Welcome to this month’s Roundup, where we correct, clarify and comment on media reports of family court cases, explain and comment on published family court judgments and highlight other transparency news
MEDIA COVERAGE OF FAMILY COURT MATTERS
The Times and the Guardian – Reported new regulations in force in England temporarily dispensing with certain duties councils owe to children in care from 24 April 2020. See Vulnerable children’s services facing ‘outrageous assault’. Jack Harrison focused minds on some of the scandals and child deaths behind the development of those duties. He explained the (confusingly drafted) regulations; and flagged sector responses in The Adoption and Children (Coronavirus) (Amendment) Regulations 2020, and a little bit of history. See also Ministers are using coronavirus as an excuse to erode child protection in the Guardian, with updates on legal action, House of Lords responses, and the opposition leader’s motion to annul:
BBC Radio 4 – Sanchia Berg reported the Nuffield FJO rapid review findings on family court remote hearings so far, with an interview from the President. Family Justice in the Pandemic is still available here (See also Transparency News below):
Linkless
The Times, Guardian and Mail – The Times reported a Court of Appeal judgment in a private law dispute involving a cult, without making clear the source was a free judgment published on BAILII, or linking readers to it. The Guardian and Mail reported the judgment from a decision that dying at home, not in a care home, was in a woman’s best interests, giving readers no option to find the judgment for themselves. (See here and here). The Guardian (among others) reported the judgment from the Court of Appeal decision that transgender man, Freddy McConnell must go down as ‘mother’ on the birth certificate of his baby without linking to it:
Linktastic
The Guardian – Linked online readers to an array of primary sources from Carolyne Willow’s piece, and to the first instance decision judgment from their report, Couple who opposed council vaccinating their child lose appeal:
NEWLY PUBLISHED CASES
Remote Hearings
P (A Child: Remote Hearing) (Rev 3) – Jack Harrison explained the first of a series of important judgments from the President on remote hearings for the family court. See P (A Child: Remote Hearing) (Rev 3) [2020] EWFC 32: When is remote justice not justice?:
Re A (Children) (Remote Hearing: Care and Placement Orders) and Re B (Children). Then Re Q and A Local Authority v Mother & Others – Lucy Reed then explained two further Court of Appeal judgments from the President on remote hearings, in Alphabet Soup. Plus two further relevant decisions in The magic soup stone strikes again (more new authorities about remote hearings). (See also Transparency News below for the President’s announcement (‘View’) and research findings from the NFJ Observatory on remote hearings):
Other judgments
RC v JC [2020] – Polly Morgan updated her post for the judgment from a February High Court decision to compensate a wife for relationship generated disadvantage, reported by the Guardian and others at the time. See Compensation on divorce – don’t get (too) excited NOW UPDATED:
S (A Child), Re [2020] EWFC B17 (07 May 2020); and A Local Authority v The Mother & Ors [2020] EWFC 38 (Fam) (11 May 2020) and EWHC 1162 (Fam) (11 May 2020) – Lucy Reed discussed decisions to name and not name local authorities from recent judgments in To name or not to name – that is the question:
McConnell & Anor, R (On the Application Of) v The Registrar General for England and Wales (29 April 2020) – Emma Nottingham explained the President’s judgment from the Court of Appeal decision that Freddy McConell (a transgender man) could only be registered as ‘mother’ on his child’s birth certificate. An appeal to the Supreme Court is expected:
Re Z (A Child : committal proceeding) (Rev 1) – Malvika Jaganmohan updated her original post upon re-publication of a judgment corrected to name a man made subject to a committal order alongside judicial acknowledgment of error:
Re A (A Child : Female Genital Mutilation: Asylum) (Rev 1) – The President published a judgment from January 2020 decisions to make FGMPOs despite removal directions from the Home Office and noted the inordinate delay that preceded the handing down of this judgment…caused by the pressure of other work in the intervening period
L (Adoption: Identification of Possible Father) – Court of Appeal decision applying an earlier CA decision (A, B and C) summarised by Lucy Reed in Secret babies – non-notification of dads and extended families):
Dorset Council v E (Unregulated placement : Lack of secure placements) – HHJ Dancey orders publication of his judgment and that it be sent to the Secretary of State for Education and Children’s Commissioner to add to concern about under-resourcing of secure placements following Cobb J’s decision in Re S (Child in care: Unregulated placement) [2020] EWHC 1012 (Fam) concerning the persistent crisis in regulated residential placements for vulnerable children with complex needs.
D and E (Parent with Autism) [2020] EWFC B18 (11 May 2020) – HHJ Middleton Roy’s published judgment from a decision in the family court is of interest for it’s transparency of thinking about reasonable adjustments for a parent with autism and in deciding not to name a local authority:
IN OTHER TRANSPARENCY NEWS
The President’s Transparency Review
The President confirmed he has received 99 responses to his Transparency Review and intends to publish his final report with any recommendations and draft guidance this summer, notwithstanding the impact of Covid. See Small update from the President on his Transparency Review call for evidence. The Transparency Project published their detailed response alongside that of a multi disciplinary Workshop Group convened in February by the Transparency Project. With links also to other responses we are aware of, including those of Louise Tickle, freelance journalist and Transparency Project member; the Cardiff University research team behind 2017 Nuffield funded research findings (also TP members); and His Honour Clifford Bellamy, Transparency Project Patron. See Transparency Review Call For Evidence Closes – Our Response:
Covid arrangements
We’ve continued to update our post, Covid -19 and the Family Courts: Links in one place for new guidance and useful links:
Remote Hearings
We highlighted some inconsistencies in messages reaching practitioners in Desperately seeking guidance. Lucy Reed then flagged the Transparency Project survey findings on family court remote hearings, and our response to the Nuffield Family Justice Observatory rapid review in Justice on the altar:
See also Evidence to the Common Justice Select Committee (including on remote hearings and family justice, via Resolution) at Parliament TV and twitter; the President in Re Q (see judgments above) on waiting for rapid review research findings due imminently on remote hearings before offering any more learning; the NFJO findings published by the President alongside a View from [Remote] Chambers. (The NFJO findings say many respondents called for one short piece of clear, joined up, authoritative national guidance like a practice direction, including on when to adjourn (page 42/43). The President’s View suggests further formal guidance is under consideration but is unlikely, and explains why). See also judgments above. HMCTS have also announced research.
Celia Kitzinger followed her previous post, Remote Justice: A family perspective, with one on a better experience When Remote Justice Works, featuring a decision where the person the hearing was about (appropriately) didn’t attend:
Vulnerable litigants
Paul Magrath highlighted the interim findings of the Equality and Human Rights Commission on remote access to justice for those with cognitive impairments, mental health conditions and/or neuro-diverse conditions (with a criminal law focus). See Remote hearings and inclusive justice.
Julie Doughty discussed Re Z, also, Oxford University Hospitals NHS Foundation Trust v Z (by her litigation friend, the Official Solicitor) [2020] EWCOP 20 with respect to the public or private nature of a Court of Protection hearing when attended by the press, and vulnerable family members experiences of remote hearings. See Re Z – transparency and participation in the Court of Protection. A rapid review for the civil justice council of existing evidence on the impact of remote hearings and vulnerable groups has just closed. (See also Socially Distanced Courts for the Digitally Excluded) and Is Criminal Justice Under Lockdown Remotely Possible? from Paul Magrath:
Open Justice
Correcting judgments
Paul Magrath commented on the the way the third revision of P (A Child: Remote Hearing) (Rev 3) [2020] EWFC 32 reached the public via twitter in Publication and correction of judgments – official and unofficial sources:
The Court of Protection
Hayden J’s updating letter on the CoP’s response to the pandemic emphasised the need for Applicant’s in remote hearings (especially in serious medical treatment cases), to consider alerting the press as set out in his 31 March 2020 guidance. And his hope that considerable efforts to achieve a transparent Court of Protection are not undermined by the current compromises set out in that guidance.
Celia Kitzinger documented her progress toward consistently observing public remote hearings in the Court of Protection as a citizen. See this twitter thread on listing, public / private, and provision of information to enable observers to follow (from skeleton arguments to written, or oral summaries as Haydn J suggests at the outset of hearings):
Public confidence
New reviews of Clifford Bellamy’s book, The ‘Secret’ Family Court: fact or fiction? were published by Paul Magrath at ICLR andJoshua Rozenberg at The Critic. (Clifford is a Patron of the Transparency Project):
Live streaming
The shadow justice secretary and attorney general called for live streaming of all court cases during covid and after, for transparency, except for certain crime, family and juvenile hearings, prompting caution from some about the lack of research as yet on impacts or detailed clarity on proposed exceptions.
The future of journalism
The Transparency Project published their response to the House of Lords select committee on communications and digital. See The future of journalism: our response to the inquiry by Dr Judith Townend and Paul Magrath.
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