Draft practice guidance was issued on 12 July 2013 by Lord Justice Munby, President of the Family Division. At this stage the document is a draft for comment and discussion. If implemented this means that judgments determining battles over where children should reside and care orders will be published unless there are “compelling reasons” not to.

In many ways this draft practice guidance is not a huge surprise as Munby LJ issued an earlier statement in which he identified transparency as one of three key areas for reform. This issue applies equally to the Court of Protection (which deals with vulnerable adults).

Legal Framework

Section 12 of the Administration of Justice Act 1960 (“AJA”) provides that it is a contempt of court to publish a judgment in a family court case involving children or a judgment in a Court of Protection case unless either the judgment has been delivered in public or the judge has authorised publication. Judgments are prepared using templates which when the judge has authorised publication usually contain the following rubric, or rule, on the front page:

“This judgment is being handed down in private on … The judge hereby gives leave for it to be reported.

This judgment is being distributed on the strict understanding that in any report no person other than the advocates or solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of thechildren and the adult members of their family must be strictly observed.”

So far as the first part is concerned this disapplies s12 of the AJA and means the publisher or reporter will be not be liable to be committed to prison for contempt of court.

The second part of the rubric makes the permission conditional. It is therefore essential that the second part of the rule is also complied with.

S12 AJA does not of itself prevent the publication of the name of the child or adult who is the subject of the proceedings nor of anyone else who is involved in the proceedings. The anonymity of children in family cases is protected by s97 of the Children Act 1989 but that ceases to apply when proceedings come to an end. (There is no similar provision in relation to the Court of Protection although Orders for anonymity are often made).

It is not clear legally whether s12 applies to proceedings in a family court where representatives of the media are present or entitled to be present in accordance with rule 27.11 family procedure rules 2010.

The guidance distinguishes between 2 classes of judgment: Firstly those that the court must ordinarily allow to be published; paragraph 16 and those that may be published, paragraph 17.

If implemented the new guidance will be a victory for groups that have accused the family court system of a lack of transparency and “unaccountable justice”. It comes following a campaign by The Times to open up the 95,000 hearings held in private every year. Senior family judges believe that opening up the family courts that transparency will restore public confidence that the right decisions are being made and shine a light on any defects or injustices.

A number of care cases have been exposed by the Court of Appeal as a result of “disgraceful” decisions by local authorities. In one case in 2008 judges castigated a council for its “wholly unacceptable abuse of power” in racing through the adoption of an 18 month child blocking a challenge by the child’s father. The Times says in its leader on 22 July “These changes are welcome and overdue and Lord Justice Munby deserves credit for making them. By their nature all proceedings in family courts are sensitive. But justice should not be a dark room through which a person must walk blindfolded, hoping to leave by the right door.”