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MoJ publishes review of Family Courts Information Pilot

Review considers feasibility of producing written judgments in county courts and magistrates’ courts and publishing anonymised versions on BAILII

The Ministry of Justice has published its review of the Family Courts Information Pilot. The Pilot ran from November 2009 to December 2010. It was designed to test the feasibility of providing written judgments to parties in certain types of family cases and posting anonymised versions on a public website, the British and Irish Legal Information Institute (BAILII).

The pilot also looked at options for retaining written judgments for later life access by children.

The pilot made written anonymised judgments available to the parties in certain Children Act cases (listed at paragraph 9 in the review document) and to the wider public through the British and Irish Legal Information Institute (BAILII) website.

Between November 2009 and December 2010, five family courts took part in the pilot. The pilot courts were Cardiff and Wolverhampton County and Magistrates' Courts and Leeds Magistates' Court. The Ministry of Justice contributed towards the cost of additional court administrative duties which arose as a direct result of participation and funded transcription services relating to pilot cases.

The pilot sites and criteria for cases to be included were agreed by the President of the Family Division, and views on the precise definition of cases sought from a wide range of stakeholders including other senior members of the judiciary, lawyers groups and social workers who had been part of an Advisory Board prior to the pilots being launched.

Under section 20 of the Children Schools and Families Act 2010, which received Royal Assent in April 2010, a review of the results of the pilot is a prerequisite to the commencement of phase two of the Part 2 provisions, which allow the media greater freedom to report on family court proceedings. The current Government announced in October 2010 that no decision would be taken on the commencement of the Act until the outcome of the Family Justice Review.

This review reports and analyses the available, relevant information pertaining to the pilot in order to meet the commitment set out in the 2010 Act. It does not make specific recommendations concerning national rollout of the scheme, but highlights issues for consideration in making such a decision.

Aims of pilot
The pilot tested the feasibility of issuing written judgments in certain types of family cases in county courts and magistrates' courts, and putting anonymised judgments and written reasons on the public BAILII website. The pilot aimed to review the impact of the process on those working in the courts, the benefits to the parties and the wider public of the availability of a wider range of judgments and the potential costs of rolling out the scheme nationally. There were three strands to the work: 

In order to complete this review, views were sought from the judiciary, magistrates, legal advisers and court staff in the five pilot courts. The views of local lawyers, local authority, Cafcass and CAFCASS CYMRU representatives were also sought.

The local press was monitored in the pilot areas and views of the wider public investigated through an online user survey on the BAILII website. Administrative data was collected to monitor the time spent on additional tasks arising from the pilot by court staff, magistrates, legal advisers and the judiciary. Economic estimates of the pilot costs and implications of a national roll-out were also derived from this.

The views expressed on the pilot by those working in the pilot courts and comments from the wider public on the BAILII website indicate support for greater transparency and better public understanding of the family justice system. However, the pilot approach to achieving this gave rise to concern particularly among lawyers, the judiciary and court staff about the protection of the privacy of the families involved. Only a small group of members of the public replying to the BAILII survey took the opposite view on anonymity and privacy.

There were also practical concerns that the vast amount of material on the website would be difficult to navigate even by those familiar with BAILII. Whilst we did not expect the parties to cases to be greatly interested in the direct use of the website, no evidence was found of any impact of the scheme on the families concerned. Nor was any evidence of press interest found.

The information would, however, be of great value to researchers, policy analysts, those training the professionals involved and the judiciary. Local authorities were enthusiastic about the pilot scheme, as it offered additional backup in case of lost files, free access to judgments from the county courts with the additional provision of judgments in cases where the evidence was not contested but where it was nevertheless helpful to have a clear statement of what had taken place.

For children, there would be benefit in having county court judgments available on the local authority file in all cases, as these are kept for 75 years. The Ministry of Justice is only able to store Children Act files for 18 years in county courts and until the child reaches the age of 25 in the magistrates' courts.

There were understandable concerns from the pilot sites about national roll-out at a time of constraints and cuts. Although the work had been managed during the pilot period by court staff and the judiciary, it had made use of resources which may be required for other work in the current period of financial constraint.

The pilot captured 165 cases, of which 148 were used to assess the administrative cost. Cases going through the pilot were predominantly public law Children Act proceedings. In the majority of cases the number of children involved in the cases was recorded in the transcript (in some cases this information was not recorded or was not clear), where this data was present the average number of children per case was approximately 1.5. This implies 222 children were captured by the pilot. This is just under 2 % of all the children subject the public law care or supervision orders for roughly the same time period nationally. 

If it is assumed that the costs are proportionate to the number of children involved in care and supervision orders this would imply a national economic cost of approximately £500,000 in 2010. It should be noted that that this cost is based on a series of assumptions and should be considered uncertain. The assumptions used to estimate the costs are detailed in Annex C to the document. 

Issues for further consideration 
The provision of written judgments in all county court cases might be considered separately from the question of the publication of anonymised judgments in all cases. It is a matter for debate whether there is any real benefit in a national roll-out which would include each and every case falling within the criteria, as tested in the pilot, or whether the cases to be published might be sampled in some way.

Options could include allowing judicial discretion to publish only those cases worthy of noting publicly, or where either the parties or the media have specifically requested publication. This could reduce the burden on the judiciary, legal advisers and court staff caused by the anonymisation process. There may be a stronger case for arguing that, for all other cases falling within the criteria, unredacted judgments or reasons only might be prepared to be given to the parties and stored on the local authority case file for later life access. This approach would mean a change in current practice in the county courts only by requiring the routine production of written judgments for parties and the local authority. Cases requiring anonymisation and publication across both tiers of court would be a minority.