What about cleaning the dirty window first, asks David Burrows, of DB Family Law in response to yesterday’s post by Paul M, The Emperor’s New Clothes – or Delusions of Candour

Paul M of the Transparency Project takes issue with John Bolch’s dismissal of the efforts of family proceedings transparency supporters (The Transparency Delusion). This note looks at the logically prior point: if you can’t see what you’re being shown if the dirty window is cleaned, it might as well stay dirty. If those who want to see a transparent family court system are still confronted by a maze of confusing laws and inconsistent procedures the laudable efforts of the transparency reformers are of only limited value.

In an earlier post on my blog, A Luther for Family Law  I likened the legal profession – and the judges who write the judgments are very much part of this – to priests in the pre-Lutheran medieval Catholic church. Only they – or those of them who could read Latin – had access to the Bible. That was the text which was said to define the church as it then was. The equivalent for court proceedings and modern justice is the various documents and texts which make up the law. If these are not capable of being understood by all who take part in a system of justice then it is not just.

Laws: clear and ‘simply expressed’

The Courts Act 2003 says in section 75(5) that when drafting what are now the Family Procedure Rules 2010, the rules should be drafted in such a way that ‘the family justice system is accessible, fair and efficient’, and that the rules themselves should be ‘both simple and simply expressed’. Rules are a good place to start. They define the way cases proceed from issue to trial and beyond, including costs appeals and enforcement. If those Rules are difficult to understand it is a bad starting point for litigants.

Many rules are not easy to understand (try following the family proceedings costs rules from an uninformed start). Many rules do not follow the common law (ie they are unlawful: court constraints on disclosure of documents in financial proceedings; the ‘transparency’ rules themselves and some of those same costs rules). Often the rules are not followed by the judges themselves (eg case management rules).

Transparency, by all means – if the privacy of children and family members is properly respected (all concerned in family proceedings have the right to have their family life respected: European Convention on Human Rights 1950, Art 8(1)). But before we spend too much time looking in, let’s make sure we can read and understand what we find behind the grubby windows of the family courts.