The number of published judgments is returning to pre-guidance levels
As many readers will be aware, in January 2014 the President of the Family Division Sir James Munby published Practice Guidance regarding the publication of judgments in the family courts. The intended effect of the guidance, which is commonly known simply as the ‘Transparency Guidance’, was to increase the number of family court judgments that were published, in order to counter the charge in some quarters that the family courts operate a system of secret and unaccountable justice.
Back in March Cardiff University’s School of Law and Politics published research that indicated that the application of the guidance across the country was ‘patchy’, with some courts appearing to publish judgments regularly, and others never at all. The research found that judges were struggling to find the time to publish judgments safely, without identifying the children and families involved.
I mentioned at the time that I run an online case digest, which publishes links to all (or almost all) family law judgments I come across, and that the figures for the number of judgments I link to each year clearly show the increase in published judgments since the guidance, and also a drop-off in the last year. I wondered whether the initial enthusiasm for the guidance was diminishing.
With another three months data since then I thought I would have a closer look at my figures. Now, before I get to them I should explain that this is not a very scientific exercise. Whilst in the course of my work I do ‘come across’ most full family court judgments that are freely published online (i.e. not behind a paywall), mostly on the Bailii website, but some elsewhere, and whilst I do publish links to most of them, some are not published. This may be simply because I missed them, or (in a few instances) because they were judgments of the lower courts and I chose not to link to them, as they did not appear to be of particular interest to my ‘audience’, which I believe consists primarily of family law professionals (although if anything, there would have been more of these lower court judgments in the months when more judgments were published anyway). It is also the case that some judgments are published long after they are handed down, and therefore will relate to an earlier time period. However, having set out those caveats, I still believe that my figures provide a fair picture of the number of family court judgments that have been published in recent years, and I’m not sure there is a better source of this information, as I’m not aware of any other source that includes several sites where judgments are published (the Cardiff research, for example, seemed to concentrate just on judgments published on Bailii).
OK, so to the figures. To give an idea of the picture before and after the transparency guidance was published, I have included everything since the beginning of 2013, up to the last full month, May 2017. These figures produce the following graph:
As will be seen, the graph clearly shows the effect of the guidance, with the average number of judgments published each month jumping from about forty to about sixty. It also clearly shows the number dropping away since late 2015. The current trend is downwards, and it is not just a short-term thing, having been happening for nearly eighteen months. Note the dotted orange trend line, which clearly indicates that the figures are returning to pre-guidance levels. In short, barely more judgments are being published now than were being published before the President handed down his guidance.
If my figures are reasonably accurate (and I believe they are), it really does look as though the whole transparency guidance ‘experiment’ may be over, at least for the time being. What the reasons are for this, I don’t know, but I suspect that the researchers at Cardiff University may have hit the nail on the head when they indicated that judges simply do not have the time to publish their judgments. In these days of cut-backs and litigants in person they are already under enormous pressure, and finding the additional time to safely publish their judgments is just impossible.
Of course, the transparency guidance ‘experiment’ can be ‘kick-started’, perhaps with a ‘gentle’ reminder from the President, but, as with so many things, it may be that what is really needed is not more guidance, but more resources.