And so the President has finally delivered his guidance as long anticipated, regarding transparency (see here). It will now be, as we had all expected, far more commonplace for judgments to be made public – in anonymised form – in many types of family proceedings.
A few key things :
This is part 1 of a far bigger project. It is the first toe in the water if you like. It’s really just about judgments – not about release of documents to the media, or about reporting restrictions or anything else.
The move towards publication as default which this guidance heralds does not apply (yet) to District Judges or Magistrates, who of course make a significant chunk of the decisions in these cases (the majority I would guess).
And publication as default does not apply across the board in all types of proceedings – to summarise there will be publication on public interest grounds or of any cases falling into particular categories (broadly the areas which are most controversial form the point of view of the Daily Mail or Telegraph – care and placement, deprivation of liberty, serious medical treatment, RRO applications and cases of exoneration or significant findings of fact) – unless there is some compelling reason why that should be disapplied. In addition the court may permit publication of a judgment on application.
Whilst children will almost always not be named, other family members are more likely to be named if they so wish. As was already plain from recent authorities Local Authorities and other public bodies, social workers and experts can no longer expect to remain anonymous where judgments are published.
Practical points – the Applicant (in the proceedings or, if judgment is produced as a result of an application for permission the Applicant for permission) is responsible for anonymising the judgment. That’s a pain – but someone has to do it.
The costs of obtaining the transcript will be borne at public expense in cases where the judgment is released on that ground, will be shared between all parties where it is released as a result of the type of proceedings, and by the applicant where there is a specific application.
Where proceedings fall into one of the listed categories there will be publication of the judgment only if it already exists in written form or has been transcribed or where the transcript is being ordered anyway. In cases where there is no transcript of an oral judgment the parties will remain open to apply for a transcript and permission to publish and the court may (not must) accede to that request. However in such circumstances there are costs implications – the applicant(s) would have to pay rather than all parties. I can see this might lead to some silly bugger type behaviour on occasion. I wonder if in practice such applications by (say) exonerated parents might be cumbersome because of the need to obtain funding prior to making such applications (both for the application and the entire cost of the transcript)?
Finally, similar guidelines have been published in the Court of Protection.