More family judgments than ever before are being made available to the public, primarily through BAILII.
But sending a judgment to BAILLI doesn’t in itself mean that the public are better informed or that they are able to access the information held on that site in a meaningful way. Put shortly, publishing judgments doesn’t necessarily increase transparency.
It sometimes feels as if judgments are written with the Court of Appeal in mind rather than the families involved or the public who might read them. Of course they have to set out the law, and that often is complex, so it’s difficult to make them easy to understand by non-lawyers. But we don’t think it’s impossible in most cases. Or at any rate we think that there are things that can be done to make judgments more accessible and hence more useful to a wider range of people.
We are currently considering a project on this topic, perhaps with the aim of producing some best practice guidance, and are wondering if it would be helpful to do a bit of “road-testing” of some judgments to see how non-lawyers do understanding what they are about and which bits are important, before refining those guidelines.
Since it’s launch in 2009 the Supreme Court has published press summaries of its judgments which are really useful. Inevitably, because the Supreme Court deals with the most complicated cases in the land, even the summaries can be quite tough going for a non-lawyer, but they are a real improvement on a standalone judgment. Other courts rarely do this.
In the Technology and Construction Court, some judges have taken to using a template which has standard headings, in seven sections:
- Introduction
- The parties
- The Facts
- The law
- The arguments
- Discussion
- Conclusion
In the Family Court and Family Division practice varies. Some judges use a table of contents for longer judgments, like this judgment of Cobb J in Local Authority 1 (“LA1”) & Ors v AF (Mother) & Ors [2014] EWHC 2042 (Fam) (20 June 2014). In other cases, even though children are invited to read judgments they are lengthy and full of complex terminology and words like “admonition” (see K (Children) [2014] EWCA Civ 1195 (02 September 2014)).
[Amendment : I forgot to include a link to this judgment : Milton Keynes Council v A, B, C and X and Y (Muslim children, Special Guardianship) [2014] EWFC B102 (14 May 2014) which is a really good model, with a 3 line summary at the start.]
The practice of some family judges is to announce their decision at the outset, sometimes giving summarised reasons, and subsequently delivering full reasons. This gives parents who are faced with an unwelcome decision an opportunity to leave court without having to sit through a lengthy judgment, uncertain what the decision will be.
Whether a judgment is delivered orally to parents or other parties, or subsequently published on BAILLI or elsewhere a summary at the beginning, perhaps as a separate document, would be very helpful. Such a summary should explain the case in layman’s terms, or at least in terms comprehensible to the human parties. A final paragraph headed “What I have decided” would also be a boon. A summary would also make BAILII easier to navigate, and would make it easier for browsers or searchers to locate material of interest.
There are however real resource implications for judges arising from all this. Approving a judgment or transcript for publication is time consuming – it must be proof read and anonymised. Drafting of an appropriate summary that accurately captures a difficult judgment will take time too.
The summaries seem to cover the same purpose as the reports in the proto-manifesto and the comments on it. Judicial summaries would provide a comprehensive solution but as you note clarity may still be missing (I agree with your comments about the official UKSC summaries). For lawyers, Westlaw type headnotes can also summarise but again are not always clear to the less experienced reader (it is not unknown, in the case of short judgments, for the judgment to be an easier to be an easier read, given the inevitable constraints in the headnote). Extending the reference to the UKSC, many cases are also reported on via blogs such as UKSCBlog.com and UKHumanRightsBlog.com (e.g. Rosalind English’s laudedly clear note on Hounga http://ukhumanrightsblog.com/2014/08/27/victim-of-trafficking-can-claim-compensation-despite-illegal-entry-to-uk/). Such summaries post judgment (if not local press style during the case) could ease the pressure on the judiciary – but there comes a question of how to support it.
This may well already have been considered but it struck me as a possibility. One of the aims outlined in the Aug 16 post is to ‘The aim of the project is to shed some light on the workings of the Family Courts, to make the process and the cases understandable for people without law degrees.’ If this could be met through a project of a defined length to provide exemplars (which could then develop but outside the funding model), then it may be worth seeking funding from e.g. Nuffield. Nuffield’s Law and Society programme includes Transparency and accountability and Access to justice with the potential to lead to institutional change. While they won’t fund continuous expenditure, if the above was, say, a two year programme to provide a resource then it wouldn’t be continuous (even if the project continued) and could fuel wider institutional change if it was in the form of a (further) piloted exception to the usual rules which could lead to wider openness (although that may be less likely in the post-judgment report way of doing this but, given some thought, there may be some institutional effects that could arise).
Just an idea.
Thanks JH. That is really useful. We are going to have to work up our defined projects and proposals – and funding is one of the things we need to look at to make this sustainable, or at any rate to maintain momentum until established. I think that there is a distinction between summaries written by the judiciary of their own cases and material written that places the judgment in context and explains basic terminology or concepts.
I applaud any attempt to make a judgement more accessible to those who have to read it, but I am not sure that simplifying the judgement itself works. The best route would appear to be a summary at the beginning or end written in simplified English. Even the case for which there is a link incorporates more complex language than usual within it , or complex concepts – i.e. use of the word permanently, rather than forever. Someone with an IQ of 59 would not understand that term. In cases involving those with learning disabilities, judges could (with assistance) provide much more simplified words , probably with pictures as reinforcement, but that would take a lot of time and would need expert advice. The entire terminology of the law and the concepts behind it also require explanation if there is to be true transparency. That is a hard and onerous task, given that such terminology is used as a shorthand to incorporate a variety of concepts which can be difficult to unpack.