The drive over the last decade toward greater Family Court transparency has been hugely dependent on the rapid and efficient publication of judgments by BAILII. So when, last year, it was announced that The National Archives would be taking over the primary function of archiving and distributing court judgments in England and Wales, it was assumed this would only enhance transparency.
Yet the switchover to the new service since its launch earlier this year has resulted in a massive reduction in the publication of Family Court judgments, albeit largely for reasons outside The National Archives’ control.
This post explains why this problem has arisen and what is being done about it. But first we need to explain a bit more about the background.
Shortly before the Family Court was launched in 2014, the then President of the Family Division, Sir James Munby, said in a speech to the Society of Editors that he was “determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice”.
The newly created Family Court replaced and combined the Family Proceedings Court (Magistrates) and the family jurisdiction of the County Court that heard routine family cases. Soon afterwards, Sir James issued Practice Guidance on transparency in which he urged family judges in the Family Court, at all levels of jurisdiction, to publish (with suitable redaction and anonymisation) judgments from private hearings for the purpose of opening up the workings of the family courts to public scrutiny. These cases were not necessarily legal precedents, but were to be published in order to shine a light into an area of the justice system that had been accused of operating in secret and covering up mistakes by experts and social workers, and even by the courts themselves.
When issuing his transparency guidance, Sir James indicated that the judgments which were then to be published in far greater numbers were to be sent to the British and Irish Legal Information Institute, or BAILII. This popular and widely used resource was founded on the principles of free public access to legal information including, most obviously, case law. It was and still is mainly financed as a charity with private and corporate donations, but from 2010 [?] onwards it was also supported under a contract with the Ministry of Justice, on the basis that it would act as an official repository of senior court judgments. However, importantly (for reasons that will become clear below), BAILII in fact published much more than just senior court judgments – it also provided a vehicle for publication of the judgments of ‘inferior’ courts, which for jurisdictions such as the Family Court, which operates in private and with restrictions on reporting, is one of the primary mechanisms for achieving a modicum of transparency.
All judgments published on the BAILII website have a unique citation reference, known as a “neutral citation” because it is assigned by the court, rather than by a particular publisher. The system of neutral citations was developed in particular to deal with online publication where there wasn’t a printed page reference to cite. Each case is identified by the year, an abbreviation representing the court, and a case number. In the case of the Family Court, the abbreviation is EWFC, standing for England and Wales Family Court. A typical neutral citation from the Family Court would thus read:  EWFC 123.
But here’s the catch. Because neutral citations were only supposed to be assigned for cases that were officially capable of being legally binding precedents, they were NOT assigned, or even allowed to be assigned, to cases in the Family Court by non-High Court judges. So decisions of circuit judges or district judges could be published, under Sir James Munby’s transparency guidance, but they could not be given an official neutral citation.
If the judgments were published by BAILII, that didn’t matter. BAILII had a method of assigning its own version of “soft” neutral citation, adding a “B” before the case number. So if BAILII received a judgment from a non-High Court judge in the Family Court, it would assign its own version of a neutral citation to it, in the form  EWFC B124. Even if you didn’t know what the B meant, you could still access the case using a standard citation. Other publishers soon got used to the idea and used the citation when reprinting or referring to the case.
Although enthusiasm for publishing judgments varied from judge to judge, partly because the process of anonymising them and redacting any identifying details is burdensome, this system worked well.
That’s not to say there weren’t occasional glitches. Some published judgments inevitably contained anonymisation errors, which would be picked up by eagle-eyed readers, including members of the Transparency Project. Sir James Munby issued a clear instruction (see Re X (A Child) (No 2)  EWHC 1668 (Fam)) that in such an event, the decision whether to remove or revise the judgment must be for the judiciary, not BAILII, but since few readers knew how to contact the judge directly, the notification was usually passed on via BAILII (and indeed quite often via The Transparency Project as well).
In 2021 the Ministry of Justice announced that, from April 2022, it would end its contract with BAILII for the publication of court judgments in England and Wales, in favour of a new service to be provided by The National Archives. As initially advertised, the plan was to create a “new home” for court judgments, “increasing transparency” and providing a “boost for open justice”.
Although BAILII would continue to publish the judgments of England and Wales, alongside content from other parts of the United Kingdom and elsewhere, the plan was for The National Archives to manage the process of collecting and distributing them. One of the statutory purposes of The National Archives is to keep an archive of “court records” (see the Public Records Act 1958, s 8). Now it would become their official publisher as well, alongside the legislation (Statutes and Statutory Instruments) which it also publishes, via www.legislation.gov.uk.
That meant that unless and until The National Archives had published a case, it could not be published anywhere else. Judges were told to stop sending their judgments to BAILII, as they had done routinely for more than 20 years, and instead to send them to The National Archives.
It was as though a pipeline had been diverted, with one tap switched off and another switched on. But unfortunately, it didn’t turn out to be quite so simple. In some areas the flow has reduced to barely a trickle.
When The National Archives’ new website was launched in April 2022, it already had a large body of content dating back nearly 20 years, which had been copied over from BAILII. But it struggled initially to publish new judgments, as and when they were handed down by the courts. One of the reasons for the delay was the unfamiliarity of the new system for the judges or their clerks who were supposed to use it.
When sending judgments to BAILII and other publishers or media outlets, judges or their clerks just had to send it as a Word document attached to an email. The new system involved them setting up an account with a portal created by The National Archives and completing an online form for each new case.
In addition, before they could send any judgment via this portal, they needed first to have been assigned a neutral citation.
Neutral citations are assigned using a database called the Neutral Citation Allocation System (NCAS) which is managed by CRATU – which sounds like a Cold War spy organisation but is actually the Court Recording and Transcription Unit at the Royal Courts of Justice. CRATU would hand out neutral citations to any High Court judge or above, but not to a non-High Court judge. As we have seen, this did not matter if the judge was sending the case to BAILII, because BAILII just assigned its own “B” citation instead.
When non-High Court judges in the Family Court wanted to send judgments to The National Archives, this was the problem they ran into. As mentioned above, circuit judges in the Family Court, as well as High Court judges, have been expected to send their judgments for publication since early 2014. The problem was not, and should not be, insoluble. The solution, which was obvious from the start, is for CRATU to give ANY judge in the Family Court a neutral citation for that court (EWFC) regardless of their seniority as a judge. The question whether the judgment could be cited as a precedent could be determined otherwise than by the form of its citation.
However, the failure to anticipate this issue before the new website was launched has resulted in a temporary blockage in the publication of Family Court judgments. Cases by High Court judges are appearing more or less as before, but the number of judgments by non-High Court judges is currently zero.
In addition, a number of the earlier judgments by non-High Court judges that were published on BAILII (and are still there) have not been copied over to The National Archives. Moreover, even for those that have been copied, they are not as useful. BAILII had adopted a practice of linking judgments by lower courts with the later judgments of higher courts on appeal from the lower decision, which enabled readers to see the case in its full context. That hasn’t been replicated on The National Archives site.
It’s really encouraging to see the team at TNA have put in place a system of case checking, carried out by a team of 3 full time staff (somewhat confusingly called legal editor, though they don’t really edit) who read every judgment before publication to check it is ready. We understand that they perform tasks such as checking a judgment against any anonymity order. In civil proceedings where anonymity is provided via a specific order this makes the task of checking anonymisation comparatively straightforward. However, in Family Court cases there will typically be no anonymity order, because anonymity is usually a statutory entitlement, may be necessary for multiple individuals, and where achieving the objective may be complex and nuanced. At present it does not appear that the editorial team have any particular experience of this sort of checking, Nor will this internal system be all that is needed in terms of anonymisation – which will remain the responsibility of judges and will need to be thoroughly checked before a judgment is even sent to TNA. The TNA checks are only ever a last resort safety fail. First line support for family court judges is still essential if they are going to be expected to publish anything like 10% of judgments in safely anonymised form. It seems likely that support will be from some resource quite separate to TNA, who have enough on their plates.
TNA have confirmed to us that, in the unlikely event that an anonymisation error is identified in a judgment they have published, this can be reported to them via their email@example.com email address. So far, we’ve not had cause to test out the speed at which such takedown requests are processed, partly because of the limited number of judgments currently being published.
Workloads and backlogs
Workloads and backlogs are familiar words in the justice system. They apply also to the TNA team. We have found the team to be candid about the fact that their project is in the early stages of an improvement journey. They do not regard the current arrangements as a finished product. However, as a result of the arrangements put in place by the MoJ, they are the only ‘product’ currently available through which family court transparency via judgment publication can be achieved.
We understand that there was a mismatch in expectations between the service BAILII was contracted to provide, the far broader service they actually provided and which elements of the BAILII service TNA were expected to take on, replicate or improve. We (and we suspect many others) had expected and understood that pretty much all that BAILII previously published would continue to be published post April 2022 via TNA, including family court judgments by the full range of tiers of judge. TNA on the other hand, were not (initially at least) contracted to or expecting to provide this service and are not therefore resourced for it, though they appear to be working towards it now.
On a number of fronts (not just the Family Court), it appears that publication is a bigger project than the TNA team understood it to be and, as they adjust expectations and priorities, there is going to be an uncomfortable period where transparency of the Family Court is diminished rather than maintained, let alone improved. This applies both to transposing the archive of pre April 2022 lower tier family court judgments to TNA, and in relation to the accumulating pile of post April 2022 judgments awaiting a resolution to the neutral citation problem.
However this has come about it, it is lamentable, at a time when the President of the Family Division has committed to greater transparency in his October 2021 Transparency Report, when the importance of the Open Justice Principle has been affirmed in Guidance issued by the Senior Judiciary on Remote Hearings, and when family court judges are being told that the expectation (or at least the aspiration) is will be that they are to publish 10% of all judgments. At the moment they can publish 0% of judgments. Either TNA need more resources to try to remedy these issues quickly, or perhaps BAILII could be asked to resume publication of family court judgments in the meantime.
Quite how all this will impact on the plans and progress of the Transparency Implementation Group is anyone’s guess, but it certainly isn’t going to assist in keeping up or building momentum toward the vision in the President’s Review.
Feature pic: seeing eye by Valerie Everett on Flickr (creative commons – thanks!)
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