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like previously) and cases of certain specified types, unless there are compelling reasons why the judgment should not be published.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