Published: 7 January 2017
In a radical trial that is being pursued by England and Wales’ leading family judge, court hearings are set to be held in the public eye for the first time. In a bid to continue to provide more transparency, the president of the family division of the high court, Sir James Munby, has stated that certain types of hearings would be held publicly. Although correct measures are expected to remain in place to protect identities, a separate plan is being considered to grant the media access to documents that may have been kept secret in previous hearings.
In previous domestic violence cases, many victims have broken the ban on discussing their case by suggesting that the secrecy of the system means that they are open to further abuse by their ex-partners.
A member of Voice4Victims, Claire Waxman, welcomed proposed changes to the system, stating: ‘[w]e would support the increase of transparency in the family courts. We are seeing far too many victims of stalking and domestic violence being exposed to unnecessary risk and harm in these court proceedings.’
Despite support from organisations such as Voice4Victims, it is likely that Munby will face stiff opposition from legal professionals working within family law. Many legal professionals are likely to suggest that the interests of the children involved in family law cases need to be protected, particularly as they are involved with such a dispute through no fault of their own.
In 2009, the family courts opened to the media, meaning that cases such as divorce, contact with and financial provision for children, child protection and also adoption were able to be seen, however the hearings are kept largely secret. However, within these cases, many things can be controlled. The judge can limit the media attendance and can restrict access to any related documents, as well as restrictions on what can be reported and journalists can be ordered to leave the court room if the judge or magistrate decides.
In 2014, Munby encouraged judges to anonymously publish their judgements on the British and Irish Legal Information Institute (Bailii) website. However, his guidance only applied to top level judges, meaning that the judgements of most family cases that were heard by district judges and magistrates were not published. Before launching the reforms, he spoke closely with senior Australian lawyers regarding open court hearings, due to the fact that Australian courts have held open hearings for the last 30 years. In the following year of 2015, there was 225,490 cases (half of which were cases of divorce) completed in the family court, with only 469 judgements being published on Bailii.
Professor Julie Doughty, a lecturer in law at Cardiff University said the ‘judicial guidance of 2014 hasn’t ended the perception and allegations of secrecy in the family courts. I don’t think you get transparency through publishing judgments on Bailii. To get transparency you have to present it in a way people can understand and make sense of quickly. Bailii does not really help the system become more transparent at all.’
In 2014, a document called ‘Transparency: the next steps’ was issued to lawyers, whereby the ‘nervousness’ of the profession regarding increased transparency was acknowledged. It also stated that transparency would improve public understanding of the court and would help to improve the confidence that the public has in the system.
Munby is expected to announce progress on ‘a pilot of family hearings being held in public’ and ‘the release of documents to the media’, the two key reforms in the consultation document. The documents that are released to the media will include case summaries, documents issued during fact-finding hearings, expert reports and also skeleton arguments of the case.
However, responses to the consultation were almost all hostile, with the proposals being rejected by many different associations including the Association of Lawyers for Children, Resolution, the Family Law Bar Association and the Family Justice Young People’s Board, which includes young people that have had direct experiences with the family justice system.
A spokesman for the judicial communications office commented on the subject, stating that Munby is set to issue more guidance in the early stages of 2017, based on the issues raised in his consultation.
The team at K J Smith Solicitors has many years of experience in dealing with all matters relating to family law including finances and divorce, domestic violence, child residency, cohabitation disputes and family mediation. For more information or to discuss your circumstances with a member of our team, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000 (Basingstoke) 01483 370100 (Guildford) or 01494 629000 (Beaconsfield).