Accompanying his most recent “View from the President’s Chamber,” the President of the Family Division and Court of Protection has published a draft of proposed Guidance on the Publication of Judgment. The Guidance is intended to apply both to family proceedings and those in the Court of Protection, the President noting in the introduction to the proposed Guidance that:
- Very similar issues arise in both the Family Court (as it will be from April 2014) and the Court of Protection in relation to the need to protect the personal privacy of children and vulnerable adults. The applicable rules differ, however, and this is something that needs attention. My starting point is that so far as possible the same rules and principles should apply in both the family courts (in due course the Family Court) and the Court of Protection.
- I propose to adopt an incremental approach. Initially I am issuing this Guidance. This will be followed by further Guidance and in due course more formal Practice Directions and changes to the Rules (the Court of Protection Rules 2007 and the Family Procedure Rules 2010). Changes to primary legislation are unlikely in the near future.
In outline, the material proposals relating to the Court of Protection are that:
- in cases involving the personal welfare jurisdiction of either the High Court or the Court of Protection, where the judgment relates to the making or refusal of any order authorising a change of the placement of an adult from one with a family member to a home; any order arguably involving a deprivation of liberty; any order involving the giving or withholding of significant medical treatment; or any order involving a restraint on publication of information relating to the proceedings, the starting point should be that the judgment should be published (and put on Bailii) unless there are compelling reasons why it should not;
- in all other cases heard in the Court of Protection by Circuit Judges, High Court judges and persons sitting as judges of the High Court, the starting point from now on is that a judgment (where available) may be published whenever a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that the judgment may be published taking account of the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression);
- A judgment should in any event be published whenever the court considers that publication is in the public interest, whether or not a request is made by a party or the media;
- In all cases where a judge authorises publication of a judgment: (i) public authorities and expert witnesses should be named in the judgment as published, unless there are compelling reasons not to; and (ii) anonymity in the judgment as published should not extend beyond protecting the privacy of the families involved, unless there are good reasons to do so.
The President has expressly stated that the draft of the proposed Guidance is intended for comment and discussion: views should be forwarded to his Legal Secretary, Penelope Langdon.