TRANSPARENCY – publishing decisions

///TRANSPARENCY – publishing decisions
TRANSPARENCY – publishing decisions 2018-01-26T17:09:31+00:00

Transparency in the Family Court System

You will see in these pages, and elsewhere, plenty of published cases on PA and family law in general.  The Custody Minefield is a particularly excellent site, thoroughly recommended.  All family cases are, of course, fully anonymised.

What you will notice though is that most of the published cases are from the Court of Appeal and the High Court.  One of the reasons is that these cases should be followed in the County Court, although see this.   Also, County Court decisions don’t have to be followed by any judge, not even other county court judges.  This is a shame, because some of them are excellent.

But the main reason STOPPA wants to see cases published is for the simple reason of transparency.  In a modern western democracy this is surely a guiding principle.  Higher courts have already shown that it is perfectly possible to anonymise cases and keep the identity of our children secret – all right and proper of course.  So, let’s have this same openness in the County Courts.  This has already been mooted by Munby LJ.

So, why is it not happening?

Well, it could be because judges haven’t got the time to anonymise and publish their judgements.  But surely a clerk could do this?  There really is no great skill in anonymisation, and what skill there is could easily be taught by a judge to a clerk in half a day.  Can such an important job be left to a clerk?  Well, it depends on who the clerk is.  If County courts could employ the same kind of clerk as is employed in the Magistrates’ Courts (ie a trained lawyer) STOPPA would have thought that this should easily be do-able.  Yes, it’s a bit more expense for the ‘system’ but given the benefit, it’s surely worth it.

If one were a conspiracy theorist, one might imagine that County courts might be embarrassed by their appalling performance, particularly in PA cases, and that this is the real reason judgements are not published.  STOPPA suspects that most county court cases go the way of the AP, with CAFCASS being biased, lazy, unaccountable and ignorant, and judges slavishly following their recommendations.  Let us know your own experience.  At the moment, there is no data.

Demonstrably, there is an issue to be addressed.

Worth noting too are the words of Munby J, in F v M in the matter of D [2004] EWHC 727 (Fam):

“I now hand down this judgment in public as a contribution to what Wall J in A v A [2004] EWHC 142 (Fam) at para [22] referred to as “the ongoing debate about the role of the courts in contact and residence disputes.” I repeat what I recently said in Re B, Kent CC v B [2004] EWHC 411 (Fam) at para [99]:

“In my judgment, the workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system require open and public debate in the media.”

And I draw attention to what the President said in the administrative directions that she issued on 28 January 2004 in the wake of the Angela Cannings case (see Re B at para [14]):

“It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of ‘secrecy’ in the family justice system, a broader approach to making judgments public may be desirable.”

I respectfully, and emphatically, agree.”