Leading judge slams Straw reforms to transparency in family courts

A senior judge has launched a powerful attack on legislation introduced by former Lord Chancellor Jack Straw in a bid to introduce greater transparency into the family courts, describing it as a “lost opportunity” to generate public confidence in the system.

Lord Justice Munby, who sits in the Court of Appeal and is a Law Commissioner, in particular criticised part 2 of the Children, Schools and Families Act 2010, which is not yet in force.

Speaking in a personal capacity when giving the Hershman-Levy Memorial Lecture for 2010, the judge said: “The new ‘scheme’, if that is what one can call it, is far from comprehensive. Divorce and ancillary relief are scarcely affected; the adult inherent jurisdiction not at all.”

Lord Justice Munby said a greater degree of consistency had been achieved – with the different treatment of the County Court and the Family Proceedings Court a thing of the past – but “at the heavy price of an increase in the areas covered, for the first time, by reporting restrictions.”

He added: “And at the same time it is far from obvious that the supposed relaxation of the relaxation of the reporting restrictions in children case – surely the crux of the problem – will actually have the desired effects, if, indeed, any effect at all.”

The judge said it would be difficult to predict the overall impact of the 2010 Act, assuming it is ever brought into force. He said he was inclined to share the view of some commentators that the Act was likely to reduce, rather than increase, the amount of information about children and other family proceedings which finds its way into the public domain.

Lord Justice Munby also criticised the process leading to introduction of the 2010 Act as “hardly likely to inspire confidence and not best calculated to engender ready acceptance in the outcome on the part of all those affected”.

He added: “The irony has not been lost on many that the process of engaging with problems of transparency in the family justice system was itself, at least in its latter stages, far from transparent.”

In particular, the judge said:

• Consultation was limited, and viewed by those invited to participate as “less than satisfactory”
• Part 2 was “seemingly tacked on” to Part 1 of a Bill primarily concerned with education and promoted by ministers in the Department for Children, Schools and Families (as it then was). It was left to those ministers, and not the Ministry of Justice, to steer the Bill through Parliament
• There was “astonishingly little debate” on Part 2 in either the House of Commons or the House of Lords, despite the considerable opposition to it in many quarters
• The Bill only got Royal Assent as part of the “wash-up” process just before the election,
• There were various technical defects in the drafting of the original Bill which “hinted at preparation under pressure of time”.

Lord Justice Munby added: “For an Act presumably designed to achieve its promoter’s stated ambition to ‘increase the amount and quality of information coming from the courts’, it is important to recognise that in a number of important respects the Act actually permits less to be reported than under the existing law.”

The judge pointed to the removal of the freedom to identify other professional witnesses (than expert witnesses), and the prohibition of the publication of orders and judgements in many situations where at present there would be no restrictions at all.

A further problem identified by the judge surrounded the media’s access, or lack of it, to documents related to the case. He said he suspected that the absence of access to documents and the continued application of s. 12 of the Administration of Justice Act 1960 made the ability to sit and observe less than attractive. “Indeed, some cynics say that the beauty of the scheme is that the journalists are allowed to be there but because they cannot, in fact, do anything useful they will not turn up,” the judge said.

Lord Justice Munby called for “radical and comprehensive reform” embracing all the various kinds of cases dealt with in the family courts and replacing the existing “complex and muddled system”.

He said the new system should be: principled, comprehensive, coherent, consistent, clearly and simply expressed, and cheaper to operate. It should also be “arrived at by a transparent process involving appropriate public debate and discussion so that what emerges will command acceptance even by those who may disagree”.

The judge added that there was still “a very long way to go before we reach an acceptable level of dissemination of family judgements”.