Father challenges the family courts to uphold their pledge to transparency

A father from Norwich has urged judges to publish their rulings on his decade-long child contact dispute. His call for his court battle to be made public is bolstered by Cardiff University’s recent survey showing that very few judges adhere to the courts’ principle to publish judgments.

The litigation began shortly after the man’s daughter was born, and is still ongoing as her tenth birthday approaches. Over this time, the father has spent over £500,000 on legal fees on a case which, with dozens of hearings separated between the North East and East Anglia, has seen ten barristers (including two QCs), six courts and multiple judges.

The father is campaigning to spend more time with his daughter, who currently lives with the mother, and claims that she wants to spend more time with him too. Frustrated that judges have not listened to the daughter’s opinion on the matter, the father is also asking for Sir James Munby, the President of the Family Division, to read his case file:

“I’d like Sir James to see if he thinks the process has been fair and transparent, I don’t think justice has been done to me. More importantly I don’t think justice has been done to my daughter. I would like rulings to be published, anonymously, from my case.”

This story throws up wider questions about public knowledge of the functioning of the family courts. In January 2014, Sir James Munby himself published the guidance ‘Transparency in the Family Courts’ after lengthy debate about public access to information:

‘There is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name.’

It was decided that, if the judgment is of public interest, judges should publish their rulings regardless of whether a third party has requested it. Munby J noted that the publication remains up to the judge’s discretion and care must be taken to correctly anonymise certain judgments.

Following Sir James Munby’s guidance, Cardiff University conducted a survey ‘to evaluate the impact of this increased expectation and rate of publication’. Spanning 2014-2016, the survey revealed that, out of 800 rulings, only 27 judges and 12 courts sent more than 10 cases to the British and Irish Legal Information Institute (Bailii). The judges cited lack of time and resources for the reason for this inconsistency and specified that rushing an anonymised judgment is too risky in case a child or vulnerable person is identified. In March 2017, Cardiff University concluded that the public has only a “patchy understanding” of the family justice system in England and Wales owing to the fact that the majority of judges do not adhere to Munby J’s guidance.

This April, Vardags attended the talk ‘Reporting the Family Courts- Are we Doing it Justice?’ organised by The Transparency Project. Chaired by Jo Delahunty QC, the panel, including The Honourable Mr Justice Peter Jackson, debated the expectations, limitations and risks surrounding access to knowledge of the family system. What emerged was that, just as Cardiff University’s survey suggested, judges are reluctant to expose the private and sensitive nature of the matters played out in the family courts to the public eye. Jackson J stressed that the courts and the media need to collaborate in a more productive way so that significant case law does not get overlooked.

Ultimately, it is clear that not only is there a certain distrust between the family courts and the media, but also that this tension leads the public to distrust the courts. The father in this case is adamant that publishing the judgments will be in the public’s benefit as he is sure that a multitude of men are struggling with the same situation. Dispelling the ‘secrecy’ surrounding the family courts would indeed give the public a better understanding of the system and offer applicants like the father some points of comparison. However, the Cardiff University survey and The Transparency Project talk also demonstrate that there is an important balance to be struck between public benefit and individual welfare. The public have a right to know how our justice system operates, but this information must not be obtained at the expense of the vulnerable.