Amidst the attention being paid to the courts in the Reporting Pilot, especially the series of broadcasts on the BBC Today programme by Sanchia Berg recently, other outputs from the President’s Transparency Implementation Group (TIG) have been slowly emerging.

One of the President’s aims was to increase the numbers of family court judgments published on The National Archives (also still appearing on BAILII) from the very low publication rate in recent years. After the former President, Sir James Munby, issued his publication guidance to judges in early 2014, more cases did appear for about two years, but numbers subsequently dropped again. An evaluation by Cardiff University, funded by the Nuffield Foundation, found that a major barrier to complying with the guidance was judges’ concern about their ability to effective anonymise judgments to ensure children would not be identifiable from them.

In the Transparency Review report , Sir Andrew said that he wanted all judges to work toward publishing 10 per cent of their judgments. This may sound low, but it’s a considerably higher number that at present. He also proposed extending the requirement to district judges, who deal with most private law and some public law cases.

In a recently published report, discussed below, we can hear direct from some judges at different levels their views of why so few cases are being published. We can also read about what is currently being recommended as a realistic way forward.

The draft publication guidance

Tucked away amongst the pages on the Judiciary website, you can find a ‘Publication group guidance’ link here which brings up a pdf document: ‘Transparency Implementation Group Anonymisation and Publication Subgroup Draft Publication Guidance for Judges‘. This report (written last July) explains the work of the TIG Publication and Anonymisation Sub-group. It includes some new draft guidance on publishing, informed by discussion amongst the stakeholders represented in the TIG and by a focus group exercise.

The group collected judges’ views and experiences of publication by setting up six focus groups which met by Zoom and responded to questions designed to stimulate discussions amongst the judges. One of the groups was of legal advisers to magistrates. The participants were not claimed to be wholly representative groups of the judiciary – a study at that level would have been lengthy and expensive, and everyone on the TIG is doing this on top of their day job, with no research budget. However, focus groups are recognised as an effective method of gathering diverse perspectives on an issue.

What did the judges say about publication?

The circuit judges, to whom the 2014 guidance applies, were aware of it, but few had actually published any judgments. The High Court judges were more familiar with the guidance and tended to always publish, unless there was a reason not to. We would mention here that High Court judges have more administrative support than circuit judges and district judges.

Only a very small number of the district judges (who don’t come within the 2014 guidance but occasionally a district judge will publish) had considered or gone ahead with publication. Apart from the High Court judges and magistrates, oral judgments were far more common than written judgments. It is worth quoting most of this paragraph, summing up the views of district judges who participated in this research:

‘The vast majority of District Judges described giving oral judgments only. Some indicated that they wrote a small proportion of their judgments if time allowed. It was emphasised that the relentless workload and quick decision making
required of District Judges simply did not allow for written judgments on a routine basis. One participant prioritised the parties having a decision on the day, stating that if a judgment was to be given with publication in mind, this would require polishing and a process of “putting me into it”. The judgment would have to be expressed differently and it would end up taking longer. One participant stated that “When I read about a proposal of 10% of all judgments being published, I feel a sense of despair, like it’s the final thing that might tip us over the edge”. Others agreed with this sentiment. It is noted that the additional pressures that publication would bring to District Judges were echoed by both Circuit Judges and High Court Judges.’

Even amongst the High Court judges, some judgments were also given ex tempore (i.e. read out at the time) and not put into written form for the parties. There was a clear view amongst the participants that composing a judgment was time consuming, in an environment where no-one had any spare time. As one circuit judge put it:

‘I don’t have time to write them. The short pithy judgments the Court of Appeal want us to do – require time we haven’t got’.

Although those who took part in focus groups generally supported the aims of the Transparency Review, there was considerable anxiety about how realistic it would be to expect individual judges to take on extra tasks at this time. There was a strong consensus that professional anonymisation by a separate unit would be essential, as even a requirement for a small increase in publication would not allow the judges themselves to ensure minimal risk of identification.

What did the TIG sub group recommend?

In order to make publication by ‘an already overwhelmed judiciary’ possible, the recommendations moved away from the President’s suggestion of 10% of all cases, to a range of between five and ten judgments each year, according to circumstances. Draft guidance to this effect is set out at the end of the report.

What does this mean for cases currently going through the family courts?

Looking at the low numbers of family court judgments currently appearing on The National Archives, the chances of a judgment at less than High Court level currently being scrutinised by the public are very slim. For the whole of March 2023, nine judgments are published; there were 12 in February. The modest targets recommended by the TIG will improve accountability, but their introduction awaits confirmation that the new anonymisation service will be in place. Given that these recommendations were made more than six months ago, we can only hope that progress toward ensuring effective anonymisation and publication is being made.

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.

Our legal bloggers take time out at their own expense to attend courts and to write up hearings.

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Thanks for reading!