Plain Speaking, Publicity And The Family Courts 

Published on 12 April, 2023 | Katie Welton-Dillon

One of the recurrent themes on this ‘blog has been that of constant change in Britain’s households.

Unsurprisingly, perhaps, that has been reflected in the work – the volumes and practices – of the family courts.

It is certainly true that they are being kept very busy.

Figures released by the Ministry of Justice at the end of March, for example, revealed that the number of new cases which started in the family courts during the final three months of last year was 17 per cent higher than in the same period in 2021 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2022/family-court-statistics-quarterly-october-to-december-2022#financial-remedy).

Dealing with families who require help in a fair and expedient fashion is critical.

As my colleague Ellen Fell wrote in November, there is also a desire to make family courts more open, in part to make them less intimidating (https://hallbrown.co.uk/transparency-and-tension-opening-up-the-family-courts/).

That has been acknowledged by Sir Andrew McFarlane, the President of the Family Division of the High Court, who has talked of there needing to be “a major shift in culture and process” (https://www.judiciary.uk/guidance-and-resources/transparency-in-the-family-courts-report-3/).

Such moves continue with several core principles in mind. They include the requirement that when family courts consider matters relating to the upbringing of children, their welfare “shall be the court’s paramount consideration” (https://www.legislation.gov.uk/ukpga/1989/41/section/1).

As Sir Andrew noted, that importance was enough to stymie previous attempts to increase media coverage of cases handled by the family court.

Nevertheless, a tension has remained when it comes to balancing the need to protect children and improve awareness of how courts function and why decisions are made in a particular way.

In the same month in 2021 that Sir Andrew observed the current rules for the reporting family cases was “not sustainable”, research by the Nuffield Family Justice Observatory found that children were often “left in the dark” and not sufficiently involved in court proceedings which impacted on their lives (https://www.nuffieldfjo.org.uk/wp-content/uploads/2021/10/Childrens-experience-of-private-law-proceedings.pdf).

It has been interesting, therefore, to read of one family judge’s efforts to explain things in a very direct manner.

The Times has reported how John McKendrick KC, a deputy High Court judge, had written to two young boys whose parents had gone to court to resolve future childcare arrangements as part of their divorce (https://www.thetimes.co.uk/article/7cc409a2-a3e9-11ed-b7e5-9dfcc7cfc218?shareToken=f5cd3bab21e2b70cf2a117eb6b0267d6).

The boys’ father had wanted them to remain with him in London, while their mother asked the court to allow them to live with her in Somerset.

In what the ‘paper described as “poignant, plain-English letter”, Mr McKendrick set out in very simple terms his decision and the reasons for it.

He also stated that he had asked the boys’ mother and father to “to stop ‘the crap’” and “behave a bit better”.

Although Mr McKendrick’s approach might seem unorthodox, it is not unusual for a family court to request that rulings are conveyed in a way which children can comprehend in cases which justify a more formal approach to their being informed.

Usually, however, it is done by an official known as a guardian who is appointed by the court to represent the views and best interests of children.

Given that many cases involve children who are aware of difficulties between their parents and that court proceedings are taking place, it can be a very welcome intervention.

There is always a risk that parents – especially those in matters featuring a strong degree of disagreement – might give their own, partial version of the truth, something which possibly stores up trouble for the future.

Having said that, I don’t think that judges should be obliged to pen letters such as Mr McKendrick’s in every case because they already have enough to contend with on a daily basis.

Where appropriate, though, it can help lessen some of the discomfort arising from family break-ups for those who are arguably the most vulnerable in such situations.