Reports suggest that the President of the Family Court will launch a trial whereby a limited number of hearings are to be carried out in public.
Sir James Munby is well-known for his continuing push towards transparency in the family justice system. Not so long ago Munby encouraged judges to make their judgments available online for practitioners and the public to access.
Currently Family Court proceedings are held in what the press likes to describe as ‘secrecy’ with ‘secret courts’ making decisions that affect the public. And yes, this is true to an extent, but there’s nothing sinister about it. Family proceedings are kept private to protect those involved. Children are the subject, or at least a key factor, in the vast majority of family law cases. Their right to privacy must be balanced against the public’s right to information. After all, it wouldn’t be very nice, and could potentially be very damaging, for a child to be able to access court records from, say, a custody battle or an adoption hearing. It’s not a just the child in question that could access information – school friends, future colleagues – anybody, in fact – would be able to get hold of very personal and private information.
Resolution, the body for family lawyers, has criticised the move on the basis that there could be “profound” harm to children that uncover information that should be kept private or only revealed to them in a child-focussed way.
MoJ figures show that in 2015 almost 230,000 cases were heard by the Family Court but only 467 judgments were made publicly available. Guidance currently exists to help judges increase this number by carefully anonymising their judgments for publication.
The fact is that the vast majority of cases will not be sufficiently interesting in the purely legal sense to warrant publication. Preparing judgements for publication takes time and publishing them takes time and money – so why publish them if there is no legal benefit? Public trust is the key reason. The court system should be seen as open and transparent and a move towards publishing more and more judgements is a move towards transparency and accountability to the public.
A hot topic in family law and the legal press of late is the cross-examination of vulnerable witnesses by the very person they accuse of abusing them. It is not a great leap to see how these witnesses, already under a great deal of stress, would be further intimidated by the thought that very personal and upsetting aspects of their private life could be made public. With the best will in the world, due to timing and locality, even the best anonymised judgements may still be recognised by those featured in them.
We would welcome the publication of more judgments and the opening up of hearings from a learning point of view. These things would provide invaluable resources for junior solicitors learning their craft. And of course, anything that can bolster public trust in the legal system is worth consideration. But behind all the legal process and procedure there are real people, children and vulnerable adults, and until they can be absolutely protected, it is clear that opening up the Family Court is a very risky business which should be viewed with caution.
