The Kingsley Napley Junior Peer to Peer Debate 2022: Opening closed doors

9 May 2022

The motion: This House believes that increased transparency in the family court is the only way to improve public confidence and the quality of decision-making in the family justice system.

Family proceedings are generally conducted in private due to the personal and intimate nature of those proceedings.  There have been increasing concerns that the lack of transparency regarding family proceedings reduces accountability and confidence in the court system.  Despite repeated pushes towards more openness over the last two decades, the reality is that very little has changed. 

The issue is now firmly back on the agenda after the President of the Family Division, Sir Andrew MacFarlane, issued his report entitled “Confidence and Confidentiality: Transparency in the Family Courts” which makes substantial proposals for reform.  There has also been increased public interest after Louise’s Tickle’s (somewhat controversial) Channel 4 Dispatches documentary “Torn Apart – Family Courts Uncovered” was released last year.

In our first annual debate with the junior bar on 28 April 2022, KN’s Associates and Senior Associates were pleased to welcome friends and contacts from across the profession to our new offices to discuss whether increased transparency is the only way that we can ensure an effective family justice system.

The debate was chaired by Charlotte Trace of 29 Bedford Row and the barristers joining us on the panel were:

  • Alexandra Wilson of 4PB
  • Ben Wooldridge of 1 Hare Court
  • Fitzrene Headley of QEB
  • Mehvish Chaudhry of Harcourt Chambers

Each barrister was asked to debate either for or against the motion so their comments did not necessarily reflect their personal views.

Our poll before the event suggested that the debate would be a close call, with 44% for and 56% against the motion.

Kicking things off in favour of the motion, our first speaker argued that the public has an interest in seeing that the family court is doing its job properly and that justice is taking place, which they can only do if they understand why decisions have been made.  Quoting Jeremy Bentham, they said that “publicity is the very soul of justice”.  Under the current system, the public is generally unaware of what goes on in the family court and clients, fuelled by anecdotes from friends of friends, often have completely unrealistic expectations of what will happen in their case. 

Whilst the panellists agreed that there is a need for the public to have a better understanding of how the family court works, those against the motion questioned whether transparency will actually achieve this aim.  Will the public actually read judgments if more are reported? Are the press going to report on cases unless they include high profile individuals or salacious details likely to trigger public interest? 

In support of the motion, it was also suggested that the greater reporting of judgments will result in consistency of decision-making across the judiciary, enabling family lawyers to provide their clients with more certainty about how their case is likely to be decided.  This should reduce the number of litigants in the court system by empowering more individuals to reach a negotiated settlement and making some litigants pause for thought before issuing an application, being aware of the consequences of such action. 

Against the motion, it was argued that there is an important distinction between privacy and secrecy.  The fact that proceedings are conducted in private due to their sensitive nature does not mean that the courts are operating a system of secret justice.  The right of a child to privacy should be paramount and the views of children are clear: they do not want details of their lives to be in the public domain.  One of our panellists highlighted Cafcass’ concerns, raised in response to the President’s Transparency Review, about the potential harm caused to children by learning about their background through media reporting or by personal details of their lives being subject to scrutiny in their local community. 

One view advanced in favour of increased transparency was that the ability to anonymise judgments is sufficient to protect privacy as individuals cannot be directly identified.  Furthermore, if there is clear justification why a judgment should not be published because of the individuals and/or the issues involved, reporting restrictions can be put in place, but this should be the exception rather than the norm.  However, for the other side, it was argued that anonymisation of judgments just doesn’t work as it is often possible to identify individuals, and their children, through jigsaw identification.  It was also argued that the redaction of key details can often render judgments as meaningless because important information which was relevant to the decision-making is not available, thus meaning that transparency is not achieved in practice.

Concerns were raised that the likely result of increased transparency is the creation of a two tier system (as addressed in our 2021 Debate: “Two tier, or not two tier …”) in which those who can afford it choose to resolve their disputes via ADR options.  It was argued that this will result in a reduction to transparency as reported judgments will only reflect the outcomes in cases for those who cannot afford “private justice”.  The risk of publicity will also become a negotiating tool.  Should the rich be able to buy privacy whilst those unable to afford this luxury have their lives laid bare?

The debate was not without audience participation, and during the Q&A that followed, a member of our audience flagged concerns about the practicality of the proposals for increasing transparency.  As many judges do not have time to provide written judgments, detailed notes or transcripts would be required.  Who will pay for a transcript and ensure that this is an accurate representation of the hearing?  Who should be responsible for redacting judgments before they are released into the public domain?  How can we ensure that anonymisation and redaction are applied consistently?

Concerns were also expressed that the current situation where judges are taking different approaches to transparency and reporting judgments is resulting in a very skewed view of what is actually going on in the family court. 

Our final poll showed that only 26% of our audience remained in favour of the motion, with 74% not agreeing that transparency was the only way forward.  The emphasis here was definitely on the word ‘only’ in the motion and, whilst the majority of the audience accepted that there were benefits of increasing transparency, most felt that there were other, and better, ways to improve public confidence and the quality of decision-making.  Alternative suggestions discussed were:

  • Great collaboration between the legal profession and the media, such as providing training to journalists, could help to ensure responsible and accurate reporting.
  • A proportion of judgments by each judge could be externally reviewed to monitor standards. 
  • An increase in the availability of Legal Aid could reduce the number of individuals acting as litigants in person and lawyers could advise if decisions should be appealed.

However, the vast majority of alternative options can only be achieved through proper funding of our legal system which remains low on the Government’s agenda.  In the absence of increased funding, is greater transparency, despite its potential downsides, a necessary evil that we must all learn to live with?

FURTHER INFORMATION

Should you have any questions about the issues covered in this blog, please contact Hannah Butcher or a member of our Family Law team.

 

ABOUT THE AUTHORS

Hannah Butcher is an Associate in the Family Team and joined the firm in January 2022. She has experience in dealing with all aspects of family law issues arising on the breakdown of relationships.

 

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