In October, Sir Andrew McFarlane, the President of the Family Division, gave a keynote speech on open justice at our annual conference. He talked about opening up the family courts to greater scrutiny and transparency—and the difficult balance to be struck with protecting the privacy of individuals, especially children.
There wasn’t enough time for him to field all our members’ questions on the day itself, so he kindly offered to answer more in writing afterwards. We passed on around 40 questions and comments; here’s what he had to say about the issues our family court members tell us matter most to them.
You’re spearheading the move towards greater transparency, but magistrates aren’t yet part of the Transparency Implementation Group (TIG). Why not?
Initially, when the TIG was set up, we began by looking at the broader issues of media engagement and researching the approach of other jurisdictions. We included a legal adviser as a member of the TIG in order to represent the relevant views regarding the operational impact of the recommendations with respect to the magistracy. Now that the work of the TIG is progressing and we have published our first progress report, we are looking into how the changes will affect the magistracy in more detail.
I am happy to announce that, after a suggestion made at your conference, we have now recruited two family magistrates to the TIG.
How will magistrates be affected by the move towards greater transparency?
As with judges at other levels, a proportion of magistrates’ decisions should be made public; how this will be done needs to be developed with input from the magistracy and legal advisers. As well as working with magistrate representatives of the TIG, I have previously discussed with the chair of your family court committee the role the Magistrates’ Association can play in ensuring that family magistrates are consulted on changes more broadly.
Of course, everyone will need training on any measures implemented as a result of the decisions taken by the TIG. Any training will be provided before the measures come in.
I know that some of your members are concerned that the possible identification of individual magistrates in any move to increase transparency in the family court might disincentivise some potential candidates from taking on the role. This is an issue I had not previously considered, and I am grateful to your members for raising it. I will be discussing this more fully in the TIG and in consultation with magistrates before any decision is taken.
Part of the move to transparency will see magistrates’ reasons being published. Will you support the development of training on this topic, including how to write child-friendly reasons?
I have long been concerned about the quality and content of the training given to family magistrates. I am grateful again to your members for raising that writing reasons doesn’t seem to be properly covered in their training. I will be taking this up with the Judicial College and those responsible for magistrates’ training.
Family legal advisers face significant burdens and many are choosing to leave. How are you addressing this?
I am acutely aware of the burdens faced by legal advisers. It is essential that we recruit more legal advisers and retain those we already have. I am also conscious of ensuring that legal advisers are not burdened by administrative tasks. I regularly discuss these issues with HM Courts & Tribunals Service (HMCTS), the Reform team, the Family Magistrates Oversight Group, the Magistrates’ Leadership Executive and the Ministry of Justice. These matters are at the top of my agenda for improving tier one of the family court.
How will you ensure that the pursuit of transparency doesn’t add to the burdens already facing family legal advisers?
After researching the approach of other jurisdictions and discussing within the TIG, the current view is that there will have to be a separate unit within HMCTS that takes on the work of anonymisation so that this additional task does not fall on legal advisors or the judiciary. We are still in the early stages of discussing how this would work, but I am aware of the need to avoid adding to administrative burdens and to ensure that transparency is achieved and does not take a back seat to the various other pressures faced by family court staff and magistrates.
Better data collection will help improve transparency. How will this be achieved?
The collection of data will arise from the ability of the new computer systems to record and count cases in a more detailed way than at present. This should not produce additional work for staff on the ground. Data collection will certainly not be the responsibility of magistrates.
There have been many new IT rollouts for magistrates recently. How can we ensure that any new IT systems are effective rather than an additional burden on magistrates and legal advisers?
I know that training for magistrates, both generally and in relation to any new IT, is crucial. For any new IT system, training should precede any rollout.
The plans for greater transparency rely a great deal on cases being reported. How can we be sure that the media regularly shows up to family courts and doesn’t only report on cases it feels are ‘sensational’?
The question of whether the press will ‘show up’ and what they may report is to be the central focus of the three pilots that are due to start in early 2023. Two will take places in cities (Cardiff and Leeds) and one in a rural setting (Carlisle). The pilots will permit reporters and legal bloggers to not only attend but also report on proceedings that would otherwise be conducted in private in the family court—subject to maintaining the confidentiality of the parties and children involved. There is more detail on how the pilots will work in the TIG’s first progress report and its pilot-specific sub-group’s minutes.
Our members regularly see the impact of the shortages of family magistrates. Is further direct recruitment to the family bench the way forward?
I firmly believe that there is great benefit in most magistrates having experience of sitting in both criminal and family courts. While the introduction of directly recruited magistrates to the family bench has plainly been a success, and is something that I welcome, I do nonetheless urge caution. It would be a troublesome state of affairs if the proportion of direct recruits leads to few, if any, of the family bench having experience in crime. There is a need for consistency across the magistracy. The experience and training magistrates gain by sitting in the criminal court gives a tight discipline to them in the use of procedure and evaluation of evidence, which is of benefit when sitting in the family court. I would deprecate any suggestion that there should be two entirely separate benches for crime and family.
As you can tell, our members found it very valuable hearing from you and posed many other questions that can’t be addressed here. When will magistrates have an opportunity to continue these important discussions with you and the Office of the President of the Family Division?
There are, of course, a vast number of things I could discuss with family magistrates. I value the time I spend visiting family courts across England and Wales, talking directly with family magistrates. I would also be happy to return to another meeting of the Magistrates’ Association to give a further speech on these issues in the near future.
Missed Sir Andrew’s keynote, including his heartfelt praise for the vital work that family court magistrates do? Catch up here.