Is the Transparency Guidance experiment over?

family law

The number of published judgments is returning to pre-guidance levels

As many readers will be aware, in January 2014 the President of the Family Division Sir James Munby published Practice Guidance regarding the publication of judgments in the family courts. The intended effect of the guidance, which is commonly known simply as the ‘Transparency Guidance’, was to increase the number of family court judgments that were published, in order to counter the charge in some quarters that the family courts operate a system of secret and unaccountable justice.

Back in March Cardiff University’s School of Law and Politics published research that indicated that the application of the guidance across the country was ‘patchy’, with some courts appearing to publish judgments regularly, and others never at all. The research found that judges were struggling to find the time to publish judgments safely, without identifying the children and families involved.

I mentioned at the time that I run an online case digest, which publishes links to all (or almost all) family law judgments I come across, and that the figures for the number of judgments I link to each year clearly show the increase in published judgments since the guidance, and also a drop-off in the last year. I wondered whether the initial enthusiasm for the guidance was diminishing.

With another three months data since then I thought I would have a closer look at my figures. Now, before I get to them I should explain that this is not a very scientific exercise. Whilst in the course of my work I do ‘come across’ most full family court judgments that are freely published online (i.e. not behind a paywall), mostly on the Bailii website, but some elsewhere, and whilst I do publish links to most of them, some are not published. This may be simply because I missed them, or (in a few instances) because they were judgments of the lower courts and I chose not to link to them, as they did not appear to be of particular interest to my ‘audience’, which I believe consists primarily of family law professionals (although if anything, there would have been more of these lower court judgments in the months when more judgments were published anyway). It is also the case that some judgments are published long after they are handed down, and therefore will relate to an earlier time period. However, having set out those caveats, I still believe that my figures provide a fair picture of the number of family court judgments that have been published in recent years, and I’m not sure there is a better source of this information, as I’m not aware of any other source that includes several sites where judgments are published (the Cardiff research, for example, seemed to concentrate just on judgments published on Bailii).

OK, so to the figures. To give an idea of the picture before and after the transparency guidance was published, I have included everything since the beginning of 2013, up to the last full month, May 2017. These figures produce the following graph:

family law

As will be seen, the graph clearly shows the effect of the guidance, with the average number of judgments published each month jumping from about forty to about sixty. It also clearly shows the number dropping away since late 2015. The current trend is downwards, and it is not just a short-term thing, having been happening for nearly eighteen months. Note the dotted orange trend line, which clearly indicates that the figures are returning to pre-guidance levels. In short, barely more judgments are being published now than were being published before the President handed down his guidance.

If my figures are reasonably accurate (and I believe they are), it really does look as though the whole transparency guidance ‘experiment’ may be over, at least for the time being. What the reasons are for this, I don’t know, but I suspect that the researchers at Cardiff University may have hit the nail on the head when they indicated that judges simply do not have the time to publish their judgments. In these days of cut-backs and litigants in person they are already under enormous pressure, and finding the additional time to safely publish their judgments is just impossible.

Of course, the transparency guidance ‘experiment’ can be ‘kick-started’, perhaps with a ‘gentle’ reminder from the President, but, as with so many things, it may be that what is really needed is not more guidance, but more resources.

Photo courtesy of USDA via Flickr under the Public Domain.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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4 comments

Samantha - June 27, 2017 at 10:25pm

Credit where credit is due,I find it easier to understand blogs like many others,who don’t practice or have experience in family law. The last 22 months has been a real eye opener. I enjoy reading your blog more than others now. But your absolutely bang on right with regards to the above. Not many transcripts are being done and when they are,there taking weeks,which then can’t be produced to try to revoke orders as you have to supply the judgements.. if you haven’t no judgement you can’t appeal,I wasn’t surprised by the correct wording as I always say you write greatly in your blog. The proper numbers can’t be given out as a lot of questions would be asked as to why the judgements which are available don’t run constantly with what was actually said and more errors being made. How the transcripts are wrote out,we struggle to understand the errors being in them. It was at the time of mumbies decision he also grew the greatest respect from a lot of people,there was hope,for many of all different classes especially when it came to the family hearings. When people started to see others weren’t following in the legislation mainly and things being mixed up,that hope faded. One judge can’t change anything on his own,others need to follow in his example,it’s only a opinion, but he’s come to far,and sadly retiring this year. But it’s definitely off the scales and no not many judgements are being done as we still raise awareness of this both in wales and England. Maybe if some could actually get the figures of child care cases alone,this would be of further help to be in “public interest” how many cases there have been in the last 2 years, how many by the local authorities on a whole and how many adoption orders. From April 2016-December 2015 882 children were removed and rubber stamped,that’s a lot of children in not even the financial year? If that makes sense that’s more than the 40% which was raised by the government themselves. How many didn’t we know about, these are just people who made contact. But every case nobody can say there wasn’t a good enough reason I’d be a hypocrite myself. The figures don’t add up, we can only raise so much awareness and when for legal reasons things can’t be discussed (legal barriers and especially the children there names must be protected at all costs) sometimes someone has do do something to try and say this is the law, why is this happening,we can’t repair it,,however changes must happen,and reforming the family court is possible. People might not like my comment or maybe coming across wrong,but it has to be said.

Julie Doughty - July 4, 2017 at 3:33pm

Hi John, thanks for this and for mentioning the research I worked on at Cardiff University. You are right that we only covered judgments that were on BAILII, because we were evaluating the effects of the Presdent’s guidance and that is about BAILII only. We did look at the Judiciary website and say something on this, but only found a couple of cases that weren’t on BAILII as well.

I’m interested that you have found other free sources of judgments but I assume almost all you pick up are from BAILII. We only analysed cases from the first two years from Feb 2014, but we did notice that the numbers seem to be falling more recently.

While you ask whether transparency is an experiment that is over, the guidance is still in place, and some judges were following it to the letter in 2014-2016. You have prompted me to have a look at the BAILII figures for the past year. Because if you are right, that we are back to pre-guidance levels, that suggests that circuit judges have stopped publishing altogether.

John Bolch - July 4, 2017 at 4:48pm

Thanks Julie. Yes, the vast majority of my cases are on BAILII, and those that aren’t usually find their way there later. As I said, my numbers are not entirely accurate, but I think they present a reasonably accurate picture.
I realise that the guidance is of course still in place, but it seems clear that the initial enthusiasm to publish has disappeared!
John

Julie Doughty - July 9, 2017 at 11:20pm

Hi John, I’ve now done a quick count of monthly figures of Family Court judgments on BAILIi and you are right, they are currently very low. However, it’s not quite accurate to say we have returned to pre-Guidance levels, because before the guidance we had virtually no judgments published lower than a High Court judge, but now we are still getting a few from circuit judges. Overall the direction is as you indicated, with even High Court judges publishing less than they did two years ago.

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