Transparency in the Family Courts and the Court of Protection – Inforrm

17 January 2014 by

MUNBY_2629027bThe President of the Family Division, Sir James Munby, has today issued important new guidance on “Transparency in the Family Courts: Publication of Judgments” [pdf] and “Transparency in the Court of Protection: Publication of Judgments” [pdf].

These two documents are intended “to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection”.

Both documents say that:

In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form [2].

The President notes that very similar issues arise in both Courts “in relation to the need to protect the personal privacy of children and vulnerable adults” and adopt an incremental approach.

The Guidance provides that permission to public should always be given “whenever the judge concludes that publication would be in the public interest” whether or not a request has been made [16]

The Guidance set out certain categories of case in the Family Courts (Guidance [17]) and the Court of Protection (Guidance [17]) in which there is a presumption of publication.  In such cases where

a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published.

In all other cases, the starting point is that permission may be given for publication of a judgment whenever a party or an accredited member of the media applies for an order permitting publication.

The Guidance goes on to provide ([20] in both documents) that:

In all cases where a judge gives permission for a judgment to be published:

(i)   public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;

(ii)   the children who are the subject of the proceedings in the family courts, and other members of their family, and the person who is the subject of proceedings under the inherent jurisdiction of the High Court relating to incapacitated or vulnerable adults, and other members of their family, should not normally be named in the judgment approved for publication unless the judge otherwise orders;

(iii)  anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.

The judgment should be anonymised as the judge orders.  Unless the judge orders otherwise all judgments will be deemed to included the following words:

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.[21]

Finally, the Guidance provides that as soon as a judgment to which [16] or [17] applies is approvied for publication it should, as soon as reasonably practicable, be placed on the BAILII website [23].

This post first appeared on Inforrm’s Blog and is reproduced here with permission and thanks

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  1. Finola Moss says:

    Possible get outs–

    ‘where a judgment is likely to be used in a way that would defeat the purpose of any anonymisation’- no examples.

    ‘compelling reasons’ —what will be ‘compelling’, and why -no examples.

    The proposals merely rebut the presumption of non publication . A judge has always had a right to publish an anonyimised version of his judgement for compelling reasons in the public interest.

    How does this affect the parents rights to seek help once proceedings issued or after order made. Do they still run the very real risk of imprisonment for contempt?

  2. Andrew says:

    The devil is in the detail. The PD for the family courts seems to envisage cases where the parties will be obliged to share the cost of transcription – why? Why should they pay to have their business – even partly or wholly anonymised – made public? Nothing of the sort happens in any other jurisdiction – why here?

    As for lay justices’ judgments being transcribed and published – I know of no magistrates’ courts where they are even taped. Who is going to pay to set that up?

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