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Tuesday, 13 September 2011

The Family Courts Information Pilot

Last month the Ministry of Justice published a report of a pilot project that ran last year whereby participating family courts (Cardiff and Wolverhampton County and Magistrates’ Courts and Leeds Magistates’ Court) produced – and published written judgments of certain kinds of Children Act 1989 cases. The project had three main aims:
  • to increase transparency and improve public understanding of the family justice system by publishing anonymised judgments in all serious children cases; 
  • to help parties by providing written judgments in all cases, even where a matter was not contested; 
  • to provide judgments which the children involved could access in later life. 
The Family Courts Information Pilot (FCIP) is of great interest to me, as many similar issues pertain in the Court of Protection around transparency, producing and publication of written judgments and considerations of privacy. I’m sure the family lawyers will blog on the particular issues pertaining to cases under the Children Act (I’m hoping Lucy Reed will soon!), so I’ll stick to some general comments about the project’s findings, and what the implications might be for the Court of Protection if it were to take up the scheme. I won’t rehearse in any great detail the issues around transparency/privacy, as I’ve blogged about them so many times (under the tag ‘Open Justice’), and because in any case Lord Justice Munby has put the arguments for greater transparency in the family courts far more eloquently than I could hope to do in this speech

Conclusions of the FCIP report

It was felt by many that children would benefit from having a written judgment to refer back to in later life to understand the reasons for decisions that were made about them by the courts. As someone who was the subject of family court proceedings as child, this is something I personally feel quite strongly about. This is an issue raised in Munby LJ in his speech, and he links it to developments under Article 8 about the right to information about one’s history and identity. Personally, I find this point to be an unarguable reason for the production and storage of written judgments, regardless of how one feels about whether they should then be published or not. It seems to me that similar arguments would pertain in the Court of Protection to enable P and P’s family to understand the reasoning behind decisions. P might well need a good deal of support to understand the judgment, and in some cases will never understand it, but any attempts to explain it would depend upon their being a clear account of what the court decided made available to those supporting P. I think we are a way off convincing the courts to make ‘easy read’ versions of judgments available to P, but if that idea seems astonishing or far-fetched I think we need to consider our own attitudes towards access to justice and legal recognition of P as a subject of justice in his own right.

The judiciary and court staff found the task of writing written judgments, and then anonymising them such that they could be put on Bailii, burdensome. They felt this was manageable at present – especially since the FCIP provided additional funds for transcription – but that with growing pressure on resources in the future this may be less manageable. Resources would be likely to be a serious issue in the Court of Protection – or any other court if similar projects were to be rolled out. It’s interesting to note that the judges reported that:
‘they spent more time on preparing pilot judgments due to the knowledge that they would be made public, requiring them to give a clear narrative account and avoiding any form of “shorthand’ (p15).
Perhaps family law practitioners will be able to shed more light on this, but I take this to mean that outside of the project parties involved in family court proceedings might not be provided with ‘a clear narrative account’ of the judgment that affected them? If this is the case, I find it quite shocking. Surely it is in the interests of justice – on anyone’s conception – that parties to proceedings should understand what has been decided and why? It seems rather inadequate to rely on a verbal explanation from the courts or counsel, which parties may struggle to understand or take in at a time of such heightened emotions and stress. 

The judiciary, court staff and family law practitioners expressed concerns about privacy issues: 
‘Protecting the privacy of the families was considered essential, for example, in the words of one solicitor; “the majority don’t want their business put up on a website”. Others were concerned that it was already difficult to get parents to open up in front of the court and that more scrutiny could push people away altogether. The view was expressed that there would always be those who believed that they had been unfairly treated.’ p19
However, despite these concerns of legal professionals, there is no evidence in the study that families do in fact feel this way. A major shortcoming of the FCIP is that no families responded to the invitation to give their views on how they felt about their cases being posted on Bailii. The report comments: 
'No parties had objected to their judgment being published on BAILII, although the overriding view of those we spoke with was that the parties in these types of cases did not appreciate what the website was or the implications of publishing anonymised judgments.’ P13
It’s hard to appraise this conclusion that families did not understand the implications of publishing judgments without more information really. We should, however, remember that the significance to families of the publication of written judgments is not only as parties in published cases, but also as consumers (or potential consumers) of other cases. Some families may well benefit from seeking out information about cases like theirs, to try to understand what the court’s approach may be. We should also consider that with growing numbers of litigants in person in the family courts and the Court of Protection, accessing written judgments may be vital to advancing ‘equality of arms’. How are litigants in person (or McKenzie friends) to acquaint themselves with how the court works in cases like theirs without access to judgments? They do not have the experience of lawyers to fall back on to see what factors influence courts' interpretation of the law. The only ‘voice’ of families in the study comes from Bailii’s survey or users (more on which to follow), which states: 
'[members of the public responding to the survey] were disappointed with the level of detail and lack of identifiable information. The members of the public, some of whom were involved in cases, were variable in their replies, one describing the pilot as “a hoax” designed to mislead the public, while others said how good it was to see how much care was taken in reaching decisions and that the reasons given were “cogent and helpful in understanding the outcome.”' P20
Quite likely those respondents were not a representative sample of users of the family courts, but the response does suggest that court users who understand and use the website do not share these concerns about privacy – and some found the judgments reassuring that the courts were careful in reaching their decisions. It would be interesting to know why one user described the pilot as a hoax – perhaps the judgments did not live up to their hyperbolic depiction in the press or by pressure groups – in which case all the more reason to publish them. I don’t wish to discount the concerns about privacy expressed by the courts and lawyers, but would like to highlight that the FCIP offers no evidence to support them in their view, and there is some evidence to the contrary. 

In contrast with family law practitioners, local authority lawyers thought it might be extremely helpful to have free, written judgments to refer back to. I found some of their reasoning more than a little alarming though: 
‘it would provide back up in the event of a local authority losing a file and a readily available judgment would be helpful, especially when looking at patterns of family behaviour over a long period of time, across generations.’ P19
Back up for losing a file hardly seems like a noble aspiration for greater transparency in the family courts, and I’m slightly embarrassed that anybody even suggested this!! I’m also a little nervous of using judgments from different generations to compare patterns of behaviour, as this seems to raise all kinds of issues around data privacy and prejudgment of individuals on the basis of their parent’s (or grandparents) track record. But that’s another matter for another day. 

Interestingly, “social welfare” professionals were also enthusiastic about the project: 
‘25 out of 28 were positive, finding the reasons clear and concise and one social worker said that “transparency is invaluable to society”’ p20
The importance of written judgments to help inform the practice of professionals is an issue I feel strongly about. If publication of judgments relies upon judges and law reporters identifying matters of “legal importance” it may well pass over issues that practitioners in the field would like greater clarity or nuance on. In the Court of Protection this situation is particularly acute, with practitioners crying out for more judgments around the meaning of ‘deprivation of liberty’ under the Mental Capacity Act 2005, and how best interests and mental capacity judgments should be approached. Judgments are such a rich source of information about good and poor practice; I think this factor is often overlooked by those who dismiss pleas for greater transparency. The FCIP acknowledges that publication of more written judgments would be of value for those training professionals (and the judiciary themselves! – p17, 23), but rather mean-spiritedly questions whether the Ministry of Justice should be asked to foot the bill for this benefit. 
‘One legal adviser suggested that local authorities should anonymise the reasons themselves (which they receive as a matter of course from the family proceedings courts) and use them in training as they wish.’ P17-8
This suggestion seems to have multiple drawbacks to me. In the first place, the money to do this is still coming out of the public purse, and would be a shame if departmental budgetary in-fighting poisoned the transparency agenda. In the second place, the report acknowledges that it could be beneficial to those training the judiciary as well. Furthermore, it seems completely out of touch with the realities of practice on the ground and how those materials could be disseminated. There are a multiplicity of professions and organisations who could benefit from the judgments, not just local authorities, and if anonymising and sharing is left to individual local authorities dispersal of that data will be patchy, decentralised and incomplete. Furthermore, it would actually increase privacy concerns if individual local authorities could be explicitly linked to individual cases because they have anonymised it and shared it. Publication at a national level would also ensure that cases that caused public authorities and practitioners some embarrassment also made it into the public domain; there may well be biases against publishing such cases for the practitioners involved. 

Another suggestion was that if the purpose of the pilot was to provide training materials, it had achieved that purpose and could now be ceased. Again, this seems to me to be a rather narrow minded appraisal of the potential of transparency. New issues will come up in the future, particularly I would suggest around what weight and credence is afforded different kinds of expert evidence. However much English lawyers entrenched in the common law might resist this belief, the law is a fluid thing and the meanings and values change over time. The record must be able to reflect that – especially with increasing use of overtly dynamic legal instruments like human rights. Furthermore, the record as it stands is partial – reflecting the practices of particular local authorities and judges. Some have expressed concerns about regional variations in practice between local authorities and the family courts (e.g. some have claimed that ‘emotional abuse’ is variably interpreted by local authorities, see p8 of this speech by The Guardian’s Director of Editorial Legal Services, Gill Phillips). A partial record will not help address and iron out those inconsistencies. Nor will it help identify and challenge any problems with expert evidence, or practices of local authorities. 

Predictably enough, the study found that all legal academics and analysts found the information useful for teaching and research. Given my frequent rantings on the lack of published judgments on the Court of Protection, I won’t devote any more space to making that argument. However, I would say that at an estimated £500,000 for the cost of a national roll-out of the scheme, that would be relatively cheap as research projects go... Although clearly that estimate only relates to the family courts, and the costs of rolling out a similar project to all courts would be far, far greater.

The study found that the judgments had been accessed 56,887 times on Bailii. It estimated the cost of the study as a whole to be £10,000 (including economic as well as financial costs). That’s 17.6p per download, which seems quite a bargain to me! Concerns were expressed about the navigability of the Bailii website, especially if the volume of the judgments posted on the site were to be increased. I share these concerns, but I would stress that they are hardly insurmountable obstacles to transparency. Indeed, they are an argument in favour of greater moves to opening up the use of the judgments to sites who could “add value” through the way they are organised (see this post by Judith Townend for more on ‘digital open justice’). It would have been good to hear Bailii’s response to this concern. By way of contrast, I would point to the excellent Mental Health Law Online website, which is organised in an incredibly useful way. Indeed, on their case law pages cases are indexed by jurisdiction (which Bailii does allow), but also subject-matter. They also provide a short judgment summary and – at least in my sphere of research – tend to post up more judgments than Bailii manage to. I do recognise that Bailii have a much bigger task since they cover far more jurisdictions, but how hard would it be to ask the courts to ‘tag’ their written judgments with more information about content and  type of case just as bloggers do... 

Interestingly, the study also found that media interest in both the study and the judgments was low – although a few respondents to Bailii’s survey were members of the press and one was a documentary film maker. It strikes me that if anything it is a good thing for the press to be able to have access to the court’s raw judgments, rather than relying on the account of a select few parties to the case. There is no evidence from the FCIP that the media use Bailii to ‘source’ cases and track down the individuals involved. Having said that, I wouldn’t discount that possibility for the future given the growing use the media make of public freedom of information requests to find stories. 

Possibilities for wider implementation? It seems to me that the FCIP has provided evidence for a lot of reasons to consider a national roll-out of publication of written judgments for the family courts, and little evidence to support reasons often advanced against this. The primary issues are concerns about privacy and resources. But no evidence is presented that families share those privacy concerns, which at best means more research needs to be done, and there is evidence that some of those involved in cases may benefit from using Bailii themselves. The concerns about resources are likely, I think, to be the most serious obstacle. However, if the courts are to take seriously the issues around provision of clearly reasoned written judgments to parties and children involved in the cases, then it seems to me that their publication cannot cost significantly more. Of course many courts and tribunals do not produce – much less publish – reasoned written judgments, but in those courts and tribunals where there is no public access the issues around transparency are more acute. Unlike tribunals, in the family courts and the Court of Protection in particular, the very parties the cases concern rarely attend court in person. It is astonishing that the very subject of a case might never have an opportunity hear or read the reasons for a judgment that affects them.  It strikes me as interesting that the report makes no engagement with Article 6 issues, in particular whether it is even lawful under the European Convention on Human Rights that some judgments may be neither pronounced publicly nor deposited in any publicly accessible registry (e.g. Pretto v Italy, 1983). It would be a shame, I think, if this project were left at the bottom of a drawer in the Ministry of Justice marked “too expensive”.

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