Government plans to boost confidence in family courts rely on more resources and the questionable premise that the press is interested in ordinary cases, Joanne Edwards and Mark Irving point out
The issue of transparency (or widely perceived lack thereof) in family courts is one that has long excited lively debate. Last week, the Department for Constitutional Affairs heralded a change in the operation of the family courts with the publication of its consultation paper, 'Confidence and confidentiality : improving transparency and privacy in family courts' (see 'Government plans for transparency in family courts', Solicitors Journal, 07.07.06, p899).
While various proposals have been put out for consultation, the particular themes upon which this comment focuses are a lack of resources and consequent delays in family court listings, which will become all the more apparent with increased transparency; and the burden that will be placed on the media to paint a representative picture of family proceedings if the wider public's access to family courts remains limited.
Resources and delay
On 22 May, the Minister of State for Constitutional Affairs, Harriet Harman MP, said:
'There has been concern about reports that the courts are to suffer an 8 per cent budget cut. I want to be clear [that] º there is not an 8 per cent cut across the boardº However, the courts, like all parts of the public sector, are being asked to use their resources as efficiently as possible. We have to live within our means.'
The issue of lack of resources, and consequent delays, in the family courts was one which was highlighted in the Constitutional Affairs Committee's report 'Family Justice : the operation of the family courts revisited', published on 11 June. Particular regard was given to the evidence taken before the Committee on 2 May, during which the President of the Family Division, Sir Mark Potter, spoke of 'the ever-present problem of delay in the dispatch of cases and the limited resources in terms of the judges and courts available'. The report expressed disappointment 'that the Department's continuing difficulties with resources seem to be preventing the judiciary from reducing the delays in the family court system', as well as surprise that there had been no movement in increasing the number of district judges sitting full time in the Family Proceedings Courts.
In the consultation paper itself, there is an implicit acknowledgement in the foreword that greater resources are needed : '[Public confidence] is necessary in the family courts if º the courts are to command the human and financial resources they need.' However, it is arguably a chicken and egg situation. Many pressure groups argue that the courts are institutionally biased against fathers. The consultation paper seems to work on the premise that by opening up the family courts, it will be proven that this is not so. However, the experience of those who are involved in cases in the family courts is that there is often substantial delay between issuing an application and it being determined. Depending on the nature of the case, such a delay may be determinative of the outcome. That this is so is most stark in private law children cases, where the status quo argument becomes all the more potent the longer the delay and a non-resident parent's case can be irreparably prejudiced.
Recent performance figures produced in respect of the Principal Registry show that although performance improved in the first two months of this year, by May only 21.9 per cent of public law cases were disposed of in the 40-week target and private law performance was at 64.6 per cent. It is likely to need increased resources and an improvement in these figures before there will be increased public confidence.
Media as the public's proxy
The Consultation Paper starts from the premise that 'there is a case for more openness, so that people can understand, better scrutinise decisions and have greater confidence'.
The way those objectives may best be achieved is proposed to be by allowing the media, on behalf of the public, to attend proceedings as of right, while giving judges discretion to exclude them and to impose reporting restrictions. It is argued:
'The media have a valuable role to play in improving public understanding and awareness of the work of the courts, and providing a platform for the issues which concern the public.'
However, this presupposes media interest in attending family proceedings, especially in the more 'run of the mill' case as opposed to the divorce of the celebrity couple whose wedding was splashed across the pages of last year's Hello!
The evidence from other jurisdictions whose family courts are already open to the media does not support the suggestion that the media will play the role in family proceedings which the paper presupposes. In New Zealand, for example, one judge indicates that it was predicted that the media would not attend the family courts once opened up and this has largely been the reality. Similarly, the anecdotal evidence from British Columbia is that there is little interest from the press in attending proceedings, though more so where there are celebrity cases. In England and Wales, there are some family courts to which the press already has access at the moment (eg, family proceedings courts), but the take-up is low.
Does the paper place too much onus on the media to report family cases in a measured, balanced way, setting out both sides of the argument and letting the reader draw their own conclusions? And is there too much supposition that the media will report a broad cross-section of cases, private and public law, wealthy and of more modest means, McCartney and Joe Public? Probably so.
The consultation process ends on 30 October.
Joanne Edwards, Partner, and Mark Irving, Trainee Solicitor, Manches LLP