Obvious considerations of costs and practicable feasibility suggest that there is probably only limited scope for expanding the amount of information that appears in court lists. One suggestion is that a catch-phrase or a few catch-words might be added after each case number to indicate in slightly more detail what the case is about. I shall welcome all suggestions. If there is thought to be merit in the idea of adding a catch-phrase or a few catch-words, it will be of great help to have some suggested examples of what would be thought useful.
Thirdly, I am seeking views on further guidance which I propose to issue, dealing with the disclosure to the media of certain categories of document, subject, of course, to appropriate restrictions and safeguards.
After discussion with a number of judges, my current thinking is that the next step might be a pilot project, confined to cases heard by High Court judges sitting in London (and possibly a limited number of DFJs elsewhere), under which the disclosable documents would fall into two categories:
(1) Documents prepared by the advocates, including case summaries, position statements, skeleton arguments, threshold and fact-finding documents.
(2) Some experts’ reports, or extracts of such reports.
I view category (1) as the logical next step. I envisage that advocates will prepare the documents in a form that can be released to members of the accredited media. The purpose will be to facilitate their understanding of the case and to assist them in performing their watchdog role. If a case summary is available for members of the media to read, they will be able to decide quickly whether the case is one they would wish to attend, as they are entitled to do.
I envisage that at least initially, and until it has been possible to evaluate the outcome of the pilot, documents disclosed in this way will remain confidential, unless the judge orders otherwise, so that any copying or onwards transmission or disclosure by members of the media of the documents or their contents would be a contempt.
I do not anticipate that this will be unduly burdensome on advocates, nor lead to any significant change in practice. Advocates will quickly become used to drafting documents in a way that means they can be disclosed to the media. Plainly, particular care will have to be taken when litigants in person are involved.
Category (2) is more complicated and more controversial, which is one reason why it is proposed to be piloted in the way I have described. It will not be every expert’s report that will be released but only those identified by the judge, having heard submissions. In some cases consideration may have to be given as to whether the report should be redacted or anonymised and if so who should carry this out.
I propose that in the first instance disclosure be confined to reports in the ‘hard sciences’.
Again, the purpose will be to facilitate the media’s understanding of the case and to assist them in performing their watchdog role. Again, I would envisage that at least initially, and until it has been possible to evaluate the outcome of the pilot, documents disclosed in this way will remain confidential, unless the judge orders otherwise, so that any copying or onwards transmission or disclosure by members of the media of the documents or their contents would be a contempt.
I propose that where such disclosure is being considered, the expert should be informed prior to disclosure. It will be important to see whether the prospect of disclosure of their reports impinges on the willingness of doctors and others to offer their services as experts, and also on the content and quality of their reports.
In addition to the obvious points, I shall value responses on the following questions:
(1) Which types of documents should be included in category (1) and which types of expert in category (2)?
(2) Should access to such documents be confined to those members of the accredited media who actually attend the hearing or extend to any member of the accredited media entitled to attend the hearing, whether or not they do attend?
(3) What further restrictions and safeguards are desirable?
I am very conscious that this is a topic which causes nervousness amongst many professionals in the family justice system. I am aware of these concerns and propose to proceed carefully. Assuming that a pilot along these lines proceeds, I will want to receive feedback from all interested parties, including the experts themselves, the media, the legal professions and other interested parties, not least those who speak for children and young people who have been through the system.
Fourthly, I am seeking preliminary, pre-consultation views about the possible hearing in public of certain types of family case. I emphasise that before any specific proposals are implemented I will consult further on the detail of whatever is proposed. My purpose now is to canvass preliminary views in order the better to be in a position to decide whether and if so how it might be appropriate to proceed. I am likely to propose that if the matter proceeds at all, it will initially be by way of a pilot.
This is obviously a very large question. Without in any way limiting responses I shall particularly value views on three questions:
(1) What types of family case might initially be appropriate for hearing in public?
(2) What restrictions and safeguards would be appropriate?
(3) What form might a pilot take?
When a family court sits in public, there are various legal consequences. There are two in particular which will need the most careful consideration.
First, section 12 of the Administration of Justice Act 1960 does not apply to a hearing where the court sits in public. What are the implications of this? Will other restrictions and safeguards need to be put in place, and if so which?
Secondly, the confidentiality which attached to documents and information produced under compulsion ends when the material is read out in open court. This has particular ramifications in the context of financial remedy cases. Again, what are the implications of this? Will other restrictions and safeguards need to be put in place, and if so which?
It will be especially helpful to have the observations and comments of anyone who has had experience of a family case of whatever type which has for any reason been heard in open court. Has this caused problems?
I look forward to receiving views, comments and suggestions. They should be sent by email to Andrew Shaw at Andrew.firstname.lastname@example.org.