As we noted in ‘Transparency Project News’ in July [2017] Fam Law 778, August 2017 is the third anniversary of Sir James Munby’s Transparency – the next steps consultation (still available on the judiciary website). We also noted that those responses that were publicly available had been gathered on The Transparency Project website. The responses were polarised and we know that since then the President has had many other pressing issues on his desk: court modernisation, vulnerable and child witnesses, cross examination by litigants in person in abuse cases, the inexorable rise of the judicial workload, and more. In speeches and ‘Views’ the President has moved from talking about a looming crisis (in View 15) to an actual crisis.
NEW CONSULTATION BY THE PRESIDENT ON TRANSPARENCY
Despite all the above, the President has said that his intention is to issue a further consultation on transparency after the summer break. What it will say is anyone’s guess – but it is likely in some way to respond to concerns raised by Dr Julia Brophy and the Association of Lawyers for Children in their publications about the potential identification of children and in the Cardiff University research about the inconsistent application of the guidance on publication of judgments. On one level it is inevitable that, in these difficult times, the President’s desire to progress on transparency reform may have been pushed down the agenda. But I want to argue against any de-prioritisation of transparency. It is as pressing an issue as it ever was and recent events serve to remind us why.
WIDER ISSUES OF TRANSPARENCY AND TRUST
Mr Justice Francis has finally dealt with the exceptionally sad and difficult case of Charlie Gard in the face of protesters, international interventions and much Twitter wisdom. In another part of London, Sir Martin Moore-Bick (formerly Lord Justice) is under fire for not being ‘one of us’, and therefore (it is said) to be incapable of properly dealing with the Grenfell Tower inquiry. Views legitimately differ about the role of the state in the Gard case and the Grenfell disaster and that is OK. But it is worrying that large portions of the public do not seem to recognise the value of the analytical skills and calm objectivity that a judge can bring to a complex and emotionally charged dispute. What the public demand, it sometimes seems, is someone who will be guaranteed to agree with them. As I write, there are reports of death threats to staff at Great Ormond Street Hospital (statement issued by GOSH on 22 July 2017). Most people (including Charlie’s parents) would condemn such behaviour but it feels as if there is an ever more vocal minority who do not trust or tolerate the law as a mechanism for the resolution of either public or private disputes.
TRANSPARENCY AND TRUST IN FAMILY JUSTICE
This phenomenon is wider than the extraordinary scenarios like Grenfell and Gard. Speaking of the crisis caused by the upward climb in care statistics, Anthony Douglas (Chief Executive of Cafcass) identifies a number of contributing factors. Along with the familiar suspects of: demographics; case law on misuse of s 20 Children Act 1989; the Baby P effect; and Re B-S, is the decline in trust by the public of the state and vice versa. Meanwhile, social workers talk of an epidemic of disguised compliance and feel driven to intervene, fearful of another scandal such as the death of Peter Connelly. Families are warned of an epidemic of lying, venal social workers determined to take their children, especially their babies, and are frightened into closing their doors and their mouths. Trust breaks down when people misunderstand one another, when they feel nobody is listening and when they stop communicating.At The Transparency Project, we see that chronic breakdown of trust between state and individual. And although some of it is structural, much of it is borne of misunderstanding, misinformation or assumptions made in an information vacuum. We could do so much better. For example, our work on adoption targets attempted to inject some clear, factual information into public debate about the deeply and widely held belief that targets are the tail that is wagging the adoption dog. It had limited success because we could not get unambiguous answers: see ‘English councils confirm they set targets for the number of children to be adopted’ at http://www.transparencyproject.org.uk/english-councils-confirm-they-set-targets-for-the-number-of-children-to-be-adopted/, and ‘Adoption targets: when we said it was complicated, we were oversimplifying – it’s REALLY complicated…’ at http://www.transparencyproject.org.uk/adoption-targets-when-we-said-it-was-complicated-we-were-oversimplifying-its-really-complicated/The recent launch by the Solicitor General of a Public Legal Education Panel (Attorney General’s Office, 17 July 2017) is not a moment too soon, and we hope that its ambition will be broad enough to encompass family law and the interventions of the state in family life.It may seem that the examples of Grenfell and Gard tell us that some people do not want to be informed but simply demand everyone agrees with them. That is sadly so in some instances but there is a risk, too, that in the melee, legitimate grievances and ideas for reform will get lost. Reactions to our explanatory blog posts about Charlie’s case tell us that some readers welcome good, neutral information about what the State (through the court) is doing and why – and this sort of material can change preconceptions or views derived from limited information or fake news. (To read blog posts The Transparency Project have written about the Gard case see: http://www.transparencyproject.org.uk/?s=gard)More importantly, good quality public information can form a sound base for genuine debate so that where things do not work well we can have the best chance of improving things for the public benefit. It may be dis-spiriting that attempts at calm explanation have not dispelled the wilful ignorance around the Gard case, and the media excesses that his case has generated may give us pause for thought about anonymity – but does it mean we should abandon attempts to explain the law and court process? As Barbara Rich set out in her post on our blog on 23 July, ‘Kindertotenlieder and the limits of transparency’, the answer must be ‘No’.
If Anthony Douglas is right about the trust problem being even a small part of the escalation in the number of public law cases, it would be unwise in the extreme to abandon attempts at transparency now. Quite apart from the moral, democratic accountability arguments about doing justice publicly, it makes sense to prioritise transparency in order to increase the numbers of the families who are open to accepting help and able to listen to advice, and in order to reduce the burden on the courts arising from those who are not. This is a long-term project, with no immediate pay out, but the same must surely be true of any attempts to tackle the other driving factors behind the statistics.
Those of us working in the family justice system owe it to families and to the public to explain what we are doing and why – through publication of information and judgments, and through broader public legal education projects. And we owe it to the public to show them how well or badly we are doing our thing – when we do a job with skill, attention to detail and humanity we should show it openly (as in the Gard case). And when we fail because the burden of increased workload on plateauing resources has come to crunch point (or for any other reason), we should show that openly too. After all, if the President of the Family Division is telling the world there is a crisis of the ex-looming variety he had better bring his evidence to the table so that those who make decisions about resourcing the justice system can do so on a properly informed basis. And if we want to rebuild public trust we must continue striving to find that difficult balance between meaningful privacy for families and the corrosive appearance of secrecy. As the President put it, before his guidance had been issued, in Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523:
‘The family lawyer’s reaction to complaints of ‘secret justice’ tends to be that the charge is unfair, that it confuses a system which is private with one which is secret. This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in…the ‘competition of the market’… The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts.’
Family Law publishes a regular blog series by The Transparency Project. This blog originally appeared in the September 2017 issue ([2017] Fam Law 1048).
