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Family Law

The leading authority on all aspects of family law

18 AUG 2014

Transparency – essential update

Amy Sanders

Professional Support Lawyer

@Amy_Sanders1

Transparency – essential update
The President of the Family Division Sir James Munby has released a Consultation Paper regarding ‘Transparency – The Next Steps’. We have seen, over the process of reform this year, the President’s continued wish to demystify the Family Court and this paper outlines the intended ways of achieving that goal.

In a nutshell:


The public needs to understand the Family Court and what it does, without compromising confidentiality or the private and family lives of those involved in the court system.

When:


Practice Guidance: Transparency in the Family Courts – Publication of Judgments [2014] 1 FLR 733 – was issued on 16 January 2014 and took effect from 3 February 2014.

The Consultation Paper:


Transparency – The Next Steps: A Consultation Paper was issued on 15 August 2014.

Summary of the Paper:

The need for greater transparency is to increase public understanding and confidence in the court system and allow everyone to see what is being done by the judges.

Increased reporting

The Practice Guidance has been significant in increasing the number of judgments in family cases being published on BAILII. This increase in reporting will have consequences, and the President particularly wants to hear any views regarding:

(1) The impact on children and families, both immediate, short term and long term;

(2) The impact on local authorities and other professionals;

(3) Any change in the level and quality of news and reporting about the family justice system.

Case listing

Further sought are any views and suggestions as to the way cases are listed in the Family Division and the Family Court, so that court lists are more informative as to the subject matter of the cases (without naming the parties). The current case number procedure (which uses the identifying code of the court, the year of issue, a letter to identify the type of case and a sequential 5 digit number) is understood by practitioners although not, it is thought, by others. One suggestion for making the listing clearer is that a catch-phrase or some catch-words might be added after each case number to indicate in slightly more detail what the case is about.

Disclosure of documents

A pilot project to deal with the issue of disclosure of certain categories of document to the media is a possible next step. Likely to be confined to High Court judges sitting in London (and possibly a limited number of DFJs elsewhere), the disclosable documents would fall into two categories:

(1) Documents prepared by the advocates, including case summaries, position statements, skeleton arguments, threshold and fact-finding documents;

(2) Some experts’ reports, or extracts of such reports.

Category (1) is considered the logical next step with advocates preparing documents in a form that could be released to members of the accredited media. The purpose of which is to facilitate the media understanding the case and deciding whether it is one they would wish to attend.
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Category (2) is more complicated and controversial. Not every expert’s report would be released but only those identified by the judge, having heard submissions.

Consideration may have to be given as to whether the report should be redacted or anonymised and if so who should carry this out.

It is envisaged that initially documents and reports disclosed in this way would remain confidential, unless ordered otherwise, so any copying or onward transmission by members of the media would be a contempt. Where such disclosure was being considered, the expert should be informed prior to disclosure. It would be of note to see whether the prospect of disclosure of their reports would have an impact on the willingness of experts to be involved and also on the content and quality of their reports.

Particular points of interest to the President are:

(1) Which types of documents should be included in category (1) and which types of expert in category (2)?

(2) Should access to such documents be confined to those members of the accredited media who actually attend the hearing or extend to any member of the accredited media entitled to attend the hearing, whether or not they do attend?

(3) What further restrictions and safeguards are desirable?

Hearings in public

Preliminary, pre-consultation views are also being garnered about the possibility of certain types of family cases being heard in public. This is at the early stages of discussion and if the matter proceeds at all, it would initially be by way of a pilot. Views are predominantly sought on three questions:

(1) What types of family case might initially be appropriate for hearing in public?

(2) What restrictions and safeguards would be appropriate?

(3) What form might a pilot take?

When a family court sits in public, the protection offered regarding publishing information under section 12 of the Administration of Justice Act 1960 no longer applies. Furthermore, the confidentiality attached to documents and information produced under compulsion ends when the material is read out in open court. This has particular ramifications in the context of financial remedy cases. Consideration will need to be given to the implications of both these points and whether any other restrictions and safeguards need to be put in place.

To do:

(1) Submit any comments or feedback on the impact and the working to date of the existing Practice Guidance.

(2) Don’t keep your views and valuable experiences to yourselves - submit any comments or feedback on the Consultation Paper topics by email to Andrew Shaw at Andrew.shaw@judiciary.gsi.gov.uk.

(3) Keep checking http://www.familylaw.co.uk/new_and_comment for the latest up to date guidance and reports, particularly for news on any pilot projects that may take place in your area.

(4) On twitter? If so, make sure you follow @JordansFamLaw for breaking family law articles and news around the clock.
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