Transparency in the family courts: unanswered questions

Following Sir James Munby's recent proposals to open up the family courts to the public, Sarah French looks at the practicality and implications of the proposals

In his latest consultation paper, the President of the Family Division, Sir James Munby, set out further plans to open up the family courts to the media.

He justifies such steps on the basis of improving the public's understanding of the court process, and feels that the public has a legitimate interest in being able to read what the judges are doing. He is seeking the industry's views on the practicality of adding a catchphrase, or a few catch words after each case number on the court list to help identify what the case is about.

Normally the parties' names are included as well as the specific court case number that is allocated to every matter. If it is a case involving children, only the matter number is listed and the names of the parties are excluded. It is difficult to consider what kind of descriptor could be used to help a member of the media identify whether it is a case he or she wishes to sit in on. The word 'matrimonial' for example, will not give sufficient information to reveal whether this is something about which the press may consider to be of public interest. In addition, the words 'children dispute' again would be insufficient to decipher whether the case is newsworthy. It remains to be seen whether any professional responding is able to suggest a form of wording which would encapsulate the president's idea.

He refers in his recent consultation paper to assisting the media's watchdog role. However it will be difficult to strike a balance between judging what cases are in the public interest and which have a high news value. In over eight years of being a qualified family law solicitor, I have noticed how the media will only give prominence to a select number of cases, which may not be the most important from a legal point of view; celebrity or shock value cases which concern children seem to gain the most coverage. Given this trend and the apparent difficulty of labelling judgements with an apt descriptor, it is hard to say whether Munby's reforms will be able to enhance the media's watchdog role.

Another area the president highlighted for consideration is whether or not to make some experts' reports, or extracts of reports, available to the media. He said: "It will not be every expert's report that will be released but only those identified by the judge, having heard submissions."

It is now much more difficult to obtain an expert due to the recent changes to the family procedure rules; experts must now be absolutely necessary, as opposed to reasonably required. Given the near-abolition of legal aid for private cases by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, funding for experts is very hard to come by. The president seems to be suggesting that further court time and parties' precious resources be used for submissions to the judge about what parts of an expert's report should be disclosed. It is difficult to see how parties are going to be able to fund their legal representatives' fees for preparing and presenting such submissions in our age of austerity.

Munby is also seeking preliminary views about hearing certain types of family cases in public. He is seeking views as to what type of family case might initially be appropriate for hearing in public and what restrictions and safeguards would be appropriate. It is always a source of comfort to my clients to know that their cases generally cannot be known about by anyone other than their former spouse or partner, the legal representatives and the Judge. Family cases often have sensitive dimensions, not least where there are children concerned. Even with the anonymity of children's names, a newspaper report in a local area could potentially lead to the discovery of the child or children concerned, as it may not be too difficult to work out to which family the case refers.

It remains to be seen what further steps the president will take further steps to open up the courts, or whether representatives from the media will wish to attend or read published judgments, any more than they did before. Regardless, finding a workable balance between allowing the media to act as a watchdog and protecting vulnerable cases from the public glare will be mightily tough.

Sarah French is a solicitor at Blake Morgan

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