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Lord Justice Munby calls for further opening up of the family courts

ALC Hershman-Levy Memorial Lecture analyses reform of public and press access to family proceedings

Lord Justice Munby delivered last week's Hershman-Levy Memorial Lecture on 'Lost Opportunities: Law and Transparency in the Family Courts', hosted by the Association of Lawyers for Children.

The full transcript of the lecture is available on the ALC website. Lord Justice Munby analysed what is wrong with the current law with regard to access to the courts and what remains wrong with it despite the recent changes.

After reviewing the current law, he concluded:

"[B]oth principle and pragmatism demand that we open the family courts, that we drastically relax the present access restrictions.

"But affording access to the family courts is not alone enough. The answer, if I may be permitted to adopt the former Lord Chancellor's language, is that we need both more people going into the family courts and more information coming out. Each of these is essential; neither alone is sufficient."

Munby LJ called for more judgments to be made available to the public:

"I am not talking merely about judgments which are thought to be reportable because of their perceived legal interest. Releasing for publication only those judgments which are 'reportable' means that the public obtains a seriously skewed impression of the system. What one might call 'routine' judgments in 'ordinary' care cases and private law cases should surely also be published – all of them, unless, in the particular case, there is good reason not to. The second point leads on from the first. It is not only High Court judgments that should be published in this way. Why should not County Court judgments also be published?

The second step must surely be to revisit section 12 of the [Administration of Justice Act 1960]. Publication of judgments is, I believe, necessary but of itself it will not necessarily suffice. After all, a judgment contains what a judge has decided to include in it, and someone may wish to argue in a public arena, relying for this purpose upon matters not recorded in the judgment, that, for example, the expert evidence was flawed, that the judge misunderstood the evidence, or that if the judge had had access to other information the outcome might have been different. Section 12 – which, to repeat, fails to protect the anonymity which most would endorse – is in other respects surely far too restrictive. Is it not time to make a fresh start? Perhaps to abandon section 12 altogether and start again? If that approach is thought to be too radical, would it not be preferable to re-cast section 12 so that it defined a much more limited and focussed list of materials that could not be disseminated without the prior permission of the court?"

He described pilot schemes that were underway in respect of the provision of written judgments when a final order is made in certain family cases.

Lord Justice Munby explained his misgivings concerning Part 2 of the Children, Schools and Families Act 2010. In respect of the legislation and other recent and proposed reforms, he posed the question:

"Do the reforms which have taken place meet the criteria I have set out? Do they even meet the criteria identified by their architect? My answer to each question can only be a saddened and regretful No!"