Members of the Transparency Project have noticed that the rate at which family court judgments are sent to BAILII, and the way in which they are reported, has been inconsistent over the past two years, despite the guidance issued by the court’s President in January 2014, and his subsequent consultation in August 2014.
We are therefore pleased to report that Julie Doughty of Cardiff University’s School of Law and Politics has been awarded a small grant by the Nuffield Foundation to evaluate the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people.
Accusations of ‘secret’ courts and unaccountability generate distrust, but concerns have also been raised about risks to children of more publicity from cases in which they are involved. Courts try to achieve the right balance between individual competing interests and rights, but the law is complex and confusing. Efforts at law reform over the past decade have failed. Extreme views are expressed on both sides; it may seem that the opposing arguments are irreconcilable.
In January 2014, the President of the Family Division, Sir James Munby, issued guidance to judges across England and Wales to make more of their judgments freely available online, but there has been no publicly available monitoring or evaluation of the operation of this system. We do not know how effective or safe it is, and whether it is having any impact on the way cases are reported in the mainstream media or on professional practice.
There are many outstanding questions about what the publication of judgments on BAILII in the past two years has actually contributed to inform public debate about the operation of the courts and the other agencies involved. In other words, how far has the President’s guidance achieved tranparency, and what can we learn about what might be done differently?
It is difficult for practitioners, involved groups and the media to engage with each other without an evidence base about what is being published. There is a risk of stalemate, or ill-informed decisions being made about future steps in achieving transparency. This research will analyse patterns in the published judgments and media coverage of the family courts. We will also be obtaining the views of key stakeholders in the family justice system.
It is anticipated that a report on the outcomes of the research will be available in late autumn 2016.
I have an unusual situation in that in the High Court the Judge decided that the judgement be handed down in public but the only journalist present once he heard it was a family case walked out before the Judge started. So we had the warning not to identify parties delivered to an empty court. The judgement has not been placed on BAILLI nor have previous judgements either in the High or Court of Appeal.There are seven judgements in total , three High Court, four Court of Appeal. To be fair one has one is very recent and may be published. It makes the transparency agenda seem to be rather subjective. The Judge and I both have different reasons for wanting the judgement to be in the public domain, he may have wavered in his determination to go public. I simply want to demonstrate that the family court system, is in some parts very dysfunctional, and my children remain in an abusive situation. The welfare of the system has been paramount.
As the judgement was delivered in public can I talk about it or publish it myself or preferably get a journalist interested?
Although usually it would be wiser not to comment on a judgment if it isn’t in the public domain, eg on BAILII, provided you respect the judge’s reporting restrictions and do not identify anyone or provide information that could identify anyone who ought to remain anonymous, you can discuss the case. However, any attempt to summarise the decision must be fair and accurate, otherwise it could amount to a contempt of court.
If you propose to publish the entire judgment, then you should first obtain the consent or permission of the judge. But it would be far better for the judge to send it to BAILII where it would be officially recognised. (It is possible that the judge has decided not to publish or release it after all.)
Please also note that the Transparency Project cannot give specific advice, and nothing I say here should be interpreted as such. For a more complete guide to what you can and cannot publish, please see the Judiciary / Society of Editors official guidance here: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/family-courts-media-july2011.pdf
Thank you Paul . It seems a nonsense to me that certain judgements are published and others simply are not . So not only is there a postcode lottery in Children’s Services , Courts and support services those parents like myself who have already got a raw deal struggle to get our voice heard. I will write to the Judge’s but I would be very surprised to receive a response.
Sam,
I would suggest you write to the judge for clarification. It would be the safest option.
Lucy
Thank you Lucy . As much as I am very frustrated I do realise that there is a bigger picture and changes in the whole system is more important than individual cases.