A Call For Greater Transparency In The Family Courts

Sir James Munby, President of the Family Division and the Court of Protection, issued guidance in July 2013 promoting the need for “greater transparency in the family courts”. The need for reform in family courts has been a longstanding source of debate as, unlike in criminal courts, family proceedings are held in private where media presence is not permitted. Consequently, judgements are not readily available, creating a gap in public confidence and general understanding. Munby’s concerns clearly reflect an unrest within the judiciary itself in favour of reform.

Readers should be aware that this is not the conclusion to the debate, as only Parliament has the power to open family courts to the public in totality by making changes to legislation, it could be argued however that Munby offers a step in the right direction. The new guidance creates a presumption in favour of publishing all judgements, unless there are “compelling reasons” for not doing so. The plan is for judgements to be published on the Bailii website: ‘www.bailii.org.uk.

How will it work in practice?

  • Although there will be a presumption in favour of publishing, the judge will still have a discretion as to the level of detail to be revealed and whether the names of parties are to remain anonymous.
  • However, it is likely that an individual’s right to privacy in their family life (Article 8 ECHR) will mean that the names of parties are removed in the majority of cases.
  • Parties will certainly have the opportunity to put forward views on the subject before their judgement is published.
  • Sir James Munby suggests a balance must be struck between the public interest in transparency and an individual’s right to his private life. There will obviously be cases where publication of a judgement is inappropriate, but the Guidance recommends that this should only be the case in compelling circumstances.

What are the advantages of greater transparency?

  • Greater public confidence in the family court process,
  • Increased accountability for judgements and
  • Greater public understanding.

By removing the “veil of secrecy” it is hoped that this will aid the public’s understanding of the court’s way of thinking and help to dispense with common misconceptions as to the intentions of the family court. It appears the court wishes the public to see that their primary concern is for the welfare of the child and that, where possible, the court believes a child is best placed with its family.

What does this mean for me?

If you are a party in family proceedings you may find that:

  • The Judge will consider publishing his final judgement online.
  • You will be able to express your view to your solicitor or barrister, if you do not wish for this to happen your case will be put forward. If the circumstances are compelling your privacy will be maintained.
  • It is more than likely that names and locations will be removed from the judgement so that you are not easily identifiable.