When James Munby was a law student, his fellow undergraduates saw him as a future judge. And not just any old member of the judiciary: students commenting on his erudite contributions to the Wadham College law library suggestions book invariably referred to him as ‘Munby MR’.

 We got it wrong: Sir James Munby is now president of the high court family division. Since the present master of the rolls, Lord Dyson, can remain on the bench for four days longer than Munby – despite being five years older than him – there seems little chance that Munby will get the promotion we tipped him for more than 40 years ago.

A better bet is Sir Terence Etherton, chancellor of the High Court. Though the two men became heads of division on the same day in January, the chancellor is some three years younger than the president. What they have in common, though, is that both have spent their first few months letting some much-needed daylight into the dustier corners of their divisions.

Munby drew admiring headlines at the beginning of this month when he ruled on the case of a child who within a few hours of being born had been taken into care by Staffordshire social services. The child’s father had secretly filmed local authority staff executing an emergency protection order at the family home and posted it on Facebook.

Staffordshire responded by seeking an injunction in very wide terms. Munby agreed to ban publication of the child’s name but not the name of the social services department nor, crucially, a low-resolution video of the baby being taken away. There were powerful arguments, the judge said, ‘for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby’.

The recording, edited to comply with the judge’s order and published on a newspaper website, is indeed distressing. But, as Munby said, orders of the kind that family judges are invited to make in care proceedings are ‘amongst the most drastic that any judge in any jurisdiction is ever empowered to make’. Courts sometimes got it wrong.

‘We must have the humility to recognise,’ he added, ‘that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.’

As if to emphasise the point, the Court of Appeal gave judgment a day later in a case involving a 13-year-old girl, ‘M’, whose mother, according to Lord Justice McFarlane, had ‘doggedly refused to allow M to develop and maintain a relationship with her father without any good reason whatsoever’. Agreeing, Lord Justice Aikens said the family justice system had ‘failed the whole family, but particularly M, whose childhood has been irredeemably marred by years of litigation’.

In July, Munby published draft guidance which, if implemented, would greatly increase transparency in the family courts and the Court of Protection. Judgments in cases with a public law element would be published unless there were compelling reasons to the contrary. In other family cases, parties or journalists would be able to apply for judgments to be made public. In all cases, family members would normally be anonymous but public authorities and expert witnesses would not.

Over at the Rolls Building, Etherton is setting about modernising the chancery division.

Soon after his appointment in January, he asked a senior chancery judge to review the division’s practice and procedures. Lord Justice Briggs, as he has since become, produced a provisional report of more than 250 pages at the end of July.

Briggs found that the chancery division was the most poorly served of any court or tribunal in the UK by information technology, despite having what is probably the most document-heavy workload. As long as this lasted, he noted, it would

be a ‘very serious obstacle’ to modernisation. ‘All filing is currently physical rather than electronic,’ said Briggs. ‘There are, in London, no individual judges’ diaries, still less software on which they could be constructed.’

Subject to that, though, the chancery division was held in generally high regard by its users. Nobody mentioned Bleak House.

But more hands-on judicial case management was needed. Case management should be focused on dispute resolution rather than trial preparation. Time allowed for trials should be rationed by the court rather than chosen by the parties – just one of many culture changes that court users would need to embrace.

Practitioners will have their own views on the detailed proposals. But Etherton, like Munby, has shown that time-honoured practices, unlike the courts they govern, are not set in stone.

 joshua@rozenberg.net