and family law practitioners also expressed concerns about privacy issues. However, no parties objected to their judgment being published on Bailii, although some respondents felt they did not understand what the website was or the implications of publication.
A major shortcoming of the FCIP is that no families responded to the invitation to give their views on how they felt about their cases being posted on Bailii. It is difficult to assess, therefore, the accuracy of perceptions that they did not understand the implications of publication, or that they would feel concerned about their privacy. The FCIP did, however, hear from some respondents to a survey by Bailii who were involved in family court proceedings themselves:
members of the public responding to the survey] were disappointed with the level of detail and lack of identifiable information. The members of the public, some of whom were involved in cases, were variable in their replies, one describing the pilot as “a hoax” designed to mislead the public, while others said how good it was to see how much care was taken in reaching decisions and that the reasons given were “cogent and helpful in understanding the outcome. (p20)
What limited evidence the FCIP does present of family’s views seems to suggest some may be reassured by reading the judgments. Furthermore, with growing numbers of litigants in person in the family courts and the Court of Protection the need to provide free and clearly reasoned case law to help assuage inequality of arms will only increase.
In contrast with family law practitioners, local authority lawyers thought it might be extremely helpful to have free, written judgments to refer back to. “Social welfare” professionals using the judgments on Bailii’s site found them useful, and there was discussion of how the written judgments could be a useful training tool for both health and social care professionals, and the judiciary themselves (albeit with some debate about who should resource this).
The judgments were accessed 56,887 times on Bailii. The estimated cost of the pilot was £10,000 – so that’s 17.6p per download, a bargain! Concerns were expressed about the navigability of Bailii, especially if the volume of the judgments posted on the site were to be increased., but this is hardly an insurmountable obstacle to transparency. The excellent Mental Health Law Online website indexes their case law pages by subject-matter. Bailii have a much bigger task since they cover far more jurisdictions, but how hard would it be for the courts to ‘tag’ their written judgments with more information about content and the type of case, just as bloggers do…
The Bailii survey found that the judgments were also useful to legal academics and analysts, and the media. The published judgments had not produced a ‘feeding frenzy’ for the media, tracking down parties involved in published cases. It strikes me that if anything it is a good thing for the press to be able to have access to the court’s raw judgment, rather than relying on the account of a select few parties to the case.
The FCIP suggests many reasons for considering a national roll-out: providing parties with accessible information about decisions in their cases; improving practice through training and awareness; countering perceptions of secrecy. Interestingly, the report makes no engagement at all with the Article 6 requirement that judgment must be “pronounced publicly”, which can be achieved either through a reading in open court or depositing a written judgment in a public registry (Pretto v Italy, 1983).
Concerns meriting further research around privacy remain, but resources are likely to be the most serious obstacle. It would be a shame, I think, if this project were left at the bottom of a drawer in the Ministry of Justice marked “too expensive”.
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