There is a tension between allowing the media to publish even limited information about cases in the interests of increasing public confidence and a child’s right to keep personal information about them and their experiences private. There is a danger that justice in secret could allow injustice to children, or a perception of injustice. [said the Justice Committee]
75. The Government agrees, but we believe that this complicated and sensitive area of law needs to be reviewed carefully, including gathering the views of children who have experience of the family courts. Therefore, we will not be bringing forward further legislative change in the near future. We will instead look at measures that can increase the amount of publicly available information about the work of the family courts, including encouraging judges to publish more family court judgments. In particular, Ministers will examine the results of the family court information pilot, which trialled the online publication of family court judgments in an anonymised form.
The issue about ﬁnding out how very difﬁcult decisions are made will not come, I feel, through the media for a variety of reasons, but foremost they actually don’t have the time or the access to be able to do that. I don’t think the issue of public education is going to be served by media access and reporting. It has to come by another mechanism. One of those mechanisms is the pilot scheme for anonymised judgments. That can be improved enormously, I think. For example, in Australia online judgments enable people to look things up. If you wanted to look at something around domestic violence, there is an index that will allow you to look at cases where that has been dealt with. If you wanted to look up issues around whether fathers were suffering bias or discrimination, they are categorised in that way. So the pilot scheme could be tailored to look at contemporary issues and problems in a way which would help the public directly rather than through the media. The media will only ever be able to talk about one case at a time. What we’re looking at is the trend of family courts and how the public can feel conﬁdent about the way in which they operate. A one-off reporting of one case, where a journalist talks to a disgruntled litigant, will not help the reputation of the family courts. What you want is fair, accurate, balanced reporting.
A more focused, indexing of judgments placed on the Baili website from this pilot would enable parties and the general public to explore speciﬁc issues by topic area with headings explaining the issues and complaints which judgements seek to address.
It is very much a part of our culture. In fact, over the years the trend has been towards more openness. In fact almost all judgments are now de-identiﬁed and put up on the AustLII website. I understand you have a similar legal information website in the UK. Almost all judgments are de-identiﬁed and placed on that website. The courts are open. It seemed to reduce the possibility that mischievous claims can be made about what goes on in family courts. It seemed to contribute to a greater understanding among the general public of what happens in family courts, how matters are dealt with and the types of outcomes that occur.
The FLBA supports the current pilot for providing anonymised judgments in family cases to improve public understanding of how, and why, the family courts make the difﬁcult decisions that the law requires of them; it supports the provision of age-appropriate summaries of judicial decisions to children who have been the subject of decisions in family courts as soon as possible after the conclusion of their case; and the availability of full transcripts of judgments to them on reaching adulthood. It is vital that ﬁnancial and human resources are invested in order to allow the scheme to be properly tested in the pilot. The Ministry of Justice has yet to evaluate the pilots. Lack of resources delayed their start, may also limit their effectiveness and any real likelihood that they will be rolled out nationally.’
One of the difﬁculties is that we sit in private, and we sit in private at the behest of Parliament in order to protect the conﬁdentiality of children. Of course, that is very easily translated in the minds of the press to secret justice. I am doing my best to encourage judges, whenever possible, to put heir judgments into the public domain, suitably anonymised. If you look at the website BAILII, you will ﬁnd a number of High Court judgments in the public domain. There has recently been a pilot to try and do the same for the county court because it is the circuit bench who, up and down the country, are doing the bulk of this work. They are the workhorses of the family justice system. I would very much like to see many more judgments in the public domain suitably anonymised so that children are protected and the public would have a perception of what we are doing. There is a huge credibility gap and we are addressing it.’
(a) the general public is unaware of the website Bailii;(b) the reasons as they stand are mixed and varied. Some of the early publicized reasons gave so much information that anyone in the community would have been able to identify the families and others contained no information which makes their publication meaningless; and(c) it is currently unclear with whom does the responsibility rest for the drafting the anonymised reasons. Similarly there is no indication of the cost implications of such an undertaking.