Leading from the front
Leading from the front
Top family judge takes on his critics
My column about Sir Andrew McFarlane’s plans to open up the family courts of England and Wales is printed in today’s Law Society Gazette and now available to read online. In it, I say that I agree wholeheartedly with his proposals. You’d expect that from a journalist, of course.
But there will be opposition. Cafcass, the non-departmental public body that represents children in family proceedings, said:
Any increase in the transparency of the family court process and decisions must be balanced against what is best for the children and young people going through proceedings. Their experience, wishes and feelings must come first. A child or young person learning about their background through media reporting, or details of their family life becoming known within their community, could be potentially harmful. They must have their welfare and their need for privacy respected, particularly as we know that children and young people have expressed a wish for their stories to remain out of the public domain.
McFarlane agrees with the need for balance. But he does not think that the wishes of children should trump the need for open justice.
Needless to say, McFarlane’s plans have been welcomed by the Transparency Project. They say:
The president notes that these rule changes will be subject to government/ministerial approval. We think however, that it is very likely that this document will have crossed the desk of the lord chancellor before publication and so in broad terms there is unlikely to be major opposition.
McFarlane certainly sent the Ministry of Justice an advance copy of his proposals. And a minister will need to sign off the necessary rule changes. But the Family Division president made it clear last week that he did not seek government approval for what he was about to announce. And that is how it should be; he is a serving judge, and independent of the government.
You can hear my interview with McFarlane on Law in Action, to be broadcast on BBC Radio 4 at 4pm tomorrow. The podcast will then be available on BBC Sounds.
In your assertion:
'McFarlane certainly sent the Ministry of Justice an advance copy of his proposals. And a minister will need to sign off the necessary rule changes. But the Family Division president made it clear last week that he did not seek government approval for what he was about to announce. And that is how it should be; he is a serving judge, and independent of the government.'
... you get everyone's law-making roles a little muddled up.
McFarlane can announce what he likes. If law or rules are to be changed only parliament or rule-makers can lawfully deal with changes. Only the Family Proceedings Rules Committee can change rules where it comes within there relatively narrow powers (Courts Act 2003 ss 75 and 76). It has nothing to do with a 'minister': the powers are vested in the FPRC whose changes are subject to the negative resolution procedure: CA 2003 s 79: ie the rules go through on the nod unless any MP wants them debated first.
If primary law (statute or common law) is to be changed this is a matter for parliament, as McFarlane recognises.
CAFCASS has its own interests to protect so their representations must be seen against that backdrop.