Family Law

The President of the Family Division Sir James Munby has released a Consultation Paper regarding ‘Transparency – The Next Steps’. We have seen, over the process of reform this year, the President’s continued wish to demystify the Family Court and this paper outlines the intended ways of achieving that goal.

In a nutshell:

The public needs to understand the Family Court and what it does, without compromising confidentiality or the private and family lives of those involved in the court system.

When:

Practice Guidance: Transparency in the Family Courts – Publication of Judgments [2014] 1 FLR 733 – was issued on 16 January 2014 and took effect from 3 February 2014.

The Consultation Paper:

Transparency – The Next Steps: A Consultation Paper was issued on 15 August 2014.

Summary of the Paper:

The need for greater transparency is to increase public understanding and confidence in the court system and allow everyone to see what is being done by the judges.

Increased reporting

The Practice Guidance has been significant in increasing the number of judgments in family cases being published on BAILII. This increase in reporting will have consequences, and the President particularly wants to hear any views regarding:


Case listing

Further sought are any views and suggestions as to the way cases are listed in the Family Division and the Family Court, so that court lists are more informative as to the subject matter of the cases (without naming the parties). The current case number procedure (which uses the identifying code of the court, the year of issue, a letter to identify the type of case and a sequential 5 digit number) is understood by practitioners although not, it is thought, by others. One suggestion for making the listing clearer is that a catch-phrase or some catch-words might be added after each case number to indicate in slightly more detail what the case is about.

Disclosure of documents

A pilot project to deal with the issue of disclosure of certain categories of document to the media is a possible next step. Likely to be confined to High Court judges sitting in

Category (2) is more complicated and controversial. Not every expert’s report would be released but only those identified by the judge, having heard submissions.

Consideration may have to be given as to whether the report should be redacted or anonymised and if so who should carry this out.

It is envisaged that initially documents and reports disclosed in this way would remain confidential, unless ordered otherwise, so any copying or onward transmission by members of the media would be a contempt. Where such disclosure was being considered, the expert should be informed prior to disclosure. It would be of note to see whether the prospect of disclosure of their reports would have an impact on the willingness of experts to be involved and also on the content and quality of their reports.

Particular points of interest to the President are:


Hearings in public

Preliminary, pre-consultation views are also being garnered about the possibility of certain types of family cases being heard in public. This is at the early stages of discussion and if the matter proceeds at all, it would initially be by way of a pilot. Views are predominantly sought on three questions:


When a family court sits in public, the protection offered regarding publishing information under section 12 of the Administration of Justice Act 1960 no longer applies. Furthermore, the confidentiality attached to documents and information produced under compulsion ends when the material is read out in open court. This has particular ramifications in the context of financial remedy cases. Consideration will need to be given to the implications of both these points and whether any other restrictions and safeguards need to be put in place.

To do: