Transparency in the family courts: new practice guidance takes effect. By John Bolch.

Family Law|February 3rd 2014

The President of the Family Division’s practice guidance on the publication of judgments takes effect from today.

The purpose of the guidance is to increase the number of family court judgments that are published, with the ultimate aim of improving ‘transparency’, i.e. making the public more aware of the work of the family courts, thereby countering the charge that the family courts operate ‘a system of secret and unaccountable justice’.

Basically, the guidance applies to all judgments delivered by Circuit Judges and High Court Judges, and sets out two categories of judgments: those that the judge must ordinarily allow to be published, and those that may be published.

The first category includes cases where the judge considers that publication would be in the public interest (rather like previously) and cases of certain specified types, unless there are compelling reasons why the judgment should not be published. Those types include cases where care or adoption orders are made and cases involving the giving or withholding of serious medical treatment.

The second category covers all other cases, where the ‘starting point’ is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given.

Where permission is given to publish a judgment, any children involved should not normally be named, but any local authority or expert witness involved should be named, unless there are compelling reasons why they should not.

Where permission is given, the judgment will be published on the BAILII website. Just how many more judgments are published, only time will tell.

All of the above sounds all very good, but there are two essential things if the guidance is to succeed in its aim of improving transparency.

Firstly, and obviously, the judgments must be read.

Up until now, the primary purpose of publishing judgments has been to inform lawyers of legal developments, so the primary readers have been lawyers. However, it is not, generally, lawyers who accuse the family justice system of being secret and unaccountable. Those accusations come from elsewhere, in particular from journalists and those who are aggrieved at some perceived injustice that they believe they have suffered at the hands of the system.

Will these people read the relevant judgment(s) before they publish their accusations? I’m not convinced that they will, and once the accusations have been published, the damage has been done, as was seen recently in the ‘forced caesarean’ case.

The second thing is that the judgments must be understood.

Misunderstanding a judgment could be worse than not reading it at all. Most (but not all) judgments are reasonably understandable by lawyers, but will they be by non-lawyers? Again, I’m not sure that they will. Obviously, judges can use simpler language, but this is not always easy when dealing with complex legal issues, and in any event judges are extremely busy and simplifying judgments is likely to be time-consuming.

I do hope that the publication of more judgments will ultimately improve the public understanding of the work of the family courts. It will not, however, be a complete solution and much more work will need to be done to restore public confidence

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(14)

  1. vob re says:

    The up shot of ‘ Transparency’ will be that less children will be removed from families unnecessarily. It will now not be so easy for experts to be under the influence of local authorities or for local authorities to lie and distort the truth.
    This judgement is a very welcome one ; long over due ! too late for many families .

  2. DT says:

    Excellent piece John & I totally agree with your conclusions.

    Vob: if publications were to dispel misunderstandings & myths that’d be great, but they are unlikely too.

  3. Tristan says:

    Transparency? On just what grounds was the Interim Care Order given in the Pacchieri case? You know, the forced ceasarian one where the Italian mother was deemed a nutcase and had her baby snatched by social services at birth.

  4. DT says:

    Vob: the default position is that a child remains with their parent(s) unless it’s not possible.

    Children are not removed ‘unnecessarily’. Local Authorities (LAs) take removal /s20/placements very seriously indeed. A huge amount of work goes on behind the scenes especially to see if help and support can be given to parents so that children can indeed remain with parents; sadly not enough parents truly engage with LAs. Sometimes LA’s are criticised for leaving the child at home and offering too much support thus parenting the child in their own home in-effect.

    Experts often disagree with LAs but it’s up to the court to take a view. To suggest that LAs distort the truth is untrue and unfair. Furthermore, LA’s only make recommendations, it’s up to the court to decide and courts are made up of very experienced lawyers who have seen 1000s of cases.

    Most people with a dim view of the system tend to have had an LA involvement in their lives. This is not going to pleasant because it means that there have been concerns/risks which have necessitated involvement (to whatever degree). Unfortunately, this is the way it has to be because children come first. This experience will not be desirable and so no parent involved in this is likely to speak highly of the process and I can see why, however few parents accept responsibility for state involvement and I’d like to be noted here.

    LA involvemt has got to be tough on a parent – no doubt, but that’s often the only exposure to the family court system a parent has. That negative experience becomes the foundation of that person’s viewpoint. This view is not objective, it’s charged with emotion and bias and that’s understandable.

    If you/others saw case after case going through the court system, you’d see a pattern – that being that the courts act as fairly and openly as they can on all the differing variables. Seeing one case (often one’s own is insufficient to make an informed judgement). Like it or not, the child(ren) must come first. Period.

    Even if many more cases are made available, without the requisite skills of legal interpretation and understanding, will you / the general public be better off?

  5. Tristan says:

    Marilyn, the case reports for her forced caesarian and the final adoption order for her child were published. The key report, that of why social services were able to snatch her baby shortly after birth, has never been published. Munby has allowed this to be kept secret, presumably to avoid bringing a judge and the system of baby-snatching itself into disrepute. Predictably, it would be found that this women’s baby was removed from her on the flimsiest of evidence conveniently provided by a social services retained expert.

  6. Luke says:

    DT, your post comes over to me as remarkably complacent and patronising, there are many cases – including ones on Marilyn’s blog – where LA’s have acted in an absolutely scandalous manner.
    Nobody is suggesting that children should not come first, that is a straw man argument, it is how the LA’s decide what is in their best interests that are sometimes of concern.

    The following sweeping statement that you make:
    ———————————————————————–
    “Most people with a dim view of the system tend to have had an LA involvement in their lives.”
    ———————————————————————-
    shows a remarkable lack of concern – I think LA’s have a poor reputation with the public at large when it comes to dealing with children, that is certainly my experience – and parents fear them. LA’s seem to put far too low an emphasis on the importance of keeping contact with the birth family and their extended family.

    Your last statement that transparency will not help because the general public are too stupid to understand what is written seems to continue your general theme.

  7. DT says:

    Luke

    Of course LAs get it wrong, they’re run by humans and not machines! Sometimes the courts get it wrong too, but for the most part, I think that the right decisions prevail.

    LA’s undertake a thorough and complex raft of assessments by trained professionals over significant periods of time and, where possible, the child’s views are sought. Some children don’t want to go home and thrive in foster care. If children can be kept at home or with the wider family, they will be. Sadly this is not always possible.

    LAs have a poor reputation in part because of not getting it right (and we all know of such cases), but also and more often because of irresponsible, ill-informed journalism and parents who have lost their children/children have been adopted because of a refusal to engage!

    Parents who are going through care proceedings (usually but some do refuse) have solicitors who can explain things to them and often still they don’t work with the LA, continue with drink and drugs, have relationships with predators and fail to put the child’s needs before their own etc. There’s some great care lawyers out there and some must be so frustrated with their clients – you can take a horse to water but you can make it drink!

    How many public law childrens’ cases (no detail please) do you have a detailed experience of?

    I think that transparency in the courts is good but I wish you and others could see what the LA has to deal with and then you might think differently.

    I did not say the public were too stupid however many are not legally trained and are unlikely to be able to appreciate some of the meanings behind the terminology and the nuances of legal language. It takes many years to become a lawyer and this is one of the things lawyers learn along the way.

  8. Luke says:

    DT, I am not talking about just getting it wrong – I am talking about MASSIVE incompetence and quite possibly criminal activity.
    We have had cases in this blog where LA’s have just ignored a court decision and where they have been deliberately obstructive and bullying so that parents cannot get a fair hearing.
    These are not just cases of ‘not getting it right’.

    I also think (and I believe the general public thinks too) that there are far too many cases where even if they do not behave scandalously they are far too quick to remove children from their extended families. We have plenty of cases of that too.

    If the terminology and nuances of legal language are not easily understood then for the sake of transparency they should be rewritten for the public so it is clear – if that cannot or won’t be done by the people doing the job then we need to replace them with people who can.

    If we now have transparency then we WILL be able to see more of what LA’s have to deal with and their reputation with the general public with regard to child care would not perhaps (?) be so shockingly bad.

  9. Tristan says:

    DT, when you do try to engage, as I did in disputing their ridiculous allegations, social workers will then wrongly and inaccurately describe a father as “abusive”. It’s a standard fallback for dealing with parents who stands up to them. Occasionally they come a cropper themselves when a parent has enough nous and the means to fight back.

    The social workers I came across could correctly and accurately, be described as charlatans.

  10. Tristan says:

    The details of the Interim Care Order hearing (not the final adoption order) in the forced Caesarian case remain conspicuously hidden from public view. Given the furore over this case, ought not the head of family division, Munby, to provide some explanation for this wholesale lack of transparency?

  11. Marian Clarke says:

    Thank you Luke at least one person here is talking sense

  12. vob re says:

    DT

    I refer to your comments that LA do not distort the truth that you believe is unfair .
    Blatant lies have already been proved in front of Judges yet the LA continue to employ the very same SW’s because they feel they are beyond reproach; gross misconduct of this kind will hopefully diminish with transparency.

    ‘Transparency’ will reveal SW

  13. DT says:

    Luke

    I agree, I’d like to see cases (and statutes) written in a more accessible style. They’re getting better but I think there’s room for improvement.

    Tristan

    I suppose it depends how you went about trying to engage.

Leave a Reply

Close

Newsletter Sign Up

For all the latest news from Stowe Family law
please sign up for instant access today.

Privacy Policy