An Immediate Change for the Family Courts

27 Jan

Kicking off the blog topically, as blogs themselves are a media publication, with a brief overview of the new guidance just handed down by the President of the Family Division, Sir James Munby, concerning transparency in the family courts.

Read More

Royal Courts of Justice

 

Kicking off the blog topically, as blogs themselves are a media publication, with a brief overview of the new guidance just handed down by the President of the Family Division, Sir James Munby, concerning transparency in the family courts.

You many recall the case reported heavily in the press last December, which involved Essex County Council and an Italian woman, who came to this country pregnant in 2012. The woman became unwell and was detained under the Mental Health Act, then gave birth to a child via caesarean section, which was done against her will.  The Local Authority subsequently sought to place the child for adoption, the mother, who now appears to have recovered, is seeking the child’s return. The case came to prominence after Essex County Council sought a reporting restriction to prevent details of the mother’s name, following her complaining publicly about the way that she had been treated, which gave rise to dramatic headlines in several national newspapers.  The President allowed publication of her name and details of the case, setting out the [see Re P (A Child) [2013] EWHC 4048 (Fam), link to judgment can be found at Family Law Week http://www.familylawweek.co.uk/site.aspx?i=ed123247).

Following this hearing the President took charge of the case, reserving all future hearings to himself opining in the concluding discussion of the case at paragraph 44 that:

“The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?
45. The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.”

The promised radical changes are now here, although whether they will turn out to be radical is yet to be seen.

The President has described his approach to the issues as "incremental" and has made it clear that there are further changes in the pipeline. The new Guidance applies only to judgments delivered by certain judges, but after the introduction of the Family Court in April 2014, consideration will be given to extending it to judgments delivered by other judges (including lay justices).


The President also made clear that the guidance does not overrule judicial discretion, opining that: "Nothing in this Guidance affects the exercise by the judge in any particular case of whatever powers would otherwise be available to regulate the publication of material relating to the proceedings. For example, where a judgment is likely to be used in a way that would defeat the purpose of any anonymisation, it is open to the judge to refuse to publish the judgment or to make an order restricting its use."


The President’s guidance for transparency in both the family courts and the Court of Protection can be found by following the below links:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/transparency-in-the-family-courts-jan2014.pdf (Family Courts)

http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/transparency-in-the-cop.pdf (Court of Protection).

The guidance is user-friendly; the documents are 6 and 5 pages respectively.

The main points can be summarised as follows:-

Family Courts

•    Family Court guidance applies to the High Court and County Courts.
•    There are two classes of judgment: (a) judgments that the judge may ordinarily allow to be published; (b) judgments that may be published.
•    Class (a) includes all judgments that would be in the public interest (N.B. no party or media need apply for leave to publish), and they will be published unless there is a compelling reason for them not to be published.
•    Class (b) permission may be given whenever a party or accredited member of the media applies for an order to permit publication and the judge concludes that permission should be given to publish the judgment.
•    Responsibility for anonymising the judgments, if it has not already been done, lies with the solicitors, in class (a) judgments, the solicitors for the applicant and in class (b) judgments, the solicitors of the party seeking publication.

Court of Protection

•    The same classes of judgment as for Family Courts apply, i.e. (a) judgments that the judge may ordinarily allow to be published; (b) judgments that may be published.
•    Unless the judgment is already anonymised, any necessary anonymisation of shall be carried out as the judge directs.

The guidance will come into force on 3rd February 2014, so we wait to see the impact on cases we deal with in Court and also expect to see a steep rise in the number of reported family court judgments.

The President has described his approach to the issues as "incremental" and has made it clear that there are further changes in the pipeline. The new Guidance applies only to judgments delivered by certain judges, but after the introduction of the Family Court in April 2014, consideration will be given to extending it to judgments delivered by other judges (including lay justices.

"Nothing in this Guidance affects the exercise by the judge in any particular case of whatever powers would otherwise be available to regulate the publication of material relating to the proceedings. For example, where a judgment is likely to be used in a way that would defeat the purpose of any anonymisation, it is open to the judge to refuse to publish the judgment or to make an order restricting its use."
The impact on this for Local Authorities and lay clients is yet to be seen

Zosia Keniston

For more information on Family Law, click here.