Wednesday, December 18, 2013

Through a glass darkly

"This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published."

So said Sir James Munby yesterday in P (A Child). A considerable amount has already been written  about the judgment, and far more eloquently than I could manage - see, for example, this post by Lucy Reed on Pink Tape and this post by Andrew Pack on Suesspiciousminds. I just really wanted to make one point.

It seems to me that the only way to (try to) avoid what happened in this case vis-à-vis the media is to publish all judgments (suitably anonymised, of course). Only then will the media have something authoritative to refer to in all cases, before they start to go off at half-cock. Of course, whether they choose to read the judgment and if they do whether they choose to believe it is another matter. There is also the problem of non-lawyers understanding judgments, which may mean a greater drive for the use of plain language.

If all judgments are not published, then there will always be cases that the media pick up without anything accurate available to (hopefully) guide them in the right direction.

The practical problem with this (and possibly with what Sir James has in mind - I don't know how many judgments he envisages being published) is, as Lucy Reed points out in her post, the resources required to publish so many judgments, particularly in times of cut-backs.

Then there will always be those with an agenda against the system who will write the story that fits that agenda, irrespective of what any existing judgment may say. It is no good judges and lawyers pointing to the judgment after the event. By then, the damage has been done, and anyway all too many people prefer to believe what they read in the Daily Fail, rather than anything those corrupt lawyers may say.

I'm not convinced that the effort involved in publishing all judgments, or even just many more judgments, is likely to be justified. Even if they are read and properly understood, will they really fully enlighten the unenlightened as to the arcane goings-on of the (hitherto) 'secret family courts'?

Oh, and before I go congratulations to Lucy Reed for being (it is believed) the first legal blogger to be quoted in a judgment!

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