Transparency, openness and the family Courts, and the President’s proposal for changes.
The title of this piece comes from an American Supreme Court Justice, Louis Brandeis, and is a remark often quoted by the President of the Family Division, meaning that exposing something to scrutiny is the best way to make sure that it is clean.
The President has long been a believer that the best way to manage the family Courts beleaguered reputation is to have the information about the way cases were decided out in the open, rather than remaining secret. Having transparency means that an informed debate can be had, rather than one based on supposition and partial accounts, and suspicion.
There’s obviously the balance and tension between making cases public and preserving the confidentiality of the children concerned, but the constant cry from the Press and commentators that the secrecy of the family Courts is proof that miscarriages of justice are routine and that the system is flawed, perhaps even corrupt, means that transparency was always going to be required at some point.
If the system is flawed and children are being removed by the State for the sort of reasons that the Christopher Brookers of this world claim, then it is vitally important that the evidence and information that would allow that claim to be proved is out there and available to those campaigners. That is important even if it is only a few cases where these things are happening.
This is the DRAFT practice guidance, issued by the President on 13th July [sorry 13 July]. It is not in force yet, but I would anticipate it coming into force in the foreseeable future.
Unlike the other guidance published the same day, which for some inexplicable reason considers that what words are capitalised and whether one writes 17 May 2013 or 17th May 2013 is the pressing issue facing the family courts (rather than financial meltdown, injustice etc) http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/annex-c-family-orders-project-house-rules.pdf
I am actually rather supportive of the transparency proposals.
The draft guidance effectively proposes that the STARTING point in all care proceedings, adoption cases or deprivation of liberty cases should be that an anonymised version of the judgment should be published, and posted to Bailii unless there are compelling reasons not to do so. [I would be slightly interested to know whether the MOJ are going to give Bailii some money for this project, I hope so]
Other categories of cases should have anonymised judgments available on request.
I happen to believe that it is appropriate (providing that the anonymisation process is done carefully so that the identity of children cannot be deduced) that the public are able to see the reasons for the State making orders, particularly Care Orders or Placement Orders about children.
At the moment, anonymised judgments are available only where the case involves an important legal principle, or is an appeal hearing.
This proposal of all judgments being published will be across the board, not limited to cases of a particular type, and will allow firstly, journalists reporting on a case to actually read the judgment in the case to have an INFORMED understanding of what happened, and secondly, allow for proper analysis of the reasons for State interventions and patterns, themes and trends that emerge.
It will also give researchers the opportunity to collate information from cases overall, mapping out whether there are trends, differences in areas, differences over time.
It will also allow for proper, evidence-based research and debate over things such as emotional harm, when we can see the extent to which emotional harm (or obesity, membership of UKIP, or any other “hot-topic”) is a factor in State intervention.
I have 3 thoughts that come to mind :-
1. There does need to be some thought as to how these cases will be searched for or stored on Bailii – the signal to noise ratio problem. At the moment, practitioners know that every family law case posted on Bailii has something of potential significance and wider principles on it, and can read it (or read the summary of such cases that family law bloggers write).
But those cases of wider significance are a very small proportion of the cases being decided every day (and soon to be published every day). Each and every one of those cases is deeply significant for the people involved, and will be statistically significant for research purposes, but in terms of practitioners spending time reading them most of them are very fact-specific and not of wider interest.
Do we increase the chance of the cases of wider significance being missed or drowned out by a volume of material?
- In amongst all of the other judicial duties, including the much more robust case management ones being imposed by the revised PLO, will the Judges be allocated time to the careful anonymisation work that is necessary?
- This one is undoubtedly more fanciful, but it might be worth some thought. Knowing your tribunal is always helpful, but this system would allow the carefully prepared to look at the decisions and judgments that an individual judge has made, and to pick up on themes, trends, perhaps even idiosyncrasies. Perhaps Judge Anderson seems to very often go with the conclusions that Dr Burner reaches, but doesn’t care much for Dr Honeydew. Perhaps Judge Broad seems to be quite hard on substance misuse cases, but has a soft spot for parents who had been in care themselves. Perhaps it appears that Judge Finn prefers local counsel to out of towners – perhaps even that Judge Trott has certain counsel who always seems to do well in front of him, and you should book them for your case, but that they really don’t like Alastair Smoothie of local chambers. All of this is currently about by hints and anecdotes and suspicion, but if the hard empirical evidence of all the cases were known it would be a bit different.
[Of course, one might say that Judges ought not to have those little foibles and idiosyncrasies and should come to each individual case as a tabula rasa and judge each case entirely on its own merits; and the overwhelming majority of them do, but one might argue that it would be a GOOD thing that the MOJ could potentially work out where this was not the case.]
If that raw data is there, one could also extrapolate, if one had the time and resources, some actual league tables – of the 81 cases that Alastair Smoothie represented parents on, what were the outcomes? How does that compare to Juliet Handwringer? That could be a good thing, if parents and solicitors had hard data on which barristers are more likely to produce good outcomes – it could also be a bad thing, if counsel fight shy of taking on the more difficult cases to win if they are worried about their place in the informal league tables.
[In reality, I don’t think that anyone will have the time and resources to undertake those exercises with the raw data, but just in case, I’m going to trademark Compare The Counsel. Simples]
None of my 3 thoughts are, in my humble opinion, good reasons not to go ahead with transparency. It is an idea whose time has come.