Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the November 2018 issue, [2018] Fam Law 1465.
THE NEW PILOT SCHEME FROM OCTOBER 2018
We are very pleased with the outcome of our application to the Family Procedure Rules Committee, some months ago, to allow legal bloggers similar rights of access to attend family court hearings as have been provided to accredited representatives of the media since 2009. In September 2018, a new pilot scheme was announced, whereby lawyers can apply to be allowed into a hearing that is being held in private, for public educational purposes (see October [2018] Fam Law 1331).
The pilot runs for nine months from 1 October until 30 June 2019. It allows practising lawyers, academic lawyers and those under the umbrella of an educational charity, on application, into family court proceedings. The Transparency Project falls into the third group. We promptly submitted our details to the President of the Family Division, as required, and have received notification that we are on the authorised list of educational charities that can send lawyers to court for this purpose.
There are some slight differences between this arrangement and that for accredited media representatives in the existing Family Procedure Rules. Lawyers need to provide proof of their eligibility under the scheme on the day of the hearing (as the press do by showing their Press Card in the Family Court) and also complete a form which amounts to an undertaking not to breach privacy rules. This is similar to public hearings in the Court of Protection, where people attending are asked to sign to show they understand they must not identify the person subject to the proceedings. The difference is, of course, is that the Court of Protection now holds most hearings in public, so s 12 of the Administration of Justice Act 1960 does not apply. Section 12 continues to apply in the Family Court to hearings relating to children that are still normally ‘private’ even if a journalist or blogger is there. Additionally, the lawyer in the new pilot must confirm that they are not acting as a lawyer with an interest in the case, but attending for public legal educational, journalistic or research purposes.
WHAT CAN LEGAL BLOGGING OFFER?
The role of journalists in holding the justice system to account is crucial, but we think that lawyers can provide a greater technical understanding and a different perspective, and can choose what to write about without being constrained by the commercial considerations that drive the highly selective reporting of family justice by the media. We already follow this practice, with our blog posts based on judgments on BAILII taking a more educational approach than many that are picked up by the mainstream media. (See, for example, our explanation of the ‘Bob the Builder’ case in August [2018] Fam Law 1062).
We acknowledge that lawyers are not free of bias and their views about family justice will inevitably be reflected in their writing. However, legal blog posts would be dull if they were shorn of all opinions; the most effective include critical analysis and encourage debate. Styles adopted by legal bloggers may vary according to the type of audience they are trying to reach. We are not expecting publications under the pilot to necessarily resemble traditional neutral law reporting, but we hope they will offer more scope than is currently available.
Despite the best efforts of the recent President of the Family Division, Sir James Munby, to tackle the media and public perception of ‘secret courts’ with his guidance in January 2014, we know that only a fraction of cases ever get to BAILII, and give only a partial picture of the work of the family courts (J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments, Cardiff University/Nuffield Foundation, 2017)
We put forward a rationale to the FPR Committee for this very specific relaxation of the rules on attendance – that lawyers will understand and respect the privacy rules pertaining to family court matters and present a low risk of irresponsible information sharing. The closed nature of most family court proceedings is an exception to the open justice principle, although justified. Commentators who have particular legal knowledge of the rules, and awareness of professional and disciplinary consequences that would flow from a contempt of court on any breach of privacy, are well placed to be trusted to be present in court. Our argument was that a bar on attendance by legal bloggers was not a necessary and proportionate interference with the open justice principle. The pilot will put legal bloggers in no better position than professional journalists – all the usual reporting restrictions will apply, unless and until the court in the individual case says otherwise. Publication of details of family court proceedings can still only be allowed on application, under s 12 Administration of Justice Act 1960.
GET INVOLVED
An application by an educational charity must be made at least four weeks in advance of the first hearing to which the charity intends to send persons to court but other lawyers do not need to give notice. The President’s office maintains a list of all charities authorised to attend court for this purpose. All lawyers (in the three groups) need to take along picture identification, and those working with a higher education institution or charity also need to show official confirmation from the organisation. As noted above, The Transparency Project is now authorised under the pilot, so if any lawyers reading this column would like to blog for us, please get in touch via info@transparencyproject.org.uk with details of your qualifications and areas of interest.
We will be working over the coming months to ensure that we are able to fully support and participate in the pilot and to report back on how it is going, through our Family Court Reporting Watch project. It will be interesting to monitor how often this new access is used, how often reporting restrictions are lifted to allow some level of publication, and whether this has any impact on the behaviour of journalists or on the allegations of secrecy that we so often hear levelled against the family justice system. We have designed a survey for lawyers attending court under the pilot in any of the three categories, as we are not aware of any other proposed evaluation of the impact.
Details of the pilot and survey are set out and being kept updated on a new dedicated page on The Transparency Project website (www.transparencyproject.org.uk/legalbloggers).