If you're interested in family law, you'll need to keep a close eye on developments in this practice, including increasing moves towards transparency.
Family law is one of the most personal areas of law. Lawyers in this field deal with individuals' divorces and custody battles on a day-to-day basis. Cases that make the High Court's Family Division are sensitive in nature and strict privacy rules are in place. In the FD, cases and names are referred to by numbers and initials while children are granted total anonymity thanks to the Children Act 1989. But this status quo has been questioned in recent times, with the FD aiming to relax its strict regulations through increased transparency.
The reluctance of the court to publish information has been a source of contention with the press and public alike. Vague case reports have led to inaccurate and inflammatory media coverage, which puts the courts in a bad light. The Court of Protection is a repeat offender in the eyes of the press, criticised for its 'secret justice' that operates strictly behind closed doors. Under the FD's new transparency proposals, certain names and case details would become available to anyone.
The president of the FD, Sir James Munby, has been lobbying for transparency in the FD and Court of Protection for years, claiming that the two courts need to be opened up to the public eye. In 2004 (before he was president), Munby declared that the public has the right to know “what is being done in its name.” Despite his problems with court procedure, Munby still states that the identity of a child is something that needs to be protected.
As a compromise between open justice and the right to privacy, courts may soon be required to release all case information, with exceptions made only in certain circumstances: children and vulnerable adults will remain anonymous, but that right doesn't apply to anyone else involved in the case. Care and adoption cases are top of the transparency list as they cause the most "interference and intrusion by the state, local authorities and the court into family life," according to a 2013 judgment by Munby. It's these potentially life-changing cases that are at the centre of the transparency debate. With the debate in mind, the Nuffield Foundation decided to fund two projects: one will look at how to improve child anonymisation practices, and the other will evaluate the potential effects of making more of the FD's judgments publicly available.
Despite Munby's optimism, transparency has its fair share of critics. The effect of transparency on a child's emotional health is a sticking point – exposing children to the nitty-gritty details of their cases is considered a step too far. Withers waded into the debate in 2014 with a survey on proposed transparency in child and divorce cases. Participants – who were made up of family lawyers and journalists – were evenly split when it came to transparency in divorce cases. When it came to transparency in child law, the results were fairly damning. A whopping 81% opposed transparency in public law cases and a further 95% opposed it in private law ones.
Trainees at Withers had mixed views on transparency's future role in the family court. Some praised "greater accountability in the courtroom," but others worried about the effect of an ever-present press. Former training partner Suzanne Todd predicts significant changes in the family arena, stating: “Family law itself is changing so much that the future remains to be seen. There is a push for transparency in the law, especially after the Hohn v Hohn-Cooper case.” Todd also believes that the legal avenues clients go down may shift. “Arbitration is now coming to the forefront of the family arena as confidentiality is built into the process.” Family mediation is another increasingly popular option, as it deals with everything from a couple's finances to arrangements regarding their children. It's also quicker and much cheaper than going through the court system.