The research, led by Dr Julie Doughty of Cardiff University’s School of Law and Politics, examines how the Transparency Guidance on publication of family court judgments has taken effect since February 2014 and its impact.
Here is a helpful four page summary of the context of the Transparency Guidance, what the research found,and some conclusions and recommendations.
There is also a press release called Family court transparency plans fall short as judges struggle to find time to publish judgments safely.
The Today Programme and Radio 4 news
You may already have heard Sanchia Bergs in-depth report of the research on the Today Programme at Radio 4 on 24 March 2017. You can also now listen on bbc i-player here. The report features Dr Julie Doughty in her capacity as lead researcher (she is also a Trustee of the Transparency Project) and Cathy Ashley (Chief Executive of the Family Rights Group). This is then followed by a live interview of Lucy Reed (Chair of the Transparency Project) discussing the research and publication of judgments generally, with Dr Julia Brophy (Independent consultant and Policy Officer for the Association of Lawyers for Children).
(The research also featured briefly on Radio 4 on 23rd March including as a short news item on the Today Programme now on i-player here. (Coverage starts at 05:12).
These 2 paragraphs updated and amended at 09.34am 23/3/17 and again at 11.22am 24/4/17]
The Research Report
The full research report Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people is published by Cardiff University and can be read here. The research was funded by the Nuffield Foundation.
Key messages The Transparency Project takes from the research findings include:
- There’s now much more information in the public domain about the operation of the family courts because of the guidance, particularly ‘routine’ cases of no particular ‘legal’ interest, that simply weren’t published before
- There’s evidence of more reporting of family cases and some evidence there may be a decline in mainstream press allegations of ‘secrecy’ but more research is required
- The guidance isn’t consistently followed, leaving the press and public with a patchy understanding of the family justice system in England and Wales
- The rate of publication shot up, dipped and continues to fall
- The rate of responses to the research surveys by judges and practitioner bodies representing children and families was strikingly low
- The capacity of the system to anonymise and redact effectively remains untested given the lack of guidance and training to date but more focus on effective anonymisation and redaction of detail to prevent composite (‘jigsaw’) identification is needed
- Judicial workloads and lack of administrative support (for circuit judges in particular) are a major barrier to publication and effective anonymisation / redaction.
- But the judicial survey results and the evidence on patterns of publication and how ‘busy’ each family court centre is, suggests the reasons are more complex than that
- Given that resource constraints are unlikely to change, one way forward may be to pilot a new system requiring all family court areas to send a smaller, more manageable, representative number of judgments for publication, subject to certain safeguards and with measures in parallel to make transcripts more easily available (see page 91 Research Report & page 3 Summary)
- Other key recommendations include:
- Better information for court users on possible publication and how to make representations on this
- Judgments should make judicial ‘transparency workings’ explicit, with an amendment to the standard Case Management Order template to facilitate this. Including:
- what precedent is set if any;
- when they were published and reasons for any delay (such as for the outcome of a criminal trial);
- the publication strategy chosen with reasons including whether, when and how to publish; anonymisation and naming decisions
- under what section of the guidance (or other) was publication directed and what if any representations made
- Guidance (in the form of a practice direction) for all practitioners, on effective anonymisation and sending judgments for publication. To include publication, naming and how to appropriately hold professionals to account. (The President has long indicated an intent to consider research findings before issuing such guidance in some form for consultation)
- A protocol for judges to know when criminal trials end, perhaps via councils
- Judicial anonymisation training, using existing judicial experience and good practice
- Online publishers of news items about a published judgment should be encouraged to link it to BAILII
- Work is required to achieve a common purpose in the process of improving transparency, including:
- engaging representative bodies for children and families
- consultation and agreement with professional bodies on the purposes of publication, in particular to inform decision making about naming, accountability and fairness
- further clarification of the intention of the January 2014 guidance in designating publication (of certain judgments) as ‘the starting point’, and the steps to be taken in the judicial balancing exercise between competing rights
- The useful 2011 Family Courts: Media Access and Reporting Guide needs updating (particularly to support journalists)
- Further research would help, including on:
- the effect on media reporting and the particular impact of local press and radio on identification of children and families;
- methods of public legal education (including how Bailii might be made more navigable)
The research is not only interesting but important. It provides the beginning of a more comprehensive evidential basis from which to move forward on transparency through publication of family court judgments; expanding as it does the existing research base currently focused largely on the important (but narrow) aspects of risk of identification through judgments and young people’s views. It also identifies some of the key questions and challenges for moving forward and starts a process of constructive suggestion.
The patchy level of engagement with the guidance nationally seems mirrored by an alarmingly low level of engagement with the research surveys, both by judges, and practitioners bodies representing social workers, children and families. We speculate that in the case of the judiciary this may reflect not just lack of capacity but also attitude to publication in the particular family court centre and wider local authority . In the case of bodies representing children and families we speculate that it may sometimes also reflect choices about prioritising a cogent organisational view in an area of complex law and procedure with a long history of non consensus.
The press release rightly reminds us that ‘shining a light’ on the workings of the family justice system does matter, as McFarlane LJ re-iterated during the first inaugural Bridget Lindley memorial lecture:
- there is a significant and growing distrust shown by some parents in child care lawyers and judges
- Unfortunately, the vacuum created by the lack of sound and accurate information about the system provides a space into which ill-informed, and at times deliberately incorrect, commentary and advice can be introduced
- The response “I am simply too busy to do any of that” is entirely understandable. But, how much of the busy-ness of our respective professional lives is taken up with unpicking the results of steps taken by those who have been ill-informed of what is required of them at an earlier stage. Time spent in making our processes much more transparent and accessible must surely go to reduce the ultimate complexity and burden of cases further down the line as well as achieving the higher aim of improving access to justice.
The report includes several references to the work of the Transparency Project, both in examples of some of the issues raised and being cited by respondents to the research team’s questions about public legal education.
The Transparency Project has produced a Media Guide for those wishing to write about the Family Court. We will be launching it at our event Reporting the Family Courts – Are we doing it Justice? on 5 April 2017. It will be available on this website shortly.