Last week we attended the open meeting of the Family Procedure Rule Committee. It only happens once a year, and you’ll be pleased to hear that we sat through the three hour long meeting so you didn’t have to.
From our perspective, the most important news is confirmation that the Reporting Pilot will be transformed into a permanent feature of the Family Procedure Rules from early next year (as heralded in a number of public comments by the President of the Family Division and Mrs Justice Lieven recently). This means there will be a presumptive starting point of permission to anonymously report in all family courts at all tiers (in most children cases). As with the pilot, the court will still have the power to put in place other arrangements where that is not appropriate, but it will, we hope, achieve a shift in mindset that a pilot cannot. Incorporating the ‘pilot’ into the rules means it’s here to stay. (That said, the rule entitling journalists’ attendance has been a rule since 2009 (and legal bloggers since 2019) and both are still regularly told they have to ‘apply’ to enter. So perhaps we are being a smidge optimistic).
Reporting Pilot coming of age
The first thing that the RC did was to approve the minutes of the previous (October) meeting. Those have been published pretty swiftly, so we can now read those for context (we didn’t have them at the time of the meeting – more on that below). They tell us that this:
…In July 2024, the Committee approved the proposal to include a provision in the FPR, with a supporting PD to underpin a permanent, national scheme for this pilot.
9.2 The Committee agreed that further consultation was not required on this FPR and PD since public engagement with the pilot had been extensive since it began and the pilot had benefited from an external evaluation which was published in August 2024. On the question of giving reasons for not making a transparency order, members agreed that written reasons would be too onerous so verbal reasons would be sufficient. In response to a question from a Committee member, Jack [Harrison] confirmed that the responsibility for complying with the transparency order with respect to redactions was for reporters not for judges or legal practitioners.
9.3 The Committee approved the draft PD subject to an amendment on the written reasons point and asked for a revised draft to be presented at the meeting in November.
Those amended documents were before the committee at the open meeting. We didn’t have sight of them, but it appears that PD27B will be updated to incorporate the ‘pilot’ arrangements and from the above minute we can see that it is also likely that the PD will say that written reasons are not required (we would guess it will more likely say ‘not usually’ rather than never).
At the November meeting there was discussion of a couple of minor tweaks to the proposed PD. One point of particular interest was the discussion around the draft wording of ‘strong encouragement’ for reporters to give advance notice (which replicates the pilot guidance), which the committee agreed to change to ‘may’ following some pretty forthright comments from the President of the Family Division about the need to achieve cultural change. Our note of the President’s comment isn’t word for word but is as follows:
The ability to contact the court is often fraught with difficulties. I don’t think journalists need to be giving advance notice at all. They have a right to be there. We need to move away from the current culture of questioning why they are there, who tipped them off or their source. They have a right to be there. The proposal is to give notice so [the court?] can make accommodation in terms of time and other matters. Its not a crucial element in the scheme and I share Rhys [Taylor]’s despondent view that it would be difficult for journalists to follow. I would hate for them to be criticised or told you can’t join because you failed to get in touch with the court.
Those comments follow on from a recent TIG meeting where we raised the difficulties of contacting the court either both by email and telephone, particularly now that listing telephone numbers in many courts have been replaced by a central call centre as part of HMCTS reform. We also raised (again) the chilling effect of reporters still often being asked who their source was, which has happened both to us and to journalist colleagues repeatedly not just before but during the pilots. We are really pleased to hear this message being so clearly set out by the President in a public forum, and relieved that the PD will not replicate the pilot wording, which in our experience was often interpreted as amounting to a requirement of notice, or at least a basis to express disapproval when we didn’t give it. We will continue, as we always have done, to give notice when we can, because we know it makes the process smoother for everyone.
The Chair, Keehan J was supportive of the adoption of the alternative ‘may’, which he thought might help overcome the view that there is reluctance to have reporters present. There was, he thought, a ‘need to overcome that sort of thought process’. A Circuit Judge and a barrister member of the committee each voiced their concern about practical inconvenience caused by attendance without advance notice. The barrister wanted notice so she could be ‘more prepared’, could obtain advance instruction so she could make submissions. She didn’t want to be in a situation where a large part of a 1 hour hearing was taken up dealing with that issue. Our experience and our understanding of how the pilot has gone tells us that this is a misplaced concern. If and when advocates up-skill themselves with a basic level of knowledge and settle into an appreciation of the fact that reporters’ attendance is normal and nothing to be alarmed about, they are well able to explain and reassure clients and take instructions, allowing any issues about attendance and transparency orders to be sorted out efficiently in a few minutes. We gave an example of that in a recent report from a pilot court in Cardiff.
We also gleaned that the new rules / PD will incorporate the use of codes on court lists for public law cases, to help reporters understand the sorts of issues likely to come up in cases. Some of the judges were worried that this might add an administrative workload but those involved with the pilot were able to reassure them that the code system was not onerous.
There was also an interesting dialogue about whether the illustrative examples in the PD of when a reporter might need to be excluded should be changed. The judicial view was that they should not, because the bar for exclusion was set intentionally high – in the words of Peel J, ‘the idea being there must be exceptional circumstances to say you must leave now’.
Somewhat disquietingly, some time was spent dealing with a problem identified by Lord Justice Baker. His eagle eyes had spotted that the draft PD contained a very out of date reference to the Family Proceedings Rules 1991, which were replaced in 2010 with the Family Procedure Rules. We have checked our Red Book (family law bible) and PD27B hasn’t in fact referred to the 1991 rules since (unsurprisingly) 2010. However, the civil servants at the meeting told the committee that they had taken the PD for amendment ‘from the website’ and that the source must have been out of date. It appears that ‘the website’ is the justice.gov.uk (though at the time of writing this post, it seems correct) as that is the only website we know of where the PDs are officially published. It might be that there is some other internal website being referred to – but even so, it is worrying if civil servants are relying on outdated versions of documents.
We haven’t seen either the drafts put before the committee or the final version of the rules or PD but will publish links when they are available.
Other news from the meeting
What else did we find out from the meeting?
Financial Remedies Reporting Pilot
Mr Justice Peel attended the meeting to give an update to the committee about his version of the Reporting Pilot in the FRC. It was going well albeit little used, with only three Transparency Orders made under the pilot so far (in London, none in Leeds or Birmingham). The proposal was to extend the pilot for a further year from Jan 25, to probably allow all other courts to be brought in, with a view to formalising in the rules / PD in early 1926 if things have gone smoothly.
As the FRC effectively makes up its own rules without troubling the Rule Committee to make them, this was more of an update and a check in to ensure there was no concern raised by the committee than it was a request for formal approval of anything. No concerns were raised. In response to a query Peel J said there had been very little feedback and (not verbatim):
…there has been very little enthusiasm by the media. Some local courts have publicised to local media outlets but with very little interest. When has happened it was dealt with swiftly expeditiously and without difficulty. and members of the media were extremely helpful and constructive. [that is consistent with] my experience of the media in general in the RCJ.
Digital court process in FR
There were some strong words about how ‘disastrous’ the digital court process was for litigants in person in financial remedies cases (where solicitors, barristers and judges can access a portal for uploading and sharing documents but where litigants in person have to post hard copies to Hastings where they are uploaded to the portal). One member with a judicial role opined that it is ‘impossible to conduct a fair hearing in those circumstances’. He said ‘Whilst for the lawyers this works, for the LiPs it really really doesn’t work’. He agreed to the permanent roll out of the digital process on condition that a solution for LiPs was progressed, because ‘it is absolutely horrifying at the minute’. HMCTS offered reassurance that sorting this out is their ‘absolute priority’, though offered no timescales. The explanation of why the arrangements for logging in like solicitors couldn’t just be replicated was baffling – ‘we have to build a separate journey’. This appeared to relate to the platforms used for logins, and the fact that someone somewhere in the past had decided litigants in person had to go via gov.uk. Nobody explained why that decision couldn’t be reviewed.
The chair, Mr Justice Keehan, echoed what had been said about ‘the litigant in person experience in FR cases. There is an enormous disadvantage in not being able to access the online system’.
Bundles
There has been a public consultation on bundles and how they should be produced. Boring but important. In some areas there had been unanimity of view but in others the responses gave rise to more challenging issues (which we assume means that the responses were polarised or perhaps that different solutions were proposed for different types of case / scenario). There is a committee already set up to look at and review the responses. There were some interesting discussions around bundles in cases without lawyers and before magistrates. The question of very poorly prepared bundles created by HMCTS in cases without lawyers was raised, and the difficulties delivering them to magistrates (who we don’t think have their own judicial hardware). A Legal Adviser and representative of the Justices Clerks society flagged that in non-digital cases or where LiPs can’t access a digital platform there would be an issue.
The response circulated in the chat (from someone at HMCTS or a civil servant from MoJ) was:
The private law digital service will be able to produce bundles for magistrates’ use. And even if a litigant in person completes a paper application it will be scanned into the digital service so that a bundle can be produced.
We await with interest how all this is resolved. We weren’t really any clearer by the end of this segment how it would be, but clearly this is a work in progress and the subcommittee / working group will have its work cut out.
Law commission – contempt of court
Professor Penny Lewis gave an interesting presentation about contempt of court and the current Law Commission consultation. There is a useful summary document here (Well worth having the link to as the main consultation is 500 pages long). The consultation is now open until 29 November.
What didn’t we find out? And how ‘open’ was the open meeting?
There was a very brisk run through of various ongoing projects at the start of the meeting, by reference to the ‘priorities table’ that the committee members had in front of them. This was difficult to follow because we didn’t have the priorities table or papers – and it was very fast.
We were able to work out that
- Jade’s Law (relating to PR for parents who kill the other parent) is being progressed and a similar provision relating to child sex offenders is now back in draft legislation before Parliament. We weren’t quite sure where things had got to on Jade’s Law though.
- the Pathfinder pilot practice direction is being extended as it was due to expire, and some changes are being made to the rules but we couldn’t work out what.
Other draft rule changes were discussed but we couldn’t follow without any reference point.
There has been some sort of pilot of checklists to do with experts – we think to be used by advocates at advocates meetings. We understood that it was not being proceeded with because it was felt to increase workload. But we didn’t really understand the discussion on this item because we don’t know what the pilot was about in the first place and had no papers.
We had hoped that the issue of unregulated experts would be on the agenda for discussion as it has been on and off since the spring, but in fact it was not. Because the deadline for asking questions had fallen by the time we saw the agenda, we were unable to ask a question about this. The open meetings are quite closely managed and you can only ask questions in advance by a particular deadline. In response a scripted answer is read out by a committee member. There are good reasons for some management of this -for example one litigant attending had evidently posed a question in writing, but when asked to read out his question before delivery of the scripted answer he went off piste, because he had to be stopped from talking about his own case, and the scripted answer when delivered included responses to things he hadn’t actually said. This scripted approach is somewhat off-putting and does not feel especially welcoming. In addition, a number of questioners were wrong footed by being asked to read out their question, but having had no advance warning of this, did not have their question to hand as they had submitted it weeks ago and had obviously not been forewarned of the process.
We have emailed the FPRC to make some constructive suggestions about how the process might be made more meaningfully transparent, by helping attendees to understand what is being discussed. In particular we have asked if thought can be given to sharing at least some of the papers, so we can follow what is being said (as happens when reporters attend court), and allowing questions to be posed after the agenda is circulated.