There is an assumption in some parts of the media that the Family Courts are deliberately operating in a secretive manner in order to cover up the sinister conduct of social workers, doctors, and local authorities, and that is why hearings are held in private (ie in “secret”) and judgments are not released or only in heavily redacted form.
The recent transparency agenda promoted by Sir James Munby, President of the Family Division, has done something to address this. Old habits die hard, however, and the idea that there is some sort of conspiracy remains the default position for some journalists. They seem reluctant to believe that missing information has not merely been accidentally omitted but must have been intentionally suppressed.
This week provided a good example.
A case appeared on the BAILII legal website in which the parties were identified only by initials, and the judge’s name appeared to be missing. It is not unusual for parties’ names to be anonymised in this way, to protect the interests of children or other vulnerable parties involved in the case, but it is certainly unusual not to name or identify the judge. This fact was noted by a journalist working for the Press Association and circulated as a news story:
The identities of everyone involved in a family court case have been kept secret – including the identity of the judge.
Detail of the case has emerged in a written ruling published on a legal website.
It was duly picked up by the Telegraph newspaper, in a story bylined “by Agency”, which reported that
Judicial officials have revealed the identity of a judge whose name was missing from a written family court ruling she had made.
The identities of everyone involved in the case had been kept secret in a highly-unusual move.
Parties were listed as “RBC”, “R” & “J-M”, lawyers were not named and there was no indication of the identity of the judge.
With absolute predictability, a quote was obtained from “Liberal Democrat MP John Hemming,” described as “an MP who campaigns for improvements in family justice”, who said:
“I understand the need to protect children in family court cases. But not identifying the judge is taking anonymisation a step too far, I think.”
This is, in fact, on the tame side for Mr Hemming, who can usually be relied upon to complain vociferously about “secret” hearings “behind closed doors” etc etc. In fact, he even went so far on this occasion to tell the PA (though this was not quoted in the Telegraph) that
“I presume it’s just an error – and I hope it will be put right.”
In fact there was nothing to put right. A quick check with BAILII confirmed that the name never had been suppressed. It had simply been left off the HTML version of the judgment (the one you see first on the website). It was and always had been on the original transcript in RTF format which the judge had sent and which you can download with a simple click of the mouse and print out. Something neither the Press Association nor the Telegraph thought of bothering to do. Or any of the other reporters of the story, including (rather surprisingly) law firm Marilyn Stowe’s blog.
As the man from BAILII told me:
“So much for investigative journalism.”
Instead, as the Telegraph reported, the matter was referred to the Judicial Office who duly identified the judge as HHJ Eleanor Owens. The HTML version of the case has now been corrected. You can read it here: RBC v R & J-M  EWFC B174
It’s important to remember that BAILII (which stands for the British and Irish Legal Information Institute) is a charity supported almost entirely by donations from law firms, barristers’ chambers and academic institutions. Although it receives a small amount of funding from the government (via the Ministry of Justice) this is probably less than the amount spent on publishing a far smaller number of judgments, sentencing remarks, judges’ speeches and procedural guidance on the MoJ’s own nattily redesigned (and harder to use) Courts and Tribunals Judiciary website.
Moreover, BAILII does not purport to exercise any kind of editorial selection or control over content. It just puts up judgments which have been given in open court or released for publication, in the form sent to them by judges or their clerks. If and when judges revise or approve their judgments for publication, these will be substituted for the original handed down version if and when sent to BAILII for that purpose. As they point out on their Disclaimers page:
(e) Judgments published on BAILII may not be the authentic version of the judgment.
(i) The HTML version is not the authentic version of the judgment. For many judgments of the English courts the Approved Judgment in .rtf format is also available to be downloaded from BAILII.
If notified of an error in a judgment, providing the notification comes from a reliable source, BAILII will correct or if necessary remove content. On the whole, especially if there’s the slightest doubt about the publication of something, they tend to err on the side of caution. But they’re not an official government agency and, run on a shoestring, they don’t have the resources actively to check everything.
On this occasion, it seems John Hemming MP was right in his assumption that the omission of the judge’s name was a mere slip, and did not justify getting steamed up about, despite the media’s efforts to turn it into a “story”.