This blog post originally appeared as the Transparency Project’s monthly column in Family Law for February 2020 at Family  Fam Law 265.
The President has published some new ‘Transparency Templates’, which are draft orders for use in High Court Appeals from Children Act matters in the Family Court and for Financial Remedy appeals from the Family Court where such a case involves children. Those templates sit alongside new FPR 2010, r 30.12A and PD 30B, which clarified the position vis a vis such appeals and whether and when they were to be held in public (as similar appeals would have been when the appellate route was directly to the Court of Appeal).
The position as clarified is that ‘ordinarily’ High Court appeal hearings will be in public; and it makes detailed arrangements for documents about a case to be passed on to media representatives (though not at present to legal bloggers, who seem to have slipped off the agenda here – the minutes of the FPR Committee suggest this was inadvertent rather than intentional).
As with the situation in the Court of Appeal there will usually be no anonymisation in financial remedy cases that do not involve children (remember Norman v Norman  EWCA Civ 49,  2 FCR 270,  1 FLR 426). The new templates are designed to assist where it is necessary to impose some modest restriction whilst allowing a hearing to continue in public (identity of party or child for example).
The templates can be found on the judiciary site, confusingly labelled as ‘Financial Remedy Transparency Order Templates’, with a publication date of 2 December 2019. They flag the potential for any person (other than a party) to be excluded from a hearing if they refuse a request to sign a document recording their attendance and that they are aware of the terms of the order.
Practitioners would be wise to consider these templates when issuing an appeal and to consider providing a draft order to the court at the earliest opportunity, as these orders are clearly intended to be issued alongside directions for an oral hearing.
In his December 2019 ‘View’ Sir Andrew McFarlane confirms that the overarching transparency review that he announced in May is now up and running and the panel have recently met. The plan is to call for evidence in January, receive said evidence in writing by the end of February, take some oral evidence and report in May 2020. We encourage readers to contribute to the review.
FPR Rules Committee Minutes
After a long hiatus in the publication of any minutes from this important committee, and following intervention from The Transparency Project, the backlog of minutes for the last year or so has now been published. Whilst we anticipate not many readers of this journal will have time to regularly peruse the minutes of the committee, they do contain a wealth of important information about the extensive work of the committee, and what rule revisions or possible pilots are under consideration – for example the minutes tell us that all feedback regarding the legal blogging pilot has been positive to date. More generally, the minutes are a reminder of how much the committee has on its plate and how onerous membership of it must be.
Judgments of interest
We note in particular the publication of a trio of judgments from Baker J (as he was at the time, sitting as a judge of first instance), concerning a case of suspected inflicted head injury, where the Family Court’s findings of infliction by the father are diametrically opposed to a jury’s conviction of the mother for inflicting the same injuries. Baker J’s findings were made prior to the criminal trial and confirmed following a re-hearing subsequent to the criminal trial.
In the third judgment, dealing with the mother’s application for publication and the naming of the parents, Baker J refers expressly to the 2014 Publication of Judgments Guidance issued by the former President Sir James Munby, affirming we think its continuing application and relevance. Baker J gave three reasons for publication:
’11. First, this case involves serious and life-changing injuries sustained by a child in the care of his parents. Although the law requires care proceedings to be held in private, it is in the public interest for judgments about such cases to be published wherever possible.’
He makes clear that the publication of the first judgment was delayed in order to avoid the risk of prejudice to the criminal proceedings. He goes on:
’12. Secondly, the facts of this case have already received very substantial publicity through press and broadcast reporting of the criminal trial . . .Save for the child’s name, the facts of the case are in the public domain. Accordingly, anyone who has read the reports of the criminal trial would recognise the case when reading the family court judgments.’
He rejected arguments by the father that the adult names should not be published – put shortly, that ship had sailed with the criminal trial:
’13. There is, however, a third reason for publishing the unredacted judgments in this case. The fact that the family court and the Crown Court have reached different conclusions as to the perpetrator of the head injury sustained by the child is itself a matter of public interest. I do not propose to make any further comment about this outcome. I have, however, reached the very clear conclusion that it is not for this court to restrict public knowledge of this issue, or inhibit discussion of the wider consequences.’
Baker J goes on to say:
’14. On behalf of the Press Association, Mr Farmer puts forward a number of more extensive arguments. He contends that publication would broaden public understanding of how the system works and would be in line with the drive to make the family courts more transparent. In my judgment, however, it would not be right to see the publication of these judgments as heralding any wider relaxation on the publication of information relating to family proceedings. That is a matter for the President of the Family Division and, ultimately, for Parliament. My decision on the publication of the judgments is intended to comply with the existing Practice Guidance, balancing the respective ECHR rights as they arise in the very unusual circumstances of this case.’
Lucy Reed wrote about this case on the Transparency Project blog in ‘When verdicts and findings collide’ (13 December 2019). See: Plymouth City Council v Wilkins and Others  EWFC 70.
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Practising writing for a non-lawyer audience is a different technique from writing aimed at a professional audience, but plain English communication is at the heart of effective advocacy and writing – so these are skills you will find yourself using in your daily practice, both when talking to judges and your own clients.
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