Family court transparency plans fall short as judges struggle to find time to publish judgments safely

By Nuffield Foundation

New research from Cardiff University’s School of Law and Politics and funded by the Nuffield Foundation suggests that guidance given to judges to routinely publish their judgments is not being consistently followed.

This leaves the public with a patchy understanding of the family justice system in England and Wales.

Issued in 2014, the guidance was intended to address perceptions, especially in the media, of ‘secrecy’ and ‘justice behind closed doors’ when important decisions are made about children in family courts. These claims arise from the way that court rules ensure most family cases are held in private, to protect children and other vulnerable parties, and are subject to reporting restrictions preventing such parties being identified.

The guidance requires judges to send fully anonymised versions of their judgments in certain types of case to BAILII, a freely accessible legal research website. The intention was to enable both the press and the public to have a better understanding of the family justice system, by making it more transparent.

However, following concerns expressed about poor anonymisation and some risks of jigsaw identification, and also observations that relatively few cases seemed to be appearing on BAILII, an evaluation of the effects of the guidance was undertaken by Cardiff University’s School of Law and Politics, funded by the Nuffield Foundation.

Analysing 837 judgments that were published in the first two years following the guidance, the research found that only 27 judges and 12 courts sent in more than ten cases each to BAILII during this period, revealing significant local variations in following the guidance. As a result, the media and the public are able to read more about judicial and social work decision making in certain parts of England and Wales than others.

Dr Julie Doughty, Cardiff University’s School of Law and Politics, who led the research said:

“The judgments now published provide more information about the role of the family courts than was available prior to the guidance, but there are inconsistencies in the way courts have responded which can present a confusing and not necessarily representative picture of the system as a whole.”

The research team also gathered views from some judges, journalists, organisations and representative groups with an interest in family justice, about the operation of the guidance and the effect it has had on them and on public understanding of family courts.

Dr Doughty added: “The overwhelming message we received in this study was that judges’ workloads, and lack of administrative support, did not allow them the time they needed to write clear, useful and safely anonymised judgments for publication that they could feel confident had minimised any risk of identifying the children and families involved.”

The publication of this report is timely, in the context of a senior family court judge recently emphasising the importance of public legal education and making family court processes more transparent, thereby reducing complexity and time spent on cases at later stages, as well as improving access to justice.

NOTES

1. The judicial guidance on transparency issued by Sir James Munby, President of the Family Division, in January 2014 is posted on the Judiciary website at: https://www.judiciary.gov.uk/publications/transparency-in-the-family-courts/

2. The British and Irish Legal Information Institute (BAILII) provides access to the most comprehensive set of British and Irish primary legal materials that are available for free and in one place on the internet. BAILII is legally constituted in the UK as a company limited by guarantee (No 4131252) and as a charitable trust (registered charity no 1084803) and has been supported by a number of major sponsors and is assisted by many other organisations and individuals. BAILII is hosted in the UK and Ireland by the Institute of Advanced Legal Studies, London and the Law Faculty, University College Cork. http://www.bailii.org/

3. On 9 March 2017, Sir Andrew McFarlane, Lord Justice of Appeal, delivered the inaugural Bridget Lindley OBE Memorial Lecture in London: ‘Holding the risk: The balance between child protection and the right to family life’. One of the topics he covered was transparency in family justice. The lecture can be downloaded from the Judiciary website here.

Related


By Nuffield Foundation

Explore our projects

A front view of a father and his two children. He is carrying his young son in his arms and his daughter is riding her scooter along the footpath as he pushes his son's scooter along the way.
New

Justice | Welfare | 2024 - 2026

Challenging justice inequalities with children in conflict with the law 

View project
A young child splashing in a puddle next to his guardian and sister.
New

Justice | 2024 - 2026

Special guardianship families: experiences and support needs

View project
New

Justice | 2024 - 2026

Breaking networks of youth serious violence

View project
New

Justice | 2024 - 2024

Crossing Boundaries: Co-designing support for vulnerable young people

View project
Man getting professional advice

Justice | 2023 - 2025

Applicants’ experience of the Criminal Cases Review Commission (CCRC)

View project
Little boy at home looking pensive, playing a game on a smartphone

Justice | 2023 - 2025

Linking household benefits, financial precarity and child welfare

View project
Man holds girl's hand as he walks her to primary school

Justice | 2023 - 2025

Improving safeguarding outcomes after adoption or special guardianship

View project
Mother and small child on a bus looking out of the window together and playing a game naming the things they see

Justice | 2023 - 2026

Parental Advocacy in England: a realist evaluation of implementation

View project
Portrait of a teenager in front of a blue shed, looking at the camera

Justice | 2023 - 2025

Children in police custody: piloting a ‘Child First’ approach 

View project
Father and child washing up in the kitchen

Justice | 2023 - 2025

Physical punishment and child outcomes in the UK

View project

Justice | 2023 - 2025

Access to justice through artificial intelligence

View project
Man turns towards the camera, walking in a town, with other walkers in the background

Justice | 2023 - 2023

Creating and using better justice data

View project
A young child splashing in a puddle next to his guardian and sister.
New

Justice | 2024 - 2026

Special guardianship families: experiences and support needs

View project
A front view of a father and his two children. He is carrying his young son in his arms and his daughter is riding her scooter along the footpath as he pushes his son's scooter along the way.
New

Justice | Welfare | 2024 - 2026

Challenging justice inequalities with children in conflict with the law 

View project
New

Justice | 2024 - 2024

Crossing Boundaries: Co-designing support for vulnerable young people

View project
New

Justice | 2024 - 2026

Breaking networks of youth serious violence

View project
Man getting professional advice

Justice | 2023 - 2025

Applicants’ experience of the Criminal Cases Review Commission (CCRC)

View project
Portrait of a teenager in front of a blue shed, looking at the camera

Justice | 2023 - 2025

Children in police custody: piloting a ‘Child First’ approach 

View project
Man holds girl's hand as he walks her to primary school

Justice | 2023 - 2025

Improving safeguarding outcomes after adoption or special guardianship

View project
Mother and small child on a bus looking out of the window together and playing a game naming the things they see

Justice | 2023 - 2026

Parental Advocacy in England: a realist evaluation of implementation

View project
Little boy at home looking pensive, playing a game on a smartphone

Justice | 2023 - 2025

Linking household benefits, financial precarity and child welfare

View project

Justice | 2023 - 2025

Access to justice through artificial intelligence

View project
Reported

Justice | 2019 - 2023

Born into care: best practice guidelines

View project
Man leading a focus group listening to the participants speaking

Justice | 2023 - 2026

Lived experience of the law: a research and policy project

View project
Group of teenage boys at school in uniform
In progress

Justice | 2022 - 2025

Exploring racial disparity in diversion from the youth justice system

View project
Dad holding baby walking with two kids
In progress

Justice | 2022 - 2024

Administrative fairness in the digital welfare state

View project
In progress

Justice | 2022 - 2024

Transparency and judicial review: a study of the duty of candour

View project
Worried woman alone in a room, resting her head on her arms
In progress

Welfare | 2022 - 2024

Links between cognitive impairment and exploitation in England

View project
A teenage boy outdoors
In progress

Justice | 2022 - 2024

Child First: examining children’s collaboration in the Youth Justice System

View project
Young men looking puzzled as they look to another man for advice
In progress

Justice | 2022 - 2024

The role of communities and connections in social welfare legal advice

View project
Two children walk ahead of two adults, one pushing a pram
In progress

Justice | 2022 - 2024

Voluntary care plans for children in Scotland: using Section 25 orders

View project
Rethinking domestic abuse in child protection: responding differently
In progress

Justice | 2022 - 2024

Rethinking domestic abuse in child protection: responding differently

View project
An older couple using a tablet to make a video call: Understanding local legal needs and supporting early intervention
In progress

Justice | 2022 - 2024

Understanding local legal needs and supporting early intervention

View project
A woman helping a little girl get ready for school
In progress

Justice | Welfare | 2022 - 2024

Race, religion and representation among care-experienced children

View project
A parent or carer holds a small child
In progress

Justice | 2020 - 2023

Discharge of care orders: a national study

View project
A little girl smiles at her father
In progress

Justice | 2021 - 2024

Substituted parenting: what does this mean in the family court?

View project
A young child splashing in a puddle next to his guardian and sister.
New

Justice | 2024 - 2026

Special guardianship families: experiences and support needs

View project
New

Justice | 2024 - 2024

Crossing Boundaries: Co-designing support for vulnerable young people

View project
New

Justice | 2024 - 2026

Breaking networks of youth serious violence

View project
Reported

Justice | 2019 - 2023

Born into care: best practice guidelines

View project
Reported

Justice | 2021 - 2023

Delivering administrative justice after the pandemic

View project
Siblings play ball in a playground - Siblings Contact and the Law
Reported

Justice | 2020 - 2021

Guidance to judges on the anonymisation of children judgements

View project
Lawyer taking witness statement from male witness
Reported

Justice | 2019 - 2021

The production of witness statements by lawyers and litigants in person

View project
Reported

Justice | 2020 - 2022

When is a wedding not a marriage? Exploring non-legally binding ceremonies

View project
Reported

Justice | 2019 - 2022

The Edinburgh Study: causes and impacts of criminal justice pathways

View project
Reported

Justice | Welfare | 2015 - 2018

Bridging the Evidence Gap in Family Proceedings

View project
Reported

Justice | 2016 - 2018

The impact of Litigants in Person on the Northern Ireland court system

View project
Reported

Justice | 2016 - 2017

Transparency and privacy in family courts

View project
Reported

Justice | 2016 - 2019

Implementation of recommendations of the Carlile report

View project
Reported

Justice | 2017 - 2020

Enhancing problem-solving practice in youth court

View project
Reported

Justice | 2013 - 2019

Timely disclosures mean timely interventions for young offenders and victims

View project
Search projects

We improve people’s lives by funding research that informs social policy, primarily in Education, Welfare and Justice. We also fund student programmes that give young people skills and confidence in science and research.

We offer our grant-holders the freedom to frame questions and enable new thinking. Our research must stand up to rigorous academic scrutiny, but we understand that to be successful in effecting change, it also needs to be relevant to people’s experience.

Profile