Radio 4 covered the topic of transparency last week, following publication of research by Cardiff University about the impact of the 2014 guidance on publication of judgments. Both Chair Lucy Reed and Dr Doughty (one of the researchers and a member of TP) featured.

You can listen to the clip on iplayer here, but we’ve also typed out a transcript for ease of reference (below).

You can read our blog post about the actual research here.

Transcript of R4 Today piece on Transparency on 24 March 2017

Sarah Montague

It’s 3 years since the most senior judge in the family court said he’d bring in the glare of publicity to restore the public’s confidence in family cases and avoid miscarriages of justice

And this week we have the first evaluation on how the transparency initiative has worked

Sanchia Berg has been looking at it.

Sanchia Berg

In 2014 we told the story of a young boy in Lincolnshire whose mother died.  The local authority wanted him to be adopted but the Judge in the local family court said that social workers had been visibly biased.  The boy should live with his grandparents.  We could only report this because the judgment had been published online.  The grandmother, unsurprisingly, was happy about that.

Grandmother

We were pleased because we ended up getting us grandson back.  In our case social services done wrong.  Publishing the judgment meant they couldn’t do it again and they’ve had to be more careful since

Sanchia Berg

Her words are spoken by an actor because in care cases like this people have to be anonymised to protect the children involved.  It helps explain why 3 years after strong  guidance from the most senior judge in the family courts relatively few judgments are being published online on the legal website Bailii.  A new evaluation funded by the Nuffield Foundation found only 837 judgments were released in 2014 and 2015 although there were over 25,000 care applications over that period.

Dr Julie Doughty of Cardiff University is the lead author of the new research.

Dr Julie Doughty

Even Judges who are very enthusiastic about the guidance and who are keen on publishing judgments because they feel that they should be open to accountability and scrutiny – even those Judges are struggling terribly to find the time and the resources to publish those judgments.  An ideal picture of having all the care cases available for us all to scrutinise is I just think is unrealistic now.

Sanchia Berg

In some areas South East Wales, Devon and Wolverhampton no judgments at all were published in 2014 and 2015 though MOJ figures suggest they had many cases.  Judges elsewhere published more.

Last year 17,000 families contacted the Family Rights Group the charity that helps families involved in care cases.  I showed the new report to their Chief Executive,  Cathy Ashley.

Cathy Ashley

I think it is disappointing. One of the things that publication of judgments does is help the public including those caught up in the family justice system to understand what’s involved and arguably to have greater faith in it.

Sanchia Berg

The charity is currently trying to help a grandmother fighting to keep her grandson just like the Lincolnshire family I spoke to two years ago. She’s lost her case in the lower court.  She’s trying to appeal but that is difficult.  In this case no judgment has been published.

Cathy Ashley

The grandmother feels that a major injustice has taken place.  It looks like that is the case but of course without the published judgment we can’t properly evaluate that and therefore she’s left in this really invidious position.

Sarah Montague

Lucy Reed is the barrister and founder of the Transparency Project and is in Bristol and in Chelmsford Dr Julia Brophy  who is an independent Research Consultant and is  with the Association of Lawyers for Children.

Now Lucy Reed given that you were at the start of this whole project are you disappointed with the way it’s worked or not worked?

Lucy Reed

Well I think there’s some level of disappointment but to be quite frank the conclusions that are reached in the report don’t come as a particular surprise either to us at the Transparency Project or probably to many of the practitioners working in the system because we know that there’s been limited success probably primarily due to resources.

Sarah Montague

For what reason? Where are the resources needed?

Lucy Reed

There is alongside the initiative to publish more judgments there has been a continuing quite significant rise in the volume of work that family judges are having to deal with, particularly in care cases, but across the board.  So whereas in 2005 – 2006 there were about 6,000 – 7,000 care cases coming through the system, the estimate for this year is something like 14-15,000.  The President of the Family Division has said there is a crisis in terms of the capacity of the court to deal with its primary job of making good decisions for children and for families so there’s enormous pressure on the Judges and the publication of judgments and the care that is needed for anonymising those judgments properly before they go out is quite a significant additional burden for those judges.

Sarah Montague

And Dr Julia Brophy is the prize of publishing worth more funding?

Dr Julia Brophy

That’s a tricky one.  I think the issue is – is publishing judgments good for children and I think the answer for that  for the moment has to be no.  For some children in some circumstances it is not good and without attention to the anonymization of judgments it puts a significant proportion of children at risk – at risk of identification, risk of further abuse in communities

Sarah Montague

And this is because – you did some research into how easy it was to find out what had happened in a court case?

Dr Julia Brophy

We did.  We looked at a sample of judgments and we looked at them with a group of experts.  These are young people who have been through proceedings.  And we were surprised to find how easy it is to use factors in the case to identify children through the process of jigsaw identification.

Sarah Montague

You mean you analyse the name but if you know of the place or some other fact you can google it and come up with some answers and identify people

Dr Julia Brophy

Broadly yes.  There are five features in judgments which children identified allowed the subject child in the proceedings to be identified and when those features are put together it allows people who read the judgment to be able to identify the location where the child lives through as I’ve said through five factors in cases which give both the location – the geographical location – but in some senses allows that to be narrowed down in relation to the  town, in relation to the school the child is attending and if you add to that factors such as the date of birth you can even identify  the year in which that child is attending school.

Sarah Montague

So just briefly are you suggesting that there are cases where children have been harmed as a result of the publicity and the transparency?

Dr Julia Brophy

Yes

Sarah Montague

And Lucy Reed that is quite hard to respond to?

Lucy Reed

Well it is but I’m not sure that I’ve seen direct evidence of individual children being harmed.  Dr Brophy quite rightly raises a legitimate concern and an area of risk and we’ve certainly at the Transparency Project identified cases where anonymization has failed and we’ve drawn that to the attention on a number of occasions to the Judges who have been involved and the judgments have either been taken down or amended.  But what I haven’t seen is direct evidence of specific families or children being harmed.  That doesn’t mean that it’s not a concern. It is a concern.  But we’ve got to balance that against the really important need to give the public information about what we’re doing.  It’s about publishing information but publishing it in a safe and sensible way

Sarah Montague

Well exactly, Dr Brophy if you get it right, if it’s done properly is it not an advantage to be doing it?

Dr Julia Brophy

I think – two things – I think one of the problems with some of the issues that Lucy is talking about is that you’ve got to look in the right place to know where damage is happening and at the moment asking Judges about it and asking lawyers about it is not looking in the right place.  What you have to do is ask young people who’ve been through proceedings about how information is downloaded and shared amongst other young people and the risk that puts children to in the community. So the anonymization practice is really really important and I think until we get that right it would be very difficult to move forward.  Clearly people care about transparency in the family justice system and that is important but it has to be a balance and I don’t think the public and indeed many parents in the community would be in favour of moves which put already vulnerable children at further risk.