Local authorities enthusiastic about Family Courts Information Pilot, review finds

Local authorities were enthusiastic about the Family Courts Information Pilot (FCIP), a Ministry of Justice review has found.

However, the review also revealed concern among private practice lawyers, the judiciary and court staff about the protection of the privacy of the families involved.

FCIP involved making written judgments available to the parties in certain Children Act cases and anonymised versions of judgements and written reasons to the wider public through the British and Irish Legal Information Institute (Bailii) website.

The pilot, which took place in five family courts between November 2009 and December 2010, also scoped options for retaining written versions of the judgments or reasons for the children involved in the cases to look at when they were older.

The main findings of the MoJ’s review were:

• 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”
• The pilot approach to achieving these objectives “gave rise to concern particularly among lawyers, the judiciary and court staff about the protection of the privacy of the families involved” and so the scheme may not be the best way forward. Such protection of privacy was considered essential. There was also concern that it was already difficult to get parents to open up in front of the court and that "more scrutiny could push people away altogether"
• There were practical concerns that the volume of material on Bailii would be difficult to navigate, even for those familiar with the site
• “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 be “of great value” to researchers, policy analysts, those training the professionals involved and the judiciary
• Local authorities were enthusiastic about the 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”
• The short judgments in non-contested cases were particularly appreciated by local authority lawyers "as sometimes a matter may not be actively opposed but the lawyer may be without instructions, the parents may not be present, or may change their minds at a later date"
• 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 MoJ can only 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 national economic cost was estimated at £500,000 in 2010 but this was made on a series of assumptions and “should be considered uncertain”.

The review identified key issues for further consideration. One was whether the provision of written judgments in all county court cases should 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,” the review said.

It suggested that the options could include allowing judicial discretion to publish only those cases worthy of noting publicly, or where either 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.”

The review added that there was 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 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,” it said. “Cases requiring anonymisation and publication across both tiers of a court would be a minority.”

Under s. 20 of the Children Schools and Families Act 2010, a review was a prerequisite to the commencement of phase two of the Part 2 provisions allowing the media greater freedom to report on family court proceedings.

However, the coalition government has said it will not make a decision on commencement until the outcome of the Family Justice Review.

Philip Hoult