Opening up the family courts – Lucy Series

14 September 2011 by

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”.

Lucy Series is researching mental capacity and human rights in community care settings for her doctoral thesis in law.  She writes a blog at The Small Places.

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  1. StuG says:

    Picking apart the above:
    “to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases”
    So, only the serious cases, or rather, some ‘specified’ ones. Probably where even the shallow intellects of the ornamental family judiciary got it right. So, it is not transparent at all. What about the everyday ones where children are removed on a social worker’s whim, or shared residence orders refused for no reason, and meaningful contact to fathers refused for no reason.
    Or, one which happened just last week. A father took his children to the PRFD in London after his two children, 7&9, reported various assaults by their mother and corroborated the allegations to the Police. The judge refused to speak to the children and refused to allow the Police, who had already interviewed the kids and turned up to the courts to assist further, to question them again in the court building or give evidence to the court. Without any testing of the allegations the children were sent back to their mother.
    Ian above is correct too; the judgements need to be bracketed according to type and easy to find.
    If the selection were entirely random in type case, location and from any time since 1989, the pilot would have merit. What is really needed is for the judgements to be closely examined by forensic discourse analysis alongside independent legal expertise. To track things more accurately, find one of those cases where a father has been to court 30-odd times, is not considered a risk to his children, and closely examine the judicial dialogue to see how they flout the principals of the Children Act in secret courts, and make it all up as they go along at each hearing.

  2. Stephen says:

    The third of the purposes listed above, “to provide judgments which the children involved could access in later life”, is a most excellent one.

    Individuals who have been separated from their biological families before their consciousness has developed are often enormously helped by gaining understanding of the separation in later life. I know this from direct experience.

    It would seem that this purpose is entirely consistent with the judgement in Gaskin v UK (ECtHR 1989) which held that individuals in Gaskin’s position (he was raised in public care) have a right to understand their formative years, their origins – these being components of an individual’s identity. The issue of access to public records containing such information engaged Article 8 ECHR, the Court held.

    A record written contemporaneously with events may be invaluable to individuals who in later life research their backgrounds. Verbal accounts can often be spun by the affected parties and may impede the seeker’s discovery of truth. Bitterness and hurt may cloud accounts.

    Once more Lord Justice Munby is mentioned in relation to an enlightened approach to children and families. More power to him and his very thorough analyses and enlightened conclusions.

  3. ian josephs says:

    As for the Ministry of justice report…….. They do not live in the real world.
    Can anyone seriously see”Joe public” locating these judgements let alone sifting through 20 pages or more of legal jargon that few of them could even begn to understand,?Parents should be free to tell their stories to the media ,naming names if they so wish and social services should then be able to give their side of the story instead of mouthing platitudes about devoted and overworked public servants ,or worse still rushing off to court to get an injuction to stop the matter being discussed at all !

  4. ian josephs says:

    It’s pretty simple really ! If mothers have their babies taken at birth they should not be threatened with jail if they protest on line ,or to the media . No other democracy in the world gags parents in this way,and it is astonishing that the right of all citizens to protest openly if they believe they have been oppressed by the State should be curtailed in the UK and nowhere else in the free world !
    Not content with this parents are gagged by the “SS” a second time when they see their children at “contact” and are forbidden to say they are fighting in court to get the children back or to explain the situation in any way.Free speech is thrown out of the window by this ruthless censoring of conversation by the “SS” who will stop contact if parents do not obey their censorship rules.The bewildered children then believe their parents are not making any effort to rescue them and have abandoned them.
    Abolish this “double gagging” in the name of democracy and freedom of speech .The UK SHOULD DISCARD SUCH TRAPPINGS OF THE POLICE STATE;

  5. M.A.F.G. says:

    the sad death of two family lawyers are narrated but I question the use of a certain wording by ‘Munby LJ’ – he describes them both as “distinguished ornaments” which in many peoples minds would be overlooked and held as a pleasantry but in my own perception Mr Munby is asking for younger and more energetic lawyers for this role. I may be completely off the mark but it seems Mr Munby whilst doling out pleasantries also calls for change – who the hell wants to be called an ornament- or were these lawyers merely impotent pawns of the system – ‘in the end’? Should they have been replaced long before?
    I seem within the first few paragraphs of this speech to find an under current that implies ,in my own perception, a subliminal message.
    If anyone has anything to say on this matter I’d like you to please consider that I have no standing anywhere near as important as these people and wish to defame no one- merely to discuss possible feelings of Mr Munby that may be spilling into his speeches.

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