New guidance (you can find it here – scroll down to the ninth item on the list) has been issued to family courts by the President of the Family Division, Sir Andrew McFarlane, on how judgments by judges and magistrates should be safely anonymised and published on The National Archives (TNA). Most judgments sent to TNA are also still getting published on BAILII.

This is important because the previous guidance issued by Sir James Munby in 2014 and supplemented by Sir Andrew in 2018 had largely fallen into dis-use following a surge in 2015. 

We expect there’ll be some better publicity and notification about this soon, as it potentially affects almost everyone going to family court.

The Transparency Review (item no. 2 on the list on the Judiciary site) published in October 2021 declared that all judges should aim to publish at last 10 % of their judgments each year. The Transparency Implementation Group set up a sub group (this is on the same page just under Training Materials) chaired by HHJ Madeleine Reardon, of the East London Family Court.  The sub group included representatives from the Young People’s Family Justice Board and Family Rights Group.

It quickly became apparent that it was impractical for most judges to find time to anonymise as many as 10 % of their finished cases, following a report from some focus groups of judges at different levels (see under Minutes here). It is only the High Court judges who have any administrative help to get their judgments into a suitable form for TNA. As research found back in 2017, most judges were either concerned about how they could absolutely ensure a child would not be identified, or didn’t have time, or simply didn’t see the point in publishing below High Court level. Things have moved on, and most judges do now agree with the principles of more openness about family court decisions. However, some barriers remain, especially as the TIG believes that a separate professional anonymisation unit is necessary for the numbers of published judgments to increase substantially.

This new guidance document, as Paul Magrath points out over at the ICLR blog, is partly for members of the judiciary and partly for the public. Here is a brief rundown on what the public can now expect:

• Every legal adviser to family court magistrates and every full-time judge should publish at least between 5 and 10 of their judgments each year

• Where the judgment involves a novel point of law or establishes a legal precedent; or the judge concludes that publication would be in the public interest for a fact-specific reason; and a written judgment already exists in publishable form or the judge has already ordered a transcript, It should normally be considered for publication.

• Otherwise, most types of case may be suitable, although certain types are recommended (in para 3.8)

• Details are set out on what particular information should always be removed; considered for removal; generally included; or included

• Directions on how best to anonymise individuals and de-particularise dates are given

• Separate sections relate to procedure in children cases and financial remedies cases.

The new guidance is less ambitious than the Munby guidance of 2014 where the expectation was for publication on BAILII to become routine for circuit judges, as well as High Court judges. However, it now extends to district judges and magistrates and to financial cases.

Comment

Everyone involved in family court cases needs to be aware that judgments are now more likely to appear (anonymised) online than in the previous few years. It follows that more cases are going to feature in the mainstream media because journalists will have more to scan on TNA/BAILII and this will in turn lead to more discussion on social media.

We think it’s essential for lawyers, social workers and others who are advising children and parties to become familiar with this guidance so they are able to discuss any implications for the families and professionals involved. They may wish to make arguments either for or against publication, based on the legal framework summarised in the guidance.

Image: thanks to Finn Hackshaw on Unsplash

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