One step closer to Open Justice

It's a while since we've had an Open Justice post...  but we knew it couldn't be long with Munby LJ being appointed the new President of the Family Division and the Court of Protection.  As readers will know, there are various issues around transparency in the Court of Protection as a result of s12 Administration of Justice Act 1960, which renders is a contempt of court to publish information about proceedings held in private.  Under the Court of Protection Rules 2007, the judge can choose to hear a case in public, or authorise publication of information about proceedings held in private, which they have done on various occasions.  However, this is contingent upon somebody (typically the media) making an application for them to do so, or a judge exercising his or her discretion to authorise publication of the judgment on BAILII or MHLO (or Family Law Week - who knows where they'll pop up next! I wonder whether there is any rhyme or reason for where these judgments end up?).  So, the judgments that end up in the public domain are not necessarily representative of the typical work of the Court of Protection, and (as I've written about before) you can even end up with the indefensible situation of lawyers being able to cite cases in court which aren't even in the public domain...

Anyway, readers who've read Munby LJ's own' commentaries on transparency (like this one) in the Family Division and the Court of Protection were probably anticipating changes.  Upon appointment he stated:

I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well underway. I hope to be in a position to make important announcements in the near future.

And here it is (H/T to Julie Doughty for spotting this).  Munby LJ has published draft guidance on transparency, and in a connected document Munby LJ gives details of how you can submit your views (I haven't posted the email address as I don't want to send a load of spam their way).  There is an interesting exposition of the law on transparency and publication (and differences between the Family Division and the Court of Protection), as well as some interesting comments on when lifting anonymity would be appropriate.  But of particular significance is this passage on the publication of judgments:

16 In cases brought by local authorities under Part 4 of the Children Act 1989 or under the Adoption and Children Act 2002 and cases involving the personal welfare jurisdiction of either the High Court or the Court of Protection, where the judgment relates to the making or refusal of:
(i) any emergency protection order, contested interim supervision order, contested interim care order, supervision order, care order, placement order or adoption order or any order for the discharge of any such order;
(ii) any order authorising a change of the placement of an adult from one with a family member to a home;
(iii) any order arguably involving a deprivation of liberty;
(iv) any order involving the giving or withholding of significant medical treatment; or
(v) any order involving a restraint on publication of information relating to the proceedings,
the starting point from now on is that the judgment should be published unless there are compelling reasons why it should not.

Very interesting. I've moaned several times about the lack of published judgments on the DOLS (amongst other MCA cases).  This is a step change of approach.  It will also be extremely useful from the perspective of being able to count the number of DOLS cases actually ending up in court, as we've had no figures since these, in 2011 (although, it may not if they don't publish cases that don't end up in a hearing on the substantive issues as it's settled by the consent of his litigation friend).  It will be interesting to see what response this proposal gets.  I'm aware that whilst there are many people (like myself) who feel this is a very important first step towards greater transparency in the Court, it will also impose an additional resource burden on the judges and lawyers working within an already very overburdened system.  What price open justice?  In any case, it looks as if BAILII and Jonathan over at MHLO may have their work cut out for them shortly...

This paragraph about identification of public authorities and expert witnesses may also be of interest:

21 In all cases where a judge authorises publication of a judgment:
(i) public authorities and expert witnesses should be named in the judgment as published, unless there are compelling reasons not to;
(ii) anonymity in the judgment as published should not extend beyond protecting the privacy of the families involved, unless there are good reasons to do so.

I know that identification of public authorities and experts is very controversial territory, as people are concerned that the supply of expert witnesses might dry up if they were identified in controversial cases, or because it might have a chilling effect on bringing cases to court.  I am not sure how much evidence testifies to either of these claims.  However, I'm also aware that one of the (many) missing pieces of the jigsaw about how the MCA and the DOLS is how evenly cases are distributed across public authorities.  I know when I did a survey of local authorities back in December 2011, a third of all DOLS applications that had ended up in court were from one local authority which took helping P to exercise his rights of appeal under Article 5(4) very seriously.  We have no more recent data, but anecdotally, some public authorities are much more aware than others of the need to take disputes and DOLS cases where P is objecting to his detention to court, and publishing all DOLS cases and the names of the public authorities would be one way of helping to keep track of this.