More family judgments than ever before are being made available to the public, primarily through BAILII.
But sending a judgment to BAILLI doesn’t in itself mean that the public are better informed or that they are able to access the information held on that site in a meaningful way. Put shortly, publishing judgments doesn’t necessarily increase transparency.
It sometimes feels as if judgments are written with the Court of Appeal in mind rather than the families involved or the public who might read them. Of course they have to set out the law, and that often is complex, so it’s difficult to make them easy to understand by non-lawyers. But we don’t think it’s impossible in most cases. Or at any rate we think that there are things that can be done to make judgments more accessible and hence more useful to a wider range of people.
We are currently considering a project on this topic, perhaps with the aim of producing some best practice guidance, and are wondering if it would be helpful to do a bit of “road-testing” of some judgments to see how non-lawyers do understanding what they are about and which bits are important, before refining those guidelines.
Since it’s launch in 2009 the Supreme Court has published press summaries of its judgments which are really useful. Inevitably, because the Supreme Court deals with the most complicated cases in the land, even the summaries can be quite tough going for a non-lawyer, but they are a real improvement on a standalone judgment. Other courts rarely do this.
In the Technology and Construction Court, some judges have taken to using a template which has standard headings, in seven sections:
- The parties
- The Facts
- The law
- The arguments
In the Family Court and Family Division practice varies. Some judges use a table of contents for longer judgments, like this judgment of Cobb J in Local Authority 1 (“LA1”) & Ors v AF (Mother) & Ors  EWHC 2042 (Fam) (20 June 2014). In other cases, even though children are invited to read judgments they are lengthy and full of complex terminology and words like “admonition” (see K (Children)  EWCA Civ 1195 (02 September 2014)).
[Amendment : I forgot to include a link to this judgment : Milton Keynes Council v A, B, C and X and Y (Muslim children, Special Guardianship)  EWFC B102 (14 May 2014) which is a really good model, with a 3 line summary at the start.]
The practice of some family judges is to announce their decision at the outset, sometimes giving summarised reasons, and subsequently delivering full reasons. This gives parents who are faced with an unwelcome decision an opportunity to leave court without having to sit through a lengthy judgment, uncertain what the decision will be.
Whether a judgment is delivered orally to parents or other parties, or subsequently published on BAILLI or elsewhere a summary at the beginning, perhaps as a separate document, would be very helpful. Such a summary should explain the case in layman’s terms, or at least in terms comprehensible to the human parties. A final paragraph headed “What I have decided” would also be a boon. A summary would also make BAILII easier to navigate, and would make it easier for browsers or searchers to locate material of interest.
There are however real resource implications for judges arising from all this. Approving a judgment or transcript for publication is time consuming – it must be proof read and anonymised. Drafting of an appropriate summary that accurately captures a difficult judgment will take time too.