In early 2014 the Daily Mail ran with the headline “At last! Victory on secret courts: Rulings in family cases to be made public after Mail campaign”. The article trumpeted:“Councils applying to take children into care can no longer hide behind a cloak of anonymity.” There were other similar headlines, with various papers claiming the credit.
The Mail said that “new rules” directed that “future judgments in the family courts must be made public except in cases where there is a clear reason to dictate they should not be.” Well, not quite. What was actually behind the headlines was a guidance document issued by Sir James Munby, the President of the Family Division - a well known proponent of greater transparency. The guidance spelt out for judges what sorts of judgments in family cases they should publish, and – bearing in mind the need for privacy, which the guidance anticipated would usually be protected through anonymisation – at what point in time they should release a ruling. It was intended to prompt a wide change in practice and to result in the publication of many more judgments. Munby's hope was that this would explain the work of the family courts in cases involving children, to “improve public understanding of the court process and confidence in the court system”.
But at the end of the day guidance is just that : guidance for judges to interpret. Not rules, not law.
There is a long, unhappy history to why these changes were brought in via guidance not law. The short explanation is that making family cases more transparent is a huge legislative and political headache. Parliament having tried and failed to find a way forward, most recently in 2010, the judiciary were left to grapple with the problem themselves - without the assistance of law reform or any accompanying resources to back them up.
Two years on, whilst it is undoubtedly true that many judgments have been published, and some news stories written that previously would never have seen the light of day, the guidance has not seen revolutionary change and has caused a number of problems – both in principle and practice.
An increase in the number of judgments being published demands an increase in resource: Judgments take time to prepare: they must be typed or transcribed and checked, anonymised and re-checked prior to publication. And when courts are publishing judgments that they would previously have simply not published at all because of the inherent privacy of the subject matter, that anonymisation becomes critical. Judges have no additional time or staff support available to carry out these tasks: they must be slotted in between wall-to-wall hearings. The number of cases coming through the family courts is at an all time high so as the workload increases the pressure to prioritise becomes more acute. The first task, rightly, is making children safe by making sound decisions; the publication of a record of that main work comes second on the list. Courts are working with skeleton staff, and anonymisation is left to the judge or, more often, passed on to lawyers - who are expected to carry it out without additional pay. The process is ad hoc rather than systematic, and with all participants under pressure errors are inevitable. One stark recent illustration is the brief publication of a completely unanonymised judgment relating to allegations of sexual abuse of a named child. Fortunately the mistake was remedied swiftly - although only because lawyers unconnected to the case who happened to notice its weekend publication and the obvious gravity took steps to track down the publisher meaning it was only live for perhaps 24 hours - but the potential for harm and distress is clear. In other countries such as Australia, where judgments are anonymised before publication, there is a dedicated unit, clear guidelines and operational checks to ensure mistakes of this sort do not happen in the first place. Back in England a research project is underway to develop further judicial guidelines for anonymising their judgments, but this presupposes that the problem is judicial carelessness rather than a lack of resource and process and will not in itself resolve the problem.
A more common and unsurprising problem, given the workload of judges since the guidance was issued and the lack of any support unit, is significant delay between the making of a decision and the publication of the judgment (sometimes even where the case has hit the headlines), either because an individual judge builds up a backlog, or because a transcript has got buried in an overflowing inbox at some point in the system. In the “secret family courts” they are not waving but drowning.
So what about that Mail headline? Well, matters were never so clear cut as the headline proclaimed. The transparency guidance had two strands. Firstly, it said that a judgment should be published whenever in the judge’s view publication would be “in the public interest”. Secondly, it said that in certain categories of judgments (for example most final decisions in cases about the removal of children from the care of their parents) there should be publication unless “there are compelling reasons why the judgment should not be published” (compelling reasons might be a high risk of identification / harm to a child, or where there was a risk of prejudicing an ongoing criminal trial). So, in each case of this sort the court should be actively considering whether there is a good reason not to publish – and if there isn’t, that judgment should appear on BAILII (British and Irish Legal Information Institute, the charity which hosts judgments for public viewing). Even allowing for the fact that the guidance applies only to certain levels of judge, and where there is a written judgment or transcript of an oral judgment, and even allowing for the fact that there will be compelling reasons to the contrary in some cases, it is clear that publication of judgments is just not happening consistently. Some judges have not published a thing in the two years the guidance has been in force. Have they really found compelling reasons not to publish a judgment in every case they have dealt with?
The problem is this: there are wildly different views about this guidance between one judge and another, between one lawyer and another and between one parent and another. While some parents are keen, or at least content, for judgments to be published, and some actively wish to tell their story to the press, many more are highly anxious about even anonymised details of the most awful time in their lives going online. They don’t want to be identified at the school gates, and nor do their children. So, where a judge is not a fan of the guidance, and in the frequent circumstance when nobody’s lawyer is instructed to raise the issue – indeed it is not in their clients interests to raise it - the principle of publication of the judge’s decision, and the reasons for it, is simply “forgotten”. Children, even older ones, are not routinely asked about their views on these matters by their legal team although they are entitled to a view on the publication of the story of their life.
By contrast, where a local authority has taken a pasting for some social work failing or other, you can pretty much guarantee all parties (except the local authority naturally) will be clamouring for publication, and the judge, having been sufficiently narked with the local authority to have expressed his criticisms in writing, will usually agree.
This is all fine – and such judgments should be published. But it produces arbitrary and skewed results – if a judgment critical of the state is more likely to be published than one where everything has been done as it should, and where a local authority has made out its case and children have been properly removed from their parents – the impression created of what is going on in our courts will be distorted. A public that thinks that every case that is handled in the family court is a case of social work failure and incompetence is not a public whose confidence in the system has been enhanced by transparency. This is the vital importance of the neglected second strand of the guidance : it recognises the inherent public interest in open justice through the routine publication of judgments, as opposed to the specific public interest in a report of an individual case. Cases may hold public interest even where they are not newsworthy and vice versa: surely it is in the public interest to be able to read about a run of the mill case where the state has discharged its functions responsibly and a parent has been proved to have harm their child, as much as one where things have gone disastrously wrong?
What’s more, there are risks that the pendulum may swing the other way : the trouble with publishing only or mainly those judgments where there is public interest because social services have been criticized for failures, is that it can cause a crash in the morale within local authorities seen to be performing badly; it can affect staff recruitment and retention, and can contribute to a spiral of failure which could amount to a disincentive to publish for a judge who needs her local social services department to function effectively. Perhaps that is a compelling reason not to publish, but it is no part of a judge’s function to shield an arm of the state from legitimate public scrutiny for its failures. Of course it will always be the case that only certain kinds of judgments will be seen as newsworthy by the press, but that does not absolve the justice system of its responsibility to make available the judgments from the entire range of cases. What’s more, the local impact of a stream of negative judgments on the professionals working in the field is quite marked, regardless of press attention.
This sort of ad hoc, partial and risky version of transparency was never what the guidance intended to promote. The past two years have demonstrated this much: that issuing guidance without the proper resources, operational procedures and clear lines of responsibility is not an effective way to “improve public understanding of the court process and confidence in the court system”.
Instead, we should have clear rules of court, or even primary legislation, that makes plain that judgments will be published in anonymised form unless a good reason to do something different is established. The ball is then in the court of any person who wishes to restrict publication or enhance anonymity to raise the matter. Let’s have no more of this unspoken collective neglect of the guidance. There will be good and obvious reasons not to publish in some cases, and good reasons to increase or reduce anonymity in others – let the court hear argument and issue a reasoned decision – and in each case where anonymisation is required let there be proper processes and resources to get it right. Transparency need not jeopardise privacy if done properly. This of course requires money, both in terms of legal aid and administrative staff to back up the judges - but what price protecting the privacy of vulnerable children and the public confidence in the court system?
NB : This is an article I wrote in April and have been trying to arrange for publication where it will reach a wider audience for some time. I expect a shorter version of it will be published next week and I will add that link here. But I don't want to wait any longer to publish this piece, because it's important and pressing. [update 26 June : This has now been published in shortened form in The Guardian, under the headline : Why are we still waiting for transparency in the family courts?]