Wigan Borough Council v Fisher & Ors v Fisher & Thomas (Rev 1)  EWFC 34 (21 April 2015) is a decision of Mr Justice Peter Jackson in which he considers whether a judgment in care proceedings should be published. The interesting features of it are :
The application was dealt with on paper (without a hearing) as the judge felt he had sufficient information from the written submissions sent in by the parties on the issue.
There had been delay in the court deciding whether to publish the judgment because of difficulties in sorting out the Mother’s legal aid to be able to make her submissions. The judge said :
The question of whether a judgment should be published is an integral part of the proceedings from which it arises and I consider that where a party is legally aided, any work that is necessary to contribute to the court’s decision on publication should normally be covered by the party’s legal aid certificate.
This is important and useful clarification for future cases where an issue about publication of a judgment arises after the main matter has concluded. It is not binding on the Legal Aid Agency, but it will be useful to wave around for parties having difficulties.
This is one of the first decisions to deal specifically with a dispute arising under the Transparency Guidance issued by the President in early 2014. Peter Jackson J said :
A salient purpose of the guidance is to promote understanding of and confidence in the proceedings of the Family Court. But beneficial though that goal is, it is not an end in itself. Rather, it is part of a necessary process to ensure that the rights of individuals and the public, referred to above, are properly balanced. That cannot happen if confidentiality in the proceedings of the Family Court, a public body, is allowed to trump all other considerations. A balance has to be struck in each case, using the guidance as a valuable aid. There will still be cases where, notwithstanding the guidance, publication is not permitted, and other cases where the judge will authorise wider publication than that contemplated by the guidance.
The guidance is not a mantra then, and publication is not automatic. The court must balance the competing rights of individuals and the public in each individual case.
The judge also notes that :
The guidance has had a marked effect. In 2014, its first year, over 300 judgments at High Court level were posted on the Bailii website, together with 160 judgments by other judges. These numbers are a very substantial increase on previous levels of publication, particularly in relation to judgments in local family courts. As a result, there is a very considerable body of material available to anyone who wants to better understand the way in which our proceedings are conducted.
Unusually, on the facts of this case, the court permitted publication of the main fact finding judgment with the names of the parents (but not the children) included. This was in order to redress the balance where there had been concurrent criminal proceedings following the death of a sibling, and following his acquittal for that charge the father had made public remarks that tended to cast doubt on the mother’s involvement in the death, when in fact the family court had found the father to have been responsible for it and had exonerated the mother.
The court allowed 28 days to elapse before publishing the judgment (the time limit for appeal plus a bit extra).