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President issues guidance to improve transparency in the courts

Separate guidance for family courts and Court of Protection

New guidance issued by Sir James Munby, President of the Family Division, marks an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.

The President says:

"In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form)."

The President indicates that the guidance is the first of several incremental steps towards greater transparency.

Family courts
The guidance applies to the High Court and county courts.

The guidance distinguishes between two classes of judgment: those that the judge must ordinarily allow to be published; and those that may be published.

In the first category are all those judgments where the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media. It also includes judgments in a range of specified proceedings (unless there are compelling reasons why the judgment should not be published): for example, a substantial contested fact-finding hearing at which serious allegations, for example allegations of significant physical, emotional or sexual harm, have been determined; the making or refusal of a final care order; and the making and refusal of a placement order or adoption order.

In all other cases, the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given.

Responsibility for the anonymisation of judgments (if not already anonymised) will lie with the solicitors. In the first category of cases that will fall to the solicitors for the applicant; and in other cases to the solicitors for the party seeking publication.

Court of Protection
Here too the guidance distinguishes between two classes of judgment: those that the judge must ordinarily allow to be published; and those that may be published.

In the first category are all those judgments where the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media. It also includes judgments in a range of specified proceedings (unless there are compelling reasons why the judgment should not be published): for example, any application for an order involving the giving or withholding of serious medical treatment and any other hearing held in public; any application for a declaration or order involving a deprivation or possible deprivation of liberty; and any case where there is a dispute as to who should act as an attorney or a deputy.

In all other cases, as with the family courts, the starting point is that permission may be given for the judgment to be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given.

Unless the judgment is already in anonymised form, any necessary anonymisation of the judgment shall be carried out as the judge orders.

The guidance in relation to the family courts is here and in relation to the Court of Protection is here.

19/1/14