Two recent speeches by very senior members of the judiciary have drawn attention to the challenges facing the family courts, and in particular the pros and cons of greater transparency, as Paul Magrath of ICLR, who has co-authored a book on the subject, explains.
Giving the keynote address at the inaugural Bloomsbury Professional Family Law Conference held in Gray’s Inn on 16 May 2018, Sir Andrew McFarlane drew attention to a number of issues which he will have to deal with when he takes over as President of the Family Division later this year.
The first major challenge, and one of which he thought family lawyers might only be peripherally aware, was the ambitious courts and tribunals reform programme (known as HMCTS Reform) which, over the next few years, would transform the way litigation is conducted. While some courts would be modernised, others would be sold off and staff numbers cut to free up money to pay for the reform programme. The changes fell into three broad categories.
First, the introduction of online processes. An example was the recently launched online divorce application process, following a successful pilot which was found to have eradicated 95% of the mistakes which are usually made in paper applications. In time both private and public law children cases and financial remedy cases would be initiated and managed online.
Second, the use of paperless filing and case management. A number of systems were being analysed for this purpose, but it had already been successfully introduced for criminal cases using something called the Common Platform.
Third, the use of virtual or video hearings. Though these had been piloted in some civil cases, this was something that would need very careful evaluation and thought before being used for family cases. Unlike civil claims, which were generally focused on what had already happened in the past, family law cases tended to look forward to what should happen in the future. There was a need to engage directly with the parties, which required them all being in the same room at the same time. So caution was needed.
Consideration of virtual and online hearings prompted another major concern, namely transparency. Though subject to exceptions, open justice was the norm in our courts. How was the public to observe an online hearing? How were the media to report it? Sir Andrew did not think the idea which had been proposed, of special listening booths in court buildings, was likely to catch on.
In a more general sense, transparency remained a pressing challenge in the family courts. The outgoing President of the Family Division, Sir James Munby, had stated that he would issue updated guidance on the matter before his retirement in July. Many judgments were already available via BAILII (the British and Irish Legal Information Institute – www.bailii.org ). But although the original documents had never been more accessible, there remained a lot of misinformation and lack of understanding. A particular challenge was the impact of social media.
Two recent developments were to be welcomed. The first was the publication of Transparency in the Family Courts, by Julie Doughty, Lucy Reed and Paul Magrath, to which Sir Andrew had contributed a foreword. As he had explained there, the understanding of what transparency required had developed over the years:
“Thanks to the ground-breaking and inspired work of the Transparency Project, and now this book, transparency is to be seen as a much more subtle, sophisticated and flexible concept. There is much that can be achieved to ‘open up’ the Family Court in terms of describing and explaining its workings and decisions which falls short of allowing unrestricted access to all and sundry.”
Secondly, he welcomed the inaugural Sir Nicholas Wall Memorial Lecture given by Baroness Hale, President of the Supreme Court, on 10 May 2018, on Openness and Privacy in Family Proceedings. That had very usefully laid out the key elements in the debate, while also drawing attention to the General Data Protection Regulation (GDPR) as an important new development.
Sir Andrew went on to deal with some of the other issues facing the family courts and family lawyers: the loss of legal aid funding, low morale, the effect of Brexit, and the Care Crisis Review.
Lady Hale’s speech
Also given in Gray’s Inn, Lady Hale’s speech highlighted, among other things, how “frightening” transparency and the “full glare of publicity” could be, for family lawyers more accustomed to private hearings. She cited the recent cases of Charlie Gard and Alfie Evans, in which any attempt at anonymity had proved futile, since “the genie was well and truly out of the bottle”.
But one advantage of having left the Family Division was that Lady Hale could see transparency in the context of other types of case, which raised similar issues of privacy and publicity. As she explained:
“We strive for coherence and principle across the whole legal field. So we have to ask, first, what the general principles are, and second, whether the family justice system is different from any other part of the legal system, and if so why and how.”
She, too, drew attention to the work of the Transparency Project, in assessing the publication of judgments under the guidance issued by Sir James Munby in 2014, as well as to that of Dr Julia Brophy in researching the impact on children of such publication, and the adequacy of anonymisation in preventing jigsaw identification.
Looking at the problem in the round, she said “The law and practice need to be simple, clear, coherent and accessible, and they are not”. There were several interests that need balancing and they needed to be clarified: open justice, freedom of expression, privacy of information, family life and the interests of any children involved. She ended up with the observation that “Our children are our future and, as Nicholas was always the first to say, we need to treat them right.”
Sir Nicholas Wall, in whose memory Lady Hale’s speech was given, did much to promote transparency while serving as President of the Family Division, and his successor, Sir James Munby has taken up that mantle. Though he has been occupied with many other developments, he has often talked about updating his transparency guidance of 2014. That now seems in prospect, as he completes all the outstanding tasks he has set himself before retiring.
Yet it is also clear from their recent speeches, that both Sir James’s successor as President, Sir Andrew McFarlane, and the President of the Supreme Court, Lady Hale, have strong views on the subject of transparency and are keen to take its development forward.
So, as well as providing a useful tool for practitioners and the media, the book which I have written in conjunction with family barrister Lucy Reed and law lecturer Julie Doughty, Transparency in the Family Courts: Publicity and Privacy in Practice (Bloomsbury Professional, £65) turns out to have been particularly topical, as the family law world faces the challenges ahead.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project.