Recently I read an article in The Sunday Times by the former President of the Family Division, Sir James Munby, entitled “Family court privacy law put judges’ needs first.” The article was recapping on the evidence that the former President had given earlier this year to a transparency review of the family court.

I don’t mind confessing that until I read the article, I had not appreciated that Sir James has been advocating for greater openness in the family courts for a very long time. Despite his long standing efforts, it seems little progress has made and I doubt he has achieved his objective from 2013 when he said, “I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should be saddled, as the family courts are at present, with the charge that we are system of secret and unaccountable justice”.[1] Sadly eight years on it seems that the status quo has remained. Interestingly, however, in recent times and since his retirement, Sir James’ comments seem to be gaining some traction.

Whilst, Sir James was President he issued guidance in 2014 which was aimed at encouraging judges to publish their judgments on the judicial website Bailii in redacted and anonymised forms to protect the identities of children. This guidance was aimed at a particular level of judiciary and I do not believe it has had the ‘take up’ that was intended. I do think, however, that there is a movement growing for the family courts to become more transparent. Key leaders and influencers in the profession have been pushing hard for change in this area for some time (some louder than others!).

For those of you that are new to this, the family court comprises of a number of levels of judiciary. The majority of decisions that impact on family life are generally made by Magistrates, District Judges and Circuit Judges. There is no doubt that all levels of the judiciary are working at capacity and there is some sympathy when Judges state, with complete honesty, that they simply do not have time or the resources available to make the guidance work; sounds good in theory but the reality is that it can’t be delivered in practice. I think it’s fair to observe, that at the moment, the majority of decisions made by these three levels of judiciary are not generally shared with the public and this is something that many believe should change.

Some argue that there is good reason for not publishing judgments other than time and money. Others believe that the family courts must protect the confidentiality of the family and in particular, the children. In most cases the necessity for privacy should trump any wider public policy decision. Finally, others worry that if we have a starting point of all judgments being published then children’s safety and welfare will become compromised.

There is, however, another side of the argument and one which, in my view attracts greater consideration. At the end of the day it’s about accountability. As Sir James said in the review, “laws designed to protect children’s privacy are used by judges and councils to cover up decisions” and “prevent public officials being held to account.” So, this is where I make my second confession. Despite having done this job for over 20 years I was not particularly familiar with the guidance handed down in 2014. I feel sure that I must have read it at the time but it obviously did not register. I now ask myself – why? I am guessing I fell foul to those fatal words – ‘we have always done it this way’; the family courts have never published judgments so why should we start now!

As Monty Python would say, ‘And now for something completely different’ – I understand that if nothing changes then yes, you’ve guessed it, nothing changes. That doesn’t sit comfortably with me. I think maybe with 20-years of experience and having a greater degree of wisdom and confidence to speak out then I should be able to put it out there a little. In recent times I have been thinking about this topic a lot and it has really gripped me. So maybe it was no coincidence that when I was reading this article I was in the middle of a case that I felt met the criteria for being published.

As a result I challenged myself and soon after I went to the court to ask for the judgment to be published. When I first indicated that I would be making that application I must admit that I felt a little trepidation. Disrupting the status quo is never easy and the safe option is invariably not to challenge. This unsettled me but I kept at it because I truly believed it was the right thing to do. Guess what – a couple of hearings later and the Judge agreed to publish the judgment.

My sense is that as practitioners, we all want to make the family justice system better. How can we do that if we don’t look at ways where things can improve for the better?

I am not saying that the judgment should ever contain information that identifies or causes to identify the children (this is known as the ‘jigsaw’ argument) – that is not what this debate is about and the right to confidentiality for children and their families is non-negotiable. The biggest blocker appears to come from the judiciary itself – not because they think it’s a bad idea but because they say they do not have the time or the resources to make this happen. As practitioners I am not sure we should accept that. The starting point is not to publish every judgment but we have to start somewhere and at the moment the elevator still seems that it is stuck on basement level. Why can’t we simply start by publishing those judgments that do raise an important policy issue?

For my part, if in the future I ask for another judgment to be published I would be more than happy to go over the document and anonymise it for the Judge; we all have our part to play in making change and it cannot be left to one person. We have to create a movement in this area. Unless more judgments are published it is my view that many of the issues that we face in the family courts will not be resolved. The only way to be trusted by the public is to be transparent and accountable and this has to be the bedrock of our profession. Without this we cannot face the challenges not just of today but of tomorrow. As a wise person once said “a lack of transparency results in distrust and a deep sense of insecurity.”[2]

The Family Division’s Transparency Review report is due to be published imminently and I look forward to seeing how it recommends the profession can become more transparent and accountable. As I said earlier, if nothing changes then nothing changes. Let’s see what happens.

Written by Lisa Edmunds, CEO & Senior Consultant Barrister

See the latest update from the Family Division here: https://www.judiciary.uk/announcements/update-family-divisions-transparency-review/

[1] View from the President’s Chambers: the Process of Reform [2013] Fam Law 548

[2]Dalai Lama

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