We have been concerned for some time that the publication of judgments from the Family Court by non-High Court judges seems to have dried up. In fact they haven’t, not altogether at any rate; they’re just harder to find now.
These judgments used to be kept in a separate category of the well known free database maintained by BAILII (the British and Irish Legal Information Institute). This puts judgments from the Family Court, which was established in 2014, into two separate categories:
- Judgments by High Court judges, which can be cited as precedents;
- judgments by other judges, i.e. more junior judges, which are published for the purposes of transparency, in accordance with guidance issued by the then President of the Family Division, Sir James Munby, back in 2014. He urged judges to send anonymised judgments from private hearings to BAILII so people could see what the courts were doing and thereby to promote better understanding of how the family justice system works.
Since April this year, when The National Archives (TNA) launched its new Find Case Law database, judges have all be told to send their judgments there and to stop sending them to BAILII. Instead, BAILII must now wait for the judgment to be distributed by TNA, and only then publish it on their platform. The same applies to other legal publishers, like ICLR, Lexis, Westlaw et al.
This new regime was established by the Ministry of Justice in order to expand open justice but it appears to have had the opposite effect, at least in the case of judgments from the Family Court. We flagged this up in an earlier post: The National Archives and Family Court transparency – a temporary glitch?
This new post investigates what seems to have happened since then.
Neutral citations
As we explained in the previous post, judgments by High Court judges are routinely assigned a neutral citation number, but this was not done for non-High Court judges. Instead, BAILII created its own version of a neutral citation with a ‘B’ before the number.
The new system, under which judges must instead send their judgments to TNA for distribution, was not able to apply the same workaround. Instead, judges or their clerks when sending a judgment to TNA must already have a neutral citation assigned to the case. This created a Catch-22 situation where the case could not be published without a neutral citation but could not get a neutral citation because the judge was not a High Court judge.
That problem has, we are assured, now been solved by the MoJ magically declaring that henceforth ALL judgments of the Family Court shall be allowed to claim a neutral citation, regardless of the status of the judge. And, lo and behold, some of them now do.
For example:
X v C [2022] EWFC 79, a decision of HHJ Farquhar sitting in the Financial Remedies Court in Brighton, has been published by TNA under the name X v C (Inability to meet Needs/Anonymity). That version of the name appears in the header of the PDF version but not in the main text. The neutral citation abbreviation “EWFC” indicates that it is from the (England & Wales) Family Court. It also appears on BAILII (as just X v C), but under the Family Court Decisions (High Court Judges) category, even though HHJ stands for His / Her Honour Judge, ie a circuit judge.
There’s also a case by a recorder – a part time judge who also works as a barrister or solicitor – with the neutral citation [2022] EWFC 93 which has been listed by TNA as The Father v The Mother & Anor and by BAILII as A (A Minor), Re (Child Arrangements Order). Both names are right, in a sense, because the full unabridged title of the case is:
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A CHILD “A” (a Minor)
Between : The Father Applicant
– and –
The Mother 1 st Respondent
– and –
“A” (A Child) via his guardian Ms Robertson 2 nd Respondent
There are conventions about shortening case names, including anonymised ones, but they are often frustratingly similar to other anonymised cases, using the same old initials (A, B, X mostly) and rarely giving any indication what they’re about.
This case, too, has been posted by BAILII in its Family Court Decisions (High Court Judges) category, even though the judge is a recorder.
It seems, therefore, that provided the case has a neutral citation, and is published by TNA as a Family Court case, it will be published by BAILII in the High Court judges’ category. And that explains why the non-High Court judges category has suddenly run dry. It would be helpful if BAILII recognised the new reality and simply merged the two buckets into one, at least from April 2022 onwards.
Incidentally, it appears that some cases by High Court judges are appearing in the Family Court category even though they are technically High Court Family Division cases.
So for example, this judgment by Mr Justice Hayden concerning the unfortunately case of Archie Battersbee, listed as Barts Health NHS Trust v Holly Dance [2022] EWFC 80 has a Family Court neutral citation but is clearly a judgment of the High Court. It is headed
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN OPEN COURT
Yet both TNA and BAILII have published it as a Family Court case, because of its neutral citation. It is possible that the case heading is wrong and the neutral citation correct, but since all the other judgments in the Battersbee case refer to the Family Division of the High Court it seems more likely that CRATU, the Court Recording and Transcription Unit at the Royal Courts of Justice, simply handed out the wrong neutral citation. It’s happened before. And in their enthusiasm to hand out Family Court neutral citations to non-High Court judges they seem to have accidentally handed one out for the High Court itself.
Finding cases on Find Case Law
TNA’s new platform is called Find Case Law. It was launched as an “alpha” service, which means it’s their very first go at doing the thing, not even “beta” (which is computer-speak for “still being tested”). It’s still an “alpha” service but they’ve made some improvements in how you can search and browse for cases.
To search: either use the simple one-box search on the home page, entering a case name, or some other words or phrases, or (if you have it) a citation. If you click on “More search options”, there’s a more detailed Structured Search using specific fields, like Party name, Judge name, Neutral Citation, and filters for period, court and specific keywords.
You can also browse by court, by selecting from a drop-down list of courts. These include both the Family Division of the High Court and the Family Court. But there is, of course, no distinction under the Family Court for High Court or non-High Court judges. And as we noted above, it seems that all the cases in the Family Court bucket will be republished by BAILII in their England and Wales Family Court Decisions (High Court Judges) category.
Linking to cases from our blog
Ever since we started publishing on this blog, we’ve been hot as mustard about linking to original or source content, particularly judgments. We’ve also urged newspaper journalists and other commentators to link too. This is what transparency is all about.
As a policy, we have always linked to judgments on BAILII (if they have them), or failing that the Judiciary’s own website, which tends to confine itself to cases they think the media will be interested in. The Judiciary website is also a useful source of things like practice directions or guidance, which aren’t on BAILII.
When TNA launched Find Case Law as the new “official” source of judgments we wondered whether we should switch our policy and start linking there instead. We haven’t done so yet, partly because of the problems identified and partly because of a sense that it isn’t as widely known about or accessible to our readers. BAILII has been around for more than 20 years and is the most popular free legal website. It gets over 75m page views a year. It’s easy to use, once you know how (but if not, see this article: All about BAILII – part two: how to use it ).
Moreover, everything that can be found on TNA’s site either comes from BAILII or will be published on BAILII under the new arrangements, so there would be no advantage in terms of content. Our policy is therefore to “wait and see”.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!
Featured image: by Cottonbro, via Pexels