Greater transparency in the family courts - New Draft Guidance

Proposed new guidance recommends that decisions of the family courts should always be published, unless there are compelling reasons against publication.

Sir James Munby, President of the Family Division of the High Court, has issued the proposed judiciary guidance to facilitate the "need for greater transparency" in the family courts.

At present, it is a contempt of court to publish a judgment in a family court case involving children or a judgment in a Court of Protection case unless the judgment has been delivered in public or the judge has authorised publication. The Draft Practice Guidance, which has been issued for consultation and comment, creates a presumption that all judgments should be published, unless there are compelling reasons for keeping them private. The Draft Guidance states that the presumption of publication applies to a wide range of family court and Court of Protection cases including those brought by local authorities and cases relating to the making or refusal of emergency protection orders, supervision orders and orders involving a deprivation of liberty.

In all other cases not specifically referred to in the Draft Guidance, Sir James recommends that there should be a presumption that a judgment may be published whenever (i) a party or member of the media applies for an order permitting publication and (ii) the judge concludes that the judgment may be published taking account of rights arising under any relevant provision of the ECHR. The Draft Guidance goes on to state that "a judgment should in any event be published whenever the court considers that publication is in the public interest whether or not a request is made by the party or the media".

The Draft Guidance recommends that the extent of anonymisation in published judgments and the degree to which reporting should be permitted must be considered by a judge on a case by case basis. Before making a decision, a judge should invite representations from the parties and the media.

The Draft Guidance also states that restrictions on reporting and publication should be limited: public authorities and expert witnesses should be named unless there are compelling reasons not to do so and anonymity should not extend beyond protecting the privacy of the families involved unless there are good reasons not to do so.

Sir James states that he proposes to adopt an incremental approach: further guidance will follow the Draft Guidance and eventually more formal Practice Directions and changes to the Court of Procedure Rules 2007 and the Family Procedure Rules 2010 will be issued. However, changes to primary legislation are unlikely in the near future.

The Draft Guidance will be welcomed by media campaigners who have pressed for greater transparency in the Family Court and the Court of Protection, which have been criticised for creating "a system of secret and unaccountable justice". But it is unlikely that parties to family proceedings will be identified in most cases. While anonymity will be determined on a case by case basis, the article 8 rights of families will usually be considered more important than the public interest in identifying them (unless they wish to be identified). The Draft Guidance can be accessed here.