This blog post originally appeared as the Transparency Project’s monthly column in the August 2019 issue of Family Law [2019] Fam Law 959.
As we write this month’s column we are awaiting news of whether the six month long legal blogging pilot that has been running under PD 36J will be extended or not. We hope by the time you pick up your copy of Family Law it will have been extended, even if only for the period of evaluation. But in any event, now seems like a good time to review what use we’ve been able to make of the pilot and what potential and problems it may bring if extended, having tested the waters.
We’ve approached the scheme with a mix of excitement and trepidation. As lawyers who represent both children and parents in highly sensitive matters we fully appreciate that the stakes are high when it comes to privacy. And the recent example of the Court of Protection case in which mainstream and social media reports concerning Hayden J’s interlocutory and decontextualised remarks about ‘a man’s right to have sex with his wife’ had a direct impact on the ability of the blameless husband to engage in proceedings concerning his incapacitous wife (See Re NB (Consent to sex) [2019] EWCOP 17). We’ve been saying for years that low levels of trust and confidence in the Family Court, lawyers and social workers directly impact on engagement of parents this is a reminder that the quality of information that swirls around in the public domain really matters.
To the best of our knowledge the only people to attend courts under PD 36J have been those connected with the Transparency Project and between us we have attended approximately a dozen hearings. The comparatively low number of attendances is not an indication of failure this was always anticipated. Whilst we’d like to have attended more often, the reality is that those who are qualified to attend under the scheme will usually have day jobs, and often clients whose cases must be prioritised. And for those of us who are self-employed there is a cost implication. We think the litmus test of a scheme like this is whether or not the opportunity can be provided without doing harm rather than counting the number of attendances or assessing the editorial merit of the resulting blog posts.
Whilst the sample size for the purposes of evaluation is small, on every occasion we’ve asked to attend court so far we’ve been permitted access without objection from the court or parties. And on every occasion we’ve found something useful or interesting (we think) to write about the experience. This is so even though many of the cases we attended were unremarkable legally, or would not have obviously generated a headline that would have been attractive to the mainstream media. And whilst we won’t be winning any Pulitzer prizes, nobody has raised any concern with what we have written or how we have conducted ourselves.
Our legal blog posts have demonstrated that whilst the constraints imposed by s97 Children Act 1989, s12 Administration of Justice Act 1960 and the FPR are stringent and broad, they do not represent a blanket ban on reporting anything about children cases. What those automatic restraints do mean is that real thought needs to be given to what can lawfully and appropriately be included in a blog post, and when it is necessary and appropriate to seek permission to publish something that is or might be restricted. We’ve sought permission to publish the details of things said during a hearing on two occasions. On both occasions our request was granted with the agreement of the parties.
All our blog posts under the pilot can be found at www.transparencyproject.org.uk/legalbloggers.
Our pilot posts to date have been largely about the experience of attending as a legal blogger, and the responses we’ve received and about conduct of the hearings we’ve observed. We’ve found it surprisingly illuminating to experience the familiar courtroom from a different perspective, and to watch the interactions that an advocate is often oblivious to whilst on her feet. We’ve been given a greater insight into the challenges facing journalists when they attend hearings with a view to reporting the uncertainty of whether they will leave court with any copy, the worry about hostile reactions to their attendance, the sense of disempowerment at the back of court without rights of audience, and the uncertainty about what the limits of permissible reporting are and when and how to make an enquiry about those issues. We’ve been able to use these early court visits to identify and work through practical issues that have potential to cause disruption or anxiety to litigants and lawyers when and how to alert parties to your attendance, when and how to clarify what can be reported, how to deal with sequential hearings and reserved judgments . . .
So what of the future?
As lawyers steeped in the culture of the family court we are probably temperamentally cautious about causing upset and disruption to those involved in cases. We know the pressure lawyers are under, and we understand only too well the wide-ranging life crises many litigants will be going through, alongside the trauma and harm many of their children will be dealing with. We have been really careful to minimise any stress and disruption engendered by our attendance, and decided early on to avoid pressing a request to attend hearings where that was likely to be contentious and where we had no particular knowledge or interest in the case, though we would in future potentially pursue our right to attend in a case with a particular public interest or where the media were in attendance. As it happens though, we have happened upon cases where there has been no real contention above short lived professional unease and surprise and we have formed the preliminary view that if sensitively handled and properly explained, objections to the attendance of bloggers is unlikely to be a regular occurrence if the scheme continues, though there will of course be cases where objection is rightly raised due to the particular circumstances of the case. In a recent case we attended we were able through direct dialogue with the mother in the case publish a post with her express consent, having offered her prior approval, something that would be anathema to a journalist. Our ethos has been to attempt to engage with the parties and professionals and to work consensually where possible (no doubt that is also often the ethos of a journalist but we can more easily walk away from an attendance without a blog post to publish).
We’ve managed only to deal with public law cases or private law children cases in which all parties were represented. We’d like to explore the potential for attending hearings in private law children (and financial remedy) cases, mindful of the fact that whilst there is significant public disquiet about the way in which family courts deal with private law disputes involving domestic abuse allegations, which makes it particularly important that ways are found to report such cases, there are also particular challenges to attending and reporting such cases, not least the high prevalence of litigants in person and the often conflictual nature of such disputes.
We would like, if the scheme continues, to rerun our training workshops for lawyers. Our workshops have been informed through the valuable experience offered over this last six months, and through gentle trial and error, discussion and feedback about what works and what doesn’t work. Our impression so far has been that many lawyers who are interested in the scheme are nervous themselves about attending court and observing their colleagues. Likewise, in many of the cases we’ve attended lawyers representing the parties in the case have been ill prepared or unfamiliar with not only the scheme but the basic reporting restrictions that are applicable to this sort of work. Whilst we don’t envisage a scenario where there will be a legal blogger in every hearing it will always be a minority of cases that will ever encounter one we do think that there is probably a training need for professionals so that they can deal with the attendance of journalists or legal bloggers, and any applications they might make.
The recently published transcript of the hearing in the case of Person A v Southampton Local Authority (hearing on 19 October 2018) (see here) at which journalists pursued an oral application to relax reporting restrictions, which had been notified in advance, demonstrates that training need. The reporting restriction then made was successfully appealed by journalist and TP member Louise Tickle, and led to the issuing of draft guidance to deal with just this sort of scenario. Whilst with the luxury of hindsight that transcript does not make for happy reading, we doubt it is atypical. We would like to support the legal profession to better assist the court and their clients in future.
We are also putting the finishing touches to our response to the President’s consultation on his draft guidelines concerning applications by the press (or bloggers) to relax reporting restrictions. We welcome those guidelines and will have some suggestions of our own to throw into the mix, and our response document will be available on our website in due course. If you or your organisation have submitted a response that you are willing for us to publish or link to we’d be grateful if you could let us know. We’d like to gather as many as we can in one place, whatever the views contained within them.
Finally, we’d like in future to be able to pay travel expenses for those willing to attend court under the scheme. Whilst we think an important distinction between legal bloggers and journalists is the voluntariness of the scheme and the corresponding absence of any commercial pressure exercised through a commissioning editor or employer, we do think it would help encourage attendance if we could at least meet those costs.
We’ve now written over 400 posts under our Family Court Reporting Watch Project banner and we’ve very much like to ensure we can continue to explain family court judgments, call out and correct poor media reporting and help to create a more balanced picture of the work of family courts so that public trust and confidence is not corroded on a false basis and so that systemic weaknesses or individual failures can be debated on an informed basis. We rely upon a team of volunteers to write our posts, but we do have ongoing administrative costs. Our current grant funding is due to run out in October, so if you value the work we do please consider making a small donation towards our running costs. You can make a giftaid donation at www.justgiving.com/transparencyproject.
Don’t forget that you can subscribe to our weekly updates via our home page, and you can follow us on twitter at @seethrujustice.
The Transparency Project Team
Feature pic : Pic courtesy of Jakub T Jankiwicz (Creative commons – Flickr – thanks!)