Transparency... Coming to a "secret" court near you?

A few weeks ago I wrote about the Family Courts Information Pilot, a project trialled by the Ministry of Justice and some participating courts whereby written judgments were produced for certain types of cases.  The point of the project was to enable a) children to have access to written judgments in cases that were about them in later life, and b) the public to have access to anonymised versions of these judgments via the website Bailii.

At the time of writing I felt pretty despondent about the likelihood the government would roll out the scheme nationally because of the resources required to produce the anonymised judgments, in a family court system under high pressure.  But on Thursday a comment in the government's response to the House of Commons Justice Committee report on the Operation of the Family Courts made my heart lift:

There is a tension between allowing the media to publish even limited information about cases in the interests of increasing public confidence and a child’s right to keep personal information about them and their experiences private. There is a danger that justice in secret could allow injustice to children, or a perception of injustice. [said the Justice Committee]

75. The Government agrees, but we believe that this complicated and sensitive area of law needs to be reviewed carefully, including gathering the views of children who have experience of the family courts. Therefore, we will not be bringing forward further legislative change in the near future. We will instead look at measures that can increase the amount of publicly available information about the work of the family courts, including encouraging judges to publish more family court judgments. In particular, Ministers will examine the results of the family court information pilot, which trialled the online publication of family court judgments in an anonymised form.

Perhaps the government will make a more effective attempt to press the courts to produce more anonymised judgments for cases in the family courts?  There was a wide range of support for this in the evidence heard by the Justice Committee.  In response to the question 'How do you believe we can balance the need for openness and accountability with the need to protect children from what could well be adverse publicity?' Professor Lynne Harne responded 'Supposedly by what we have now—anonymised reporting of cases. We have that in the legal journals and so on to some extent, but often only cases which are interesting legally, if you like.'  Dr Julia Brophy contrasted the potential of public education through publication of online judgment with increased media access, drawing upon Australian experiences to support her argument:

The issue about finding out how very difficult decisions are made will not come, I feel, through the media for a variety of reasons, but foremost they actually don’t have the time or the access to be able to do that. I don’t think the issue of public education is going to be served by media access and reporting. It has to come by another mechanism. One of those mechanisms is the pilot scheme for anonymised judgments. That can be improved enormously, I think. For example, in Australia online judgments enable people to look things up. If you wanted to look at something around domestic violence, there is an index that will allow you to look at cases where that has been dealt with. If you wanted to look up issues around whether fathers were suffering bias or discrimination, they are categorised in that way. So the pilot scheme could be tailored to look at contemporary issues and problems in a way which would help the public directly rather than through the media. The media will only ever be able to talk about one case at a time. What we’re looking at is the trend of family courts and how the public can feel confident about the way in which they operate. A one-off reporting of one case, where a journalist talks to a disgruntled litigant, will not help the reputation of the family courts. What you want is fair, accurate, balanced reporting.

Echoing the concerns about indexing of judgments raised in the Ministry of Justice report on the Family Courts Information Project, Dr Brophy later said:

A more focused, indexing of judgments placed on the Baili website from this pilot would enable parties and the general public to explore specific issues by topic area with headings explaining the issues and complaints which judgements seek to address.

Dr Kaspiew, an Australin legal academic, talked about the unquestioned character of transparency in the Australian legal system:

It is very much a part of our culture. In fact, over the years the trend has been towards more openness. In fact almost all judgments are now de-identified and put up on the AustLII website. I understand you have a similar legal information website in the UK. Almost all judgments are de-identified and placed on that website. The courts are open. It seemed to reduce the possibility that mischievous claims can be made about what goes on in family courts. It seemed to contribute to a greater understanding among the general public of what happens in family courts, how matters are dealt with and the types of outcomes that occur.

Dr Kaspiew also affirmed that the publication of anonymised judgments had not encountered problems with litigants being 'outed' through Twitter or being identified in the media. 

The attitudes of legal players towards increased transparency were overall very positive.  The Family Law Bar Association stated:

The FLBA supports the current pilot for providing anonymised judgments in family cases to improve public understanding of how, and why, the family courts make the difficult decisions that the law requires of them; it supports the provision of age-appropriate summaries of judicial decisions to children who have been the subject of decisions in family courts as soon as possible after the conclusion of their case; and the availability of full transcripts of judgments to them on reaching adulthood. It is vital that financial and human resources are invested in order to allow the scheme to be properly tested in the pilot. The Ministry of Justice has yet to evaluate the pilots. Lack of resources delayed their start, may also limit their effectiveness and any real likelihood that they will be rolled out nationally.'

They also made the politically rather interesting point that with greater transparency the public would be able to see the degree of pressure the family justice system was subject to, 'the diminishing capacity of the Courts to deal with an ever increasing volume of the most serious and complex cases in a timely fashion', the dedication and hard work of legal practitioners, experts and judges, and the adverse effects of the reduction of public funding for specialist legal services.  The point is not explicitly made, but it surely has not escaped most family law practitioners' attention that those most vociferous critics of the family justice system are rarely seen campaigning for increased funding for legal services and the courts themselves.  Yet surely this shortage of resources for the legal system is the most potent source of both injustice and the lack of transparency itself?

Sir Nicholas Wall weighed in with his support for the production of written judgments:

One of the difficulties is that we sit in private, and we sit in private at the behest of Parliament in order to protect the confidentiality of children. Of course, that is very easily translated in the minds of the press to secret justice. I am doing my best to encourage judges, whenever possible, to put heir judgments into the public domain, suitably anonymised. If you look at the website BAILII, you will find a number of High Court judgments in the public domain. There has recently been a pilot to try and do the same for the county court because it is the circuit bench who, up and down the country, are doing the bulk of this work. They are the workhorses of the family justice system. I would very much like to see many more judgments in the public domain suitably anonymised so that children are protected and the public would have a perception of what we are doing. There is a huge credibility gap and we are addressing it.'

However, the evidence of the magistrates on the production of written judgments was somewhat less evangelical.  The Magistrates Association expressed rather Eeyore-ish reservations about 'its long-term benefit, and the time taken in anonymising reasons', and the Greater London Family Panel considered that although the principle of producing anonymised judgments was right, the vehicle was 'somewhat flawed', because:

(a) the general public is unaware of the website Bailii;

(b) the reasons as they stand are mixed and varied. Some of the early publicized reasons gave so much information that anyone in the community would have been able to identify the families and others contained no information which makes their publication meaningless; and

(c) it is currently unclear with whom does the responsibility rest for the drafting the anonymised reasons. Similarly there is no indication of the cost implications of such an undertaking.

There are certainly crinkles to be ironed out: better anonymisation practices, clarity over where responsibilities for anonymisation lie, resources for the extra time taken by magistrates and judges to produce written judgments, and exploration of more accessible ways to index and publish the information.  But at the end of the day, crinkles are all these matters are, and it's disappointing to see such a lacklustre response of  the lawmakers themselves to greater public information about their work.

The demand for increased transparency in the family courts through anonymised judgments is beating like a steady drum.  It is hard to see how, with support for greater transparency 'in principle' and in the face of this evidence, the government would be able to exclude wider roll-out of the Family Courts Information Pilot.  And it seems to me that it is hard to see how this roll-out could be limited for long to only those matters concerning children, since the principles of open justice surely apply in equal measure to the Court of Protection, and perhaps some aspects of the tribunal services too.  Sooner or later, I would wager, open justice will be coming to a "secret" court near you.