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Family Law

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Court of Protection Practice and Procedure Conference 2016

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24 JUL 2013

Joanne Clarke: Transparency in the family courts guidance

Joanne ClarkeSir James Munby, President of the Family Division, has published a set of draft guidelines (pdf) outlining a proposed new approach to the publication of family judgments.

Prior to the issue of the draft guidelines, the President had emphasised his determination to focus on transparency within the family justice system. "I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice."

It should come as no surprise then that this draft guidance has now been issued. Changes have been afoot for some time. Readers may remember in March 2013, Mr Justice Mostyn lifted a ban on Christopher Booker, The Sunday Telegraph columnist, reporting on a care case.

The injunction barred Mr Booker from making any reference to the case, known as M v M and the London Borough of Sutton. The High Court heard how the order prevented the reporting of proceedings that were "clearly in the public interest". In his ruling, Mr Justice Mostyn said he was lifting the injunction "because the emphasis should be on transparency" in the courts.

In order to manage the family courts troubled reputation, the President has long been an advocate of providing information to the public about the way cases are decided. Having transparency means that an informed debate can be had, rather than one based on speculation and suspicion.

Under the draft guidance more written judgments of the family courts and the Court of Protection will be made available to journalists and the naming of experts and local authorities would be allowed in more cases. Sir James said the identities of children would continue to be protected.

The judgments being published will be across the board and not limited to cases of a particular type. This will allow journalists reporting on a case to read the judgment in the case so as to have an informed understanding of what happened and will also allow for proper analysis of the cases.

The President repeated his wish to improve access to and reporting of family proceedings, adding "The law is highly technical and far too complex. The need for reform has been recognised for at least 20 years. Too little has been done."

The draft guidance is intended to generate an "immediate and significant" change in practice in relation to the publication of judgments in family courts and the Court of Protection. It added: "At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name."

The judge has proposed an incremental approach, with the draft guidance issued for discussion. The draft can be downloaded from the Judiciary website where the President is seeking views on the proposals.

The draft guidance will be followed by further guidance and later more formal practice directions and changes to the Court of Protection Rules 2007 and the Family Procedure Rules 2010.

So is this a good idea? The concern will be that there is a balance to be reached between making cases public and preserving the confidentiality of the children concerned. However, transparency was always going to be required at some point if the Press and commentators continue to claim that the secrecy of the family courts is proof that miscarriages of justice are routine and that the system is flawed. Any change which brings about greater public awareness in the court process and belief in the court system should be welcomed.

Joanne Clarke is a Solicitor at Lester Aldridge

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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