What exactly is ‘transparency’ in family law?

Family Law|September 1st 2014

‘Transparency’ is one of the buzzwords of the moment, but what exactly does it mean, and why is it important? Or, indeed, is it important at all?

I don’t know when the term ‘transparency’ was first used in a family law context, but the idea that it represents is not a new concept. The simple fact of the matter is that historically many family law cases have been conducted in private. Contrary to popular opinion, there are often very good reasons for this, the foremost of which is to protect the identity of any children involved in the proceedings. Unfortunately, the difference between privacy and secrecy has been misunderstood in some quarters, and this has led to conspiracy theorists believing that the family courts operate, in the words of the President of the Family Division, “a system of secret and unaccountable justice”.

To counter this, the system has sought to open up its procedures to the public, to explain what it does, why it does it and to demonstrate that it most certainly is ‘accountable’. This process of opening up has been given the name ‘transparency’ (which doesn’t seem to me to be quite the right word, but we won’t dwell on that).

The conspiracy theorists to whom I referred above have always been about, but until recently they have mainly occupied the margins, predominantly consisting of those aggrieved at court decisions that have not gone their way. However, transparency has taken on a new urgency in recent years, as the family justice system has come under sustained attack by more organised groups and sections of the media. As a result, their misinformation has gained popularity. This has been considered to be hurting the system, which now sees greater need to ‘fight back’.

This greater need led to the President issuing his transparency guidance back in January, calling for more family court judgments to be published. Separate but simultaneous guidance called for the publication of more judgments of the Court of Protection, which is also seen by some to be secretive. The idea was that if more judgments were made public, the public would be able to see why the courts made the decisions that they did. Certainly, we have seen more judgments published since January, although most of them are of little or no interest to anyone save for those directly involved.

There are, of course, other aspects to this transparency drive. I will not go into the details here, but those seeking more information can find it in the consultation paper that the President issued a couple of weeks back.

Will all of this make any difference? Probably not – as has already been shown many times, those with an axe to grind against the family justice system do not allow a small matter like the truth get in the way of their arguments. They will continue with their agenda. After all, a headline such as ‘Secret family court snatches child from parents’ is likely to sell more papers than ‘Court reluctantly finds that parents are incapable of looking after their child’.

As for the general public, the vast majority will be ignorant of the transparency drive. They will not be aware, for example, that judgments are available online, let alone read them. What they will read, however, is the misinformation still peddled by the media.

Which brings me to my last point: does it matter what the public thinks anyway? This whole transparency drive is using up considerable precious resources (when resources are very limited), not just in terms of money but also in terms of time spent by people who could be more productively employed. Do those resources really need to be spent in this way? I’m not entirely convinced that they do.

So long as the system is not either secretive or unaccountable and that this is understood by the holders of the purse-strings in government, should it matter what the public thinks? I realise that governments have to listen to public opinion, but they don’t have to bow to that opinion if it is wrong. As for the family justice system, should it not concentrate on its job, rather than partake in a beauty pageant?

Photo by Florin Rosoga via Flickr

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  1. james says:

    Yet more drivel from the professions “top” blogger!
    What is so difficult to understand about “transparency”?
    What is so difficult about opening the family courts up for all to see?
    Does it not make common sense to allow the public to see what goes on? As they themselves may have to deal with the pathetic system one day themselves.
    Yes, the negative UK press will pick up on the best sellers. Thats an issue with the UK press not an excuse to censor or use the protection of kids reason not to be open.
    It can only be a good thing that the family courts are being asked to explain their actions. The “conspiracy theorists” are simply people that are sick of seeing injustice in what is supposed to be an openly democratic country.

  2. Stitchedup says:

    My god, what a one sided article… so anybody aggrieved by a judgement that hasn’t gone their way is labelled a lunatic conspiracy theorist???

    John, as a legal professional you should know better than most that the law is constantly changing. The reason for some of these changes is that the law was misconceived or has become outdated… in other words it is/was bad law/wrong law. I’m not going to just pick on the family courts, this applies to the criminal courts also. As an example, not too long ago gay men could be chemically castrated – was that an example of good law??? A homophobe might think so but speaking as a straight, heterosexual man with tolerance of gay people I don’t think it was good law.

    In my opinion the most damaging aspect of our current legal system is the level of political interference and political correctness that has been allowed to infect the system. As we have seen recently, this has had disastrous results for young girls in Rotherham. However, as I mentioned in another post, we see the opposite side of the coin where perfectly decent men/husbands/fathers become the victims of over zealous feminist political correctness played out in our legal system, including the family and criminal courts.This is not a conspiracy theory John, anymore than recent events in Rotherham are a conspiracy theory… this is happening.

  3. Stitchedup says:

    Take this on board John…. several months ago I went to court with a friend that had been accused of sending threatening texts to his ex wife. His home had been raided by the Police at 5AM in the morning, they confiscated all his phones for analysis and he was released on pre-charge bail. The phones were analysed and returned to him with no evidence of texts having been sent form any of his phones. His ex made further allegations whilst he was on pre-charge bail and he was again arrested and his phones were taken for analysis… again no evidence. I believe his ex made further allegations; he wasn’t arrested but was still on bail. Just before Christmas last year he received a call out of the blue asking him to go to the Police station as he was being charged.

    He consulted a solicitor, astounded that he could be charged without any evidence. the Solicitor told him that as it was domestic he was guilty until proven innocent. He also told him that domestic, racial, and sexual offences are political hot buttons and the CPS tend to prosecute because they have too much paper work and explaining to do if they don’t. He also advised my friend that the case was to be heard before a certain District Judge and that he would almost certainly be found guilty.

    Fortunately for my friend the case was instead heard before a bench and the prosecuting CPS solicitor went to great lengths from the outset to point out to the bench that he had no evidence…. So why did the CPS chose to prosecute…… Answer…. Political interference and Political correctness.

    • Stitchedup says:

      I should add by the way that my friend was found not guilty and had costs awarded. We did have to work hard on the solicitor in the early stages to get him fired-up for the fight, but on the day it went our way.

      However, it could so easily have gone the wrong way if we had the District Judge not the bench.

  4. Anonymous says:

    Social engineering and child trafficking are big business. It doesn’t pay to be transparent about them. They need to be hidden away. Either that, or they can be dressed up and marketed as a public service.

  5. V for Victory says:

    I believe ‘ Transparency’ which family who had to get through the whole proceeding are looking for is more define than your description. From CAFCASS to the court – they seem to be very opinionated and very autonomous reference among themselves. There is no transparency anywhere except – the target of 26 weeks to be hit. To be honest – they needs a new operation and dissect whole organisation for their court work especially in the private law. If CAFCASS cannot find any thing to blame – they will start the procedure of witch hunt . If you stand for yourself and be able to proof it . They will need to hunt you down with more ridiculous theory of alienate ( even you agreed with the court – you still alienate parent because you had a reasonable ground on your children best interest . or you may be used to find any manipulate behaviour – – – kids don’t have brain . They can’t think when they experienced difficulties by themselves. Don’t make fuss and telling the court because you are not try to help them to meet target but you can apply for another application instead – same story but new count with new time line to meet . I found the late expert witness can be granted just simply as that. Waste public money, absolute waste and not on the children best interest at all.
    I think the mud is there and simply needs to go first. I m not sure the power has been balance at all. One person assumption – paint whole story and may be make up more story. Nothing to do with the fact and refuse to do anything even though you can caught them lies.
    I am no solicitor but I had been survived in the court with my little legal knowledge for more than a year now . Is there any more of witch hunt’s law to be throw at somebody who simply want to do the best for children? The person who simply miss the point is the system. It is true time wasting and really muddy.

  6. Andrew says:

    Funny that you should write this just when a Minister of the Crown shoots his mouth of to the effect that certain high-profile criminal/extradition proceedings with a family savour should be abandoned!

  7. Luke says:

    “Which brings me to my last point: does it matter what the public thinks anyway? ”

    Yes – anything else ?

  8. What exactly is ‘transparency’ in family law? | suannehoney says:

    […] to https://www.stowefamilylaw.co.uk/2014/09/01/what-exactly-is-transparency-in-family-law-by-john-bolch/ for this […]

  9. Nordic says:

    Open courts is a basic element of a civilised and well governed society. What you somewhat derogatory term the transparency drive is a constitutional right in most countries that surround these backward isles. The default should of course be that all hearings are conducted in open, but with reporting restrictions that prevent identification of parties and children. Judges should have to justify closing the court room doors on a case by case basis and such closures should be the exception. Not the other way around. It is you that confuse private courts with the need for identity protection and reporting restrictions. When the default is private courts, the result is secrecy.

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