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.
I need to think about this more before I do my own piece, but the bit that immediately worries me is Secure Accommodation. I think the volume of judgments on those will be relatively short, and thus just having “Child X arrived in secure in May 2014, so there must be a judgment in May 2014, and used to live in Trumpton, so I know the judgment will be from the Trumpton County Court” means that any other child living in the Secure unit can within a few minutes of searching on Bailli, be able to read the judgment and know that all of the facts reported about child X in that judgment are really about Pippi Longstocking, who arrived in the Secure unit in May. If you have ever done a Secure Accommodation hearing, you will know how troubled the background of these children can be, and that it probably ought to be up to them how much of that background they wish to share with their new peers.
It would be quite a bit more searching if you know that Pippi Longstocking in your class has just changed schools because she now lives in foster care and you know she used to live in Trumpton, but if you really wanted to find it you could.
We may inadvertently get to a point where judgments become anodyne and refer to the documents in the case to avoid that issue. (Just as when journalists came in on that first day that they were allowed, almost everyone in Court ended up saying nothing of significance and simply referring to documents that the journalists hadn’t seen in very oblique terms)
Not sure how to solve this without throwing out the baby of transparency in the bathwater of the child’s right to privacy, but I would have thought that piloting FIRST geographical anonymity (so that one knows the case was Midlands, North East, South West etc but not the county – UNLESS there are public interest grounds in revealing the Court and LA) would have been a better start.
[Also frankly, unless you set timescales for the publication of the judgment, there’s a huge loophole here – I can comply with the requirement to publish anonymised judgments but I can do it five years after the event or when the child is eighteen…]
Transparency, if the privacy of the child can be preserved, is a good thing and long overdue. I am pleased to see that any application for a Reporting Restriction Order is in the category of things that ought to be published. That is manifestly a good thing – we absolutely should not have so called super-injunctions in family proceedings.
I agree with all that Andrew – it is a good thing, but there are some practical issues that will need thinking carefully through – your secure accommodation one is a very good example. Another likelihood is that some parents may find it difficult to know where to draw the line in terms of use of the judgment – for example, does publishing it on your facebook page on which there are also pictures of your children amount to identification?
How wonderfully convenient for the judge who decided by his interim care order that Ms Pacchieri’s baby could be snatched away from her.
Exactly why are district judges still allowed to keep their judgments secret? Something to do with flimsy evidence, rubber-stamping, rubbish judgments, perhaps?
I suspect its more to do with the vast administrative burden and public expense that would arise from implementation across the board in one go. It requires a top down culture change, so the CJs and HCJs are the guinea pigs / leading from the fore depending on your perspective. The practical implications of requiring DJS to either give written judgments or to approve transcripts given the pressure of work they are under are quite real. Magistrates are a separate issue – they have to produce written reasons anyway so there is no difficulty there. They can be easily anonymised.
I think the reason for not publishing District Judges’ judgments is that they are often delivered orally. Routine transcription would be cost prohibitive as well as being a drain on judicial resources.
One would hope, however, that in time a mechanism will be put in place whereby there is scope to obtain a transcript of DJs’ judgments (at public expense) on public interest or ‘transparency’ grounds
Having said that, there may be an issue over whether the test for interim removal is being applied robustly by DJs. Greater transparency would help resolve concerns and/or reveal poor practice.
I still think that we should have had that particular ICO removal judgment published, Paul, and quite a few legal bloggers have said so quite often. That seems to me the pivotal one, but I suspect that if we haven’t seen it a month after the furore, we’re not going to. I don’t think that is good at all. Even if the judgment makes for awkward reading now for some people, transparency dictates that it ought to be made public.
I have just realised that at the moment, because all Secure Accommodation order applications start in the FPC and generally stay there, it won’t be an issue for a while – though when we have a unified family court, that will not necessarily remain the case, and I am sure that this will get rolled out across the board soon. {And I would actually argue that it should, not least because one shouldn’t be arguing about whether a case is best decided by a Judge or by Magistrates as a result of people wanting / not wanting to have the judgment published}
I notice that the guidance is silent on what HMCS or the MOJ are doing for Bailii in exchange for Bailii hosting a huge increase in volume of published judgments. I hope that there is some proper funding being provided, because if Bailii isn’t doing it, then this transparency will largely be stuck behind paywall sites.
Another issue which is potentially problematic is the fact finding or welfare judgments in care cases which take place before a criminal trial. This becomes even more of an issue where the facts are particularly lurid or idiosyncratic, because making the link between Mr X and the bloke on trial becomes easier then.
We know that jurors are more and more minded to google these days – if, say, a social worker or teacher is named as a witness in a published judgment and are also giving evidence in a criminal trial, it wouldn’t be that difficult for a juror to google the name of the witness and be able to read a judgment that could be very influential (and prejudicial)on deliberations in a criminal trial. It might be that on a case by case basis, there’s agreement that the anonymised judgment won’t be published before the criminal trial concludes, but may be this ought to be addressed as general guidance rather than piecemeal.
And absolutely I agree – it should be really clear for parents where the boundaries lie, and it really isn’t at the moment. If someone puts a link to a particular judgment on their Facebook page but doesn’t explicitly say “Mr X in this judgment is me, these are my kids” is that okay, or is it going to get them in trouble?
What if someone unconnected with the case posts the link on Twitter or facebook and the parent involved posts a comment saying “This was unfair” or “the parents were badly treated” – have they indirectly identified their child as being the subject of the proceedings – or is that identification only really for people who already know who they are? Not necessarily semantic, the answer to that could depend on whether they are breaching the law.
What if someone unconnected posts the link on Twitter or Facebook saying “Interesting case, seems like the parents were dealt with very harshly” and a campaigner on family justice then posts a reply or Retweet saying “I’m going to send this case report to Jim Henderson, I know he would be interested” – if Jim Henderson is the actual parent in question.
Has anyone breached anything in that example?
I agree, I’ve said repeatedly we should have it.
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And I see the President wants to include judgments of lay justices and DJs in the mags’ courts. Has anyone told him that the elaborate and expensive secure taping systems found in County and Crown Court buildings don’t exist in buildings only used by magistrates, lay or professional? Who is going to find the budget for that?
A blogger on another blog has suggested that cases should be moved to where taping is possible. That won’t work. Crown and County Court buildings don’t have retiring rooms for three justices to withdraw to to reach their decisions. I have said on that other blog that is all reminiscent of Tommy Cooper and “just like that”.
Finally, where the cost does not fall on public funds it should fall on the party seeking publicity. It is quite wrong that there should be a category of case in which a party who does not want his/her/the children’s private grief made public – not even anonymised, not even if anonymisation is effective – but is nevertheless obliged to fund the process.
Well for Magistrates it won’t be a major problem – they have a requirement to produce written reasons in any event, so no need for a tape or transcript. There are comparatively few DJ(MC)s. Some FPCs do seem to have tapes now, but you are right, most don’t.
This is fantastic maybe now there will be a modicum of accountability where before there was little to no accountability.
Magistrates’ reasons are written in lay language, and commonly hand-written in the retiring room and usually only legible to the Chair who has to read them out. I know whereof I speak. They are not to be compared with even an extempore judgment by the professional judiciary.
They are in my experience usually (often?) typed. Which is not to say they are comparable to a judgment from a judge – they are a different beast.
Imagine how a loving caring Parent {who has been stitched up} feels when a Judgment is published for the public to read and digest whilst it contains LIES, FABRICATIONS, UNLAWFULNESS AND COLLIUSION!
In my view, the “entire” System {Family Court and the CoP} is contaminated with money grabbers who pays NO RESPECT TO FAMILY LIFE WHICH IS ‘BEDROCK OF SOCIETY’.
Everyday, I wonder if this is a DEMOCRATIC SOCIETY THAT WE LIVE IN?