New Practice Guidance to increase transparency in Family Courts

Sir James Munby, President of the Family Division of the High Court and the Court of Protection, has issued Practice Guidance in order to bring about ‘an immediate and significant change in practice in relation to the publication of judgments in the Family Courts and the Court of Protection.'

The Practice Guidance has been issued in a bid to bring about greater transparency in the way in which the courts operate so as to improve public understanding of the court process and increase confidence in the court system.

The Guidance, which will take effect from 3 February 2014, will increase the number of judgments available for publication. It is part of a three-strand incremental approach to the reform in the family justice system, which Sir Munby is introducing: ‘Initially I am issuing this Guidance. This will be followed by further Guidance and in due course more formal Practice Directions and changes to the Rules (the Court of Protection Rules 2007 and the Family Procedure Rules 2010).

In April 2013, Sir Munby issued a statement, View from the President's Chambers: the Process of Reform [2013] Fam Law 548, in which he said: ‘I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.'

To begin with, the Guidance applies only to judgments made by certain judges; however, in due course, it may be extended.

The starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published and permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest.

However, Sir Munby maintains that any person who is the subject of proceedings in the Court of Protection and their family members should not normally be named in the judgment unless the judge orders otherwise. Also if deciding whether or not to publish a judgment, a judge should have regard to all circumstances, including rights arising under relevant provisions under the Eurpoean Convention on Human Rights (ECHR) such as Article 6 (right to a fair hearing), Article 8 (respect for private and family life) and Article 10 (freedom of expression), and the effect of publication on any current or potential criminal proceedings. Public authorities and expert witnesses, however, should be named unless there are compelling reasons why they should not be.