‘Family Law’ publishes a regular blog series by The Transparency Project. This post originally appeared in July 2017 at [2017] Fam Law 778. It is reproduced here with kind permission of the publisher.

It is now nearly 3 years since Sir James Munby, President of the Family Division and Court of Protection consulted on his Transparency Guidance to judges, issued in January 2014. More recently, he indicated that he would consider relevant ongoing research, before deciding how to take matters forward. Research on publicity and privacy in the family courts, in cases involving children has been undertaken by the Association of Lawyers for Children and by Cardiff University School of Law and Politics. In this month’s column, we reflect on the guidance, 3 years on, and messages from that research.

Prior to the guidance, some High Court judges in the Family Division often sent authorised copies of their judgments to the freely accessible website, BAILII, but there was no mechanism nor expectation for cases at circuit judge level to appear. The guidance stated its aim that, from February 2014, there was to be ‘an immediate and significant change in practice’ in publicising the work of the family courts. High Court judges and circuit judges were required to send anonymised copies of their judgments to BAILII in three types of situation. First, if the judge thought it was in the public interest, secondly if the case fell into certain categories and thirdly if a party or the media in attendance requested publication and the judge agreed. The categories included cases on care orders, placement orders and findings of fact. This would have been an enormous number, but the guidance required publication only where there was a written or transcribed judgment in existence. Even so, these numbers would be very high. We understand that it is increasingly common for transcriptions to be requested and ordered. Although the Ministry of Justice does not publish statistics that can be matched directly to these categories, the Cardiff research, described below, has shown that compliance with the guidance is variable. Some judges never follow the guidance. Possible reasons for the variations include concerns about safe anonymisation, lack of time, and retaining a more traditional approach to privacy and delivering judgments intended for the parties only.

The President subsequently asked for views on how the guidance was working, and whether other changes might be introduced, such as improved listing systems that would help the media know what cases were about, and/or whether some cases should be held in public. The Transparency Project, amongst others, responded to his questions, but there has been no further action on the guidance itself. We collated as many responses as we could find published after the closing date in October 2014, and posted these on our
website. They can be found at www.transparencyproject.org.uk/transparency-consultation-responses-gathered/ 1 January 2015.

In 2016, a pilot scheme began in the Court of Protection, whereby almost all cases are held in public, but with reporting restrictions to protect parties’ identities. We do not know if the pilot was intended as a precursor to something similar in the Family Court. Although no assessment of the pilot has been published, it has been extended in duration until 31 August this year. Transparency Project members who appear
professionally in the Court of Protection report that attendance by anyone not involved in a case is very rare.

Some practitioners are finding the task of unnecessary anonymisation burdensome. One of our members, Paul Magrath, has attended as a member of the public and written about this experience for our blog.

A Review of anonymised judgments on BAILII (J Brophy, K Perry and K Harrison, 2015) published by the Association of Lawyers for Children (ALC) and the National Youth Advocacy Service (NYAS) raised specific concerns about the level of risk of jigsaw identification from the amount of detail that remains in judgments on BAILII and about the intrusive nature of some of this detail. Eight young people reviewed 21 judgments and, amongst other observations, found unnecessary details that could potentially identify children in seven of the cases. These features included children’s precise dates of birth and names of towns (although the family may no longer have lived there). Their view, and that of the report writers, was that this created an unnecessarily high risk of jigsaw identification. The review group also found that cross referencing the judgments with online media content and social media increased the risk of identification and, in one case, found that a grandparent of a child involved in a case in their sample had openly named him on social media.

This piece of research now seems to be regularly mis-reported as the review team literally identifying seven children from BAILII, but identifying individuals was neither an aim, nor an outcome of that project. We have explained this further at www.transparencyproject.org.uk/accuracy-of-reporting-not-just-for-journalists/ 8 May 2017.

Speaking at The Transparency Project launch of its Media Guide on 5 April 2017, Sir Peter Jackson mentioned that although one of his judgments had been criticised in the study, the children involved in the case had been positive about it being published. This is an admirable example of a judge engaging with the views of children at the heart of the case (see further ‘An open question’ at p 701 above).

In August 2016, the ALC published Anonymisation and avoidance of the identification of children and the treatment of explicit descriptions of the sexual abuse of children in judgments intended for the public arena: judicial guidance (J Brophy, 2016) following a project undertaken by Dr Julia Brophy and funded by the Nuffield Foundation. Dr Brophy investigated whether new guidance could be developed to improve
anonymisation practices without loss of key information. She also explored equivalent guidance in similar jurisdictions and information data on the volume of judgments published and cost data available. This report produced two checklists which can be used when preparing judgments for publication. The first aims to reduce the risks of identification of children and the second to reduce unnecessarily graphic and intrusive details of abuse. In October, the President addressed ‘uncertainty about the status’ of the report, arising from it being entitled ‘guidance’ whereas it was ‘a valuable piece of research and analysis’ which he was at that time considering as part of any decision he may make about developing his 2014 guidance. In at least one high-profile case, Re J (A Minor) [2016] EWHC 2595 (Fam), submissions were made by counsel for a summary only to appear on the public record, instead of the approved judgment. This was based on recommendations in the ALC report, but was rejected by Hayden J as disproportionate when balancing the respective Arts 8 and 10 interests in that particular case.

Transparency and the publication of family court judgments (J Doughty, A Twaite and P Magrath, 2017), also funded by the Nuffield Foundation, aimed to evaluate the responses to the President’s guidance by the courts, other stakeholders in the family justice system, and the media. The research team compiled a database of judgments that had been published under the 2014 guidance for 2 years after it was issued; finding a total of 837 judgments that appeared to fit the criteria. The study also considered mainstream media coverage of these cases, and the views of journalists on their use of BAILII. The views and experiences of family court judges and representatives of other stakeholder groups in the family justice system about the effects of the 2014 guidance and publication were also sought.

The researchers found that some circuit judges did not regularly publish their judgments, and some published none at all. Only 27 judges, including 17 circuit judges and 10 High Court judges, published more than 10 judgments in the 2-year period from which the sample was drawn. There were significant variations in the numbers of judgments published from different courts. Although Ministry of Justice statistics are not easy to follow, they, along with figures from England published by Cafcass, give some indication of how busy different courts are. This did not necessarily relate to the number of judgments publicly available. There were also variations in identifying local authorities and individual professional witnesses, and different reasons for doing so. Judgments published on BAILII cannot therefore present a full picture of practice over England and Wales. As one example, almost all judgments that appear on BAILII from courts in Wales are given by only
one judge.

A survey of judges was undertaken, with the support of the President, although only 17 responded. This revealed that most judges had serious concerns about the risk of identification of children, with those at both High Court and circuit level saying that circuit judges did not have the necessary resources to ensure safe anonymisation. Other reasons given by some judges who avoided publication was simply lack of time, or not seeing the relevance of the guidance to them. There is a traditional view amongst some lawyers of the function of court reporting being either as official law reports on points of law, as part of the doctrine of precedent, or journalists attending to find newsworthy copy. Since April 2009, accredited journalists have been able to attend family court hearings, but for commercial reasons, court reporting has generally dropped.

It is perhaps this failure of the 2009 reforms to resolve accusations of ‘secret justice’ that prompted the President to turn to BAILII as the answer and as a source of public legal education about family justice.

The Cardiff research found that some journalists thought BAILII very useful and consulted it regularly, but only a minority of online reports actually linked to the judgment itself. This is a constant source of irritation to us at The Transparency Project, especially alongside the baffling habit of some papers of just referring to BAILII as ‘a legal website’! Another concern identified was the lack of any HMCTS guide about BAILII or publicity in general for litigants, nor any policies for social workers in local authorities or Cafcass, or children’s lawyers, as to what to tell young people.

The research concludes that publishing on BAILII generally works well at High Court level, where most cases of interest to the media will be heard, but at circuit judge level, the burden of preparing judgments for publication, and associated concerns about identification of children, families and practitioners, is not evenly spread. The rate of publication on BAILII is falling and these findings might further discourage busy judges from seeing the guidance as a priority. As noted by Sir Peter Jackson and Robert George (above at pp 701 and 710), the Cardiff research makes a number of short-term recommendations and suggests a possible, more fairly distributed, alternative to the current system.

Privacy and publicity are also issues in family court cases that do not involve children, as discussed by Suzanne Kingston and Gemma Thomas above at p 755. There is a range of views about the extent to which an adult seeking a divorce has to concede part of their ECHR Art 8 rights. We hope that any revised judicial guidance will also clarify the balanced approach to be taken here. In all types of case, there is an unarguable need for clear up-to-date advice for litigants, practitioners and children affected.

Alice Twaite
Member of The Transparency Project