James Munby, head of high court’s family division, to continue far-reaching reforms to bring more transparency to the system
Family court hearings are to be held in public for the first time, in a radical trial being pursued by the leading family judge for England and Wales, the Guardian understands.
Sir James Munby, the president of the family division of the high court, is to continue far-reaching reforms to bring more transparency to the system in 2017 by launching a trial in which some types of hearings would be held in public.
It is expected appropriate orders will remain in place to protect the identities of the participants. A separate plan is being considered to allow the media access to documents from hearings that have previously been kept secret.
Women who have suffered domestic violence and experienced the family courts broke the ban on discussing their cases to reveal to the Guardian how they believe the secrecy of the system allows them to be further abused by ex-partners.
Claire Waxman, of Voice4Victims, who campaigns to highlight abuse of process within the family and civil courts, welcomed moves to increase the openness of the court system. “We would support the increase of transparency in the family courts,” she said. “We are seeing far too many victims of stalking and domestic violence being exposed to unnecessary risk and harm in these court proceedings.”
But Munby’s changes are likely to be opposed by much of the legal profession working within the family division.
Joanne Edwards, former chair of Resolution, the national family law association, and head of family law at Forsters, said: “There is pretty widespread, if not universal, opposition to the public hearing pilot which is being suggested and to the release of court documents to members of the press.
“There is strong opposition to any further opening up of the court amongst the professions. For us it is about safeguarding the interests of children who, unlike in criminal proceedings, invariably become embroiled in family proceedings through no fault of their own. There is a real risk of jigsaw identification and once details of their private family life are out there, they can never be retrieved. The resulting harm to children can be profound.”
Family courts, which deal with issues such as divorce, financial provision for children, contact with children, adoption and local authority intervention to protect children, were opened to the media in 2009, but hearings largely remain secret. Judges can limit media attendance, there are tight restrictions on what – if anything – can be reported, the media have no access to documents and can be ordered to leave the court on the decision of the judge or magistrate.
Munby consulted closely with senior lawyers in Australia, where family courts have been held in open hearings for the last 30 years, before launching the reforms. He has said pursuing further transparency in family courts is a subject close to his heart.
He issued guidance in January 2014 aimed at encouraging judges to publish their judgments on the judicial website Bailii in redacted and anonymised forms to protect the identities of children. But the guidance only applied to the top level of judges and in the vast majority of family cases heard by district judges and magistrates, judgments are not published.
According to Ministry of Justice figures, 225,590 cases were completed in the family court in 2015, almost half of which were divorce cases. In the same year, judges published 469 judgments on Bailii.
Prof Julie Doughty, lecturer in law at Cardiff University, who is being funded by Nuffield to research transparency in the family courts, said current measures did not go far enough. “The judicial guidance of 2014 hasn’t ended the perception and allegations of secrecy in the family courts,” she said. “I don’t think you get transparency through publishing judgments on Bailii. To get transparency you have to present it in a way people can understand and make sense of quickly. Bailii does not really help the system become more transparent at all.”
In a consultation document issued to lawyers in 2014, called Transparency: the next steps, Munby acknowledged the profession’s “nervousness” about further moves to increase transparency. But he said there was a need for greater openness to improve public understanding of the court process and confidence in the court system. “The public has a legitimate interest in being able to read what is being done by the judges in its name,” he told lawyers.
He is likely to announce progress in the new year on the two key reforms in the consultation document: a pilot of family hearings being held in public, and the release of documents to the media. The latter will include case summaries, skeleton arguments of the case, documents which are issued during fact-finding hearings – for example where allegations of domestic violence have been made – and experts’ reports, to allow the media to perform their watchdog role in society, he said.
Munby has already canvassed initial views on the public hearings and if he gives the go-ahead for the trial, it will go out to further consultation with the profession.
But responses to his consultation were almost universally hostile. The proposals were rejected by the Association of Lawyers for Children, which has 1,400 members, the Family Law Bar Association, Resolution, the national family lawyers’ association, and Family Justice Young People’s Board, a group of young people who have had direct experience of the family justice system.
Cris McCurley, a family lawyer who specialises in representing black and minority ethnic women in cases involving extreme domestic violence, said holding hearings in open court could stop vulnerable women taking part in hearings. “Family courts hear intimate personal details and even with anonymity imposed I think the particulars of cases would be identifiable certainly within their communities,” she said. “My worry is it would stop women coming forward to seek help to protect their children.”
Lucy Reed, a family law barrister, who runs the Transparency Project, which aims to increase understanding of the system, said opening up the courts further should be an issue for parliament to discuss.
A spokesman for the judicial communications office said Munby intended to issue further guidance on the issues raised in his August 2014 consultation on transparency in the new year.
Taken from The Guardian 23rd December 2016