Transparency in the Family Courts evaluated – could do better
In 2014 the press enthusiastically reported an end to the culture of secrecy in family courts, when the President of the Family Division, Lord Justice Munby issued guidance to judges telling them to publish more judgments, more often, particularly in care cases where the powers given to the state over families are both draconian and controversial.
Last week an evaluation of the impact of that research was published, which suggests that this project, at the time intended to be the first step in a programme of broader ‘transparency’ reforms, has been of limited success (here).
That this is so comes as no surprise to The Transparency Project, or indeed to anyone working in the family justice system. It is in crisis, as Munby has subsequently conceded, due to its ever increasing workload and never increasing resources.
And so, although the reasons for this are multi-factorial, the fact that judges (and no doubt other players in the system) are hugely busy has had a significant impact on the ability of the system to deliver the significant increase in publication that had perhaps been hoped for in 2014. The study evaluated the first two years post guidance, and that showed 837 judgments published as a result. This is several hundred more than would have been the case without the guidance, and some of these cases have gone on to become news stories that would never have been without – but it is a very small percentage of the potential judgments covered by the guidance.
It’s impossible to state with any certainty what percentage because the statistics just aren’t there. We know that the numbers of care cases far outstrip the numbers of judgments (more than 20,000 children were made the subject of care orders in the period evaluated) – but each case may involve more than one child, and each case may involve more than one judgment or none. And not all judgments fall under the scope of this guidance (cases before lower tiers of judge do not, and some interim decisions do not). But that there are more judgments that could, ought, to have been published is undeniable.
Judicial ambivalence about the principle of publication in sensitive cases of this sort plays a part too. Some judges are enthusiastic publishers, whilst others are not. Even those who are enthusiastic in principle but simply don’t have the time, and only sometimes manage to add this to their workload.
It would be a mistake to think that publication is not an onerous task. In itself it is not. But in cases involving children, vulnerable adults and intimate details of abuse and parental catastrophe, proper anonymization is an essential prerequisite of publication. And it is this which has caused both practical difficulty and has generated significant anxiety.
Anonymisation is not a simple case of replacing a name with an initial. Details such as date of birth, location, the identity of key professionals, the particular characteristics of the family such as religion, disability or number of siblings may all contribute to jigsaw identification if not to the world at large, to some within the community in which the family are living. It has to be done properly and it has to be done before publication. The Transparency Project and others have reported a number of cases where this has gone wrong, and has called for a more robust process and proper resources to carry out this important work, rather than leaving it to judges who have no time. The result is either rushed publication with a risk of identification or harm, or a failure to publish because the judge cannot afford the necessary time and attention. Neither is satisfactory.
The question of risk of harm arose. It was asserted that there was evidence of actual harm being caused to children as a result of these issues. There is none. There is plenty of evidence of anonymization failures, and therefore of a risk of harm (which should not be minimized), but it is important to be clear that no individual examples of actual catastrophe have been provided. The Cardiff researchers asked a range of individuals and organisations with experience in this field if they had evidence of such harm, and none of those who responded were aware of any individual cases of actual harm to children. Organisations included the National Youth Advocacy Service, the Children and Families Court Advisory and Support Service (CAFCASS), the Family Justice Young People’s Board, and the family lawyers’ group Resolution. Two judges each reported a single incident of local identification of a parent from an anonymized judgment / local press coverage. None reported identification of children.
Whilst Dr Brophy herself, through the Association of Lawyers for Children, has carried out a number of studies on the topic of children’s views about these issues, those studies evidence the views and fears of small numbers of children when presented with a particular scenario (here and here), which I wrote about at the time (here). They are not studies about children who had actually been identified or harmed. There may be such cases, but to date they have not been publicly identified nor formed the basis of any published research study.
It is important in these discussions to properly distinguish between worry and harm, and important in doing so not to inadvertently create harmful worry. The focus should be on how we can improve processes for proper anonymization so that children and parents can be reassured rather than frightened by professionals who work with them and by what they read or hear, and so that the public can understand and perhaps be reassured about the work of the family courts. Alongside the potential harm caused by publication, and the harm caused by abusive parents, we must weigh the potential harm to children who have been unable to go home because their parents have been unable to engage with a system that they, along with so much of the public have no faith in.
And so, the issue is not whether we should publish or not, the question is how we can publish with more care, and in doing so how we can publish more. We can only depart from the principle of open justice where that is truly justified – if anonymization can be carried out more effectively and the risks reduced then halting the process of reform in this area for effectively administrative reasons would be a failure.
The research makes a number of pragmatic proposals in the light of the current environment of limited resources, and we hope that some way forward can be found. There is obvious public interest in the publication of information about family law and the work of the family courts, and the public deserve a better information base upon which to form their views than the reports of some newspapers who start from the proposition that the family courts have some awful secret to hide.
As noted by the authors of the Cardiff report, the publication of judgments is merely one aspect of improving transparency. Through its Family Court Reporting Watch initiative, The Transparency Project are working to ensure that those judgments which are published are properly reported and explained, and that the public are signposted to the judgments themselves, so they can form their own views about the issues and the quality of reporting.
There is a reminder of the need for this work in The Telegraph this week, where critic of the child protection and family court system Christopher Booker suggests in response to a recent speech by Lord Justice Mcfarlane (here), that transparency reform will be a dead duck once Lord Justice Munby retires next year, as well as inaccurately suggesting that children are removed merely because of parental non-co-operation with professionals.
Fortunately, the judiciary publish the full text of all speeches in full, and it is therefore possible to see that Booker’s conclusion rests upon the false proposition that McFarlane (tipped by Booker to succeed Munby) is anti-transparency and a defender of the system. In fact, the speech has been widely praised for challenging how and what the system does to protect children, and a good chunk of the speech is devoted to the topic of transparency, of which McFarlane is explicitly a supporter. Publication of source material like judgments and speeches is not in itself transparency ‘done’ – but it is through such publication that inadvertent or willful errors and misconceptions can be highlighted and corrected. And then people can make up their own minds.
Lucy Reed is a barrister and chairs the Transparency Project, She practices at St John's Chambers and writes the Pink Tape family law blog