Nobody who has ever read a newspaper or visited twitter would be expecting new media coverage of the family court, made possible by the ‘reporting pilot’, to be in glowing terms. However, the pilot isn’t a PR exercise, and for transparency to mean anything, we have to take the rough with the smooth. Public debate involves exchanges of opinion; some of those opinions are bound to be uncomfortable, and maybe even wrong. The judges and lawyers responsible for the pilot have, in their training session, been drumming the need to leave editorial decisions to the editors. Rightly so.
The Daily Mail was the first news outlet to offer something substantive and potentially uncomfortable to family court professionals. On 15 February, some 2 weeks into the pilot, they published a long piece that surveyed what they had seen so far in the three courts their reporters had visited. Here are the headline and straplines:
- Daily Mail peels back curtain behind custody decisions as part of landmark pilot
- The new project allows Press to report Family Court proceedings for first time
There are many points we could carp about in this piece of journalism, from the ‘custody klaxon’ headline and the location of the piece in the ‘Femail’ section of the paper, to some of the content. But reading all the way through what is quite a wide piece, you will reach some interesting, important and rightly uncomfortable nuggets of information within it – matters of public interest.
Some observations made about transparency are broadly in keeping with our own. The piece rightly highlights the difficulty obtaining copies of transparency orders – we too had a mixed experience with this.
Important too is the problem of court lists being less than informative:
In Cardiff, hearings held in 17 courtrooms in the city’s Civil Justice Centre are listed on a noticeboard in the lobby, with cases named only as ‘A Minor’, so there is no way to know in advance if a case will be newsworthy.
This problem could stymie the pilot because it makes it so much harder to justify sending a reporter to court.
The most interesting elements of the piece were the observational snippets – the stuff you don’t get unless you attend court and watch real people in real time, such as the reactions of professionals to the new arrangements: We were intrigued to read that in one case the police had objected to a transparency order being made, before conceding that in fact they had no basis for doing so, though it’s difficult to know quite what to make of that without further information. It was encouraging that most of the legal professionals quoted were positive about the pilot, or at least curious about the presence of reporters (which again matches our own experience). The report says some professionals were ‘suspicious’ but no suspicious quotes are actually offered up.
Mail reporters made some effort too to capture the emotional responses of parents in the context of a real time hearing – parents calling our their comments from the back of court, a mother wiping away a tear. Those human aspects of what actually happens in court every day are not captured when journalists simply select an ‘angle’ from a published judgment and fashion a newsworthy item out of it.
Being present at a hearing, the reporters are able to paint a picture of the process, the sorts of traumatic circumstances and complicated lives that the court is trying to grapple with, and the human impact. The Mail don’t try to paint an entirely negative picture. While they are critical of the process they observe, particularly on transparency, they also acknowledge one interim hearing as
a reassuring example of due process being applied and a reminder of the essential work these courts carry out to help families stay together.
Many professionals working in the family court would no doubt query whether this example is of a minority of cases, in contrast to others where the court is
reduced to finding ramshackle solutions to paper over deeper problems
It cannot be denied that the picture is mixed, and the more the media see, the better an evidence base they will have on which to form a view as to whether the majority of cases are well and fairly run. The sceptic will say it suits the media better to ‘see’ dysfunction and injustice because that makes a better story. Time will tell whether or not the media paint a balanced picture, but much of what is sketched out in this piece is fair comment. In order to present this picture, the Mail have invested the time of at least 3 reporters over a number of days and navigated multiple transparency orders. This is not easy work.
There is a vignette from Leeds, that sounds like a poor description of a removal hearing. This is described as an attempt to ‘take’ children ‘into custody’ as a result of some pretty shocking sounding neglect. Presumably this was an attempt to describe removal into foster care under an emergency protection or interim care order, rather than imprisonment. This is not just us being pedantic about terminology. ‘Custody’ is not technically the correct term to refer to disputes about where children should live, but ultimately it’s a term that the media use because the public know what they mean. It doesn’t really matter that it irritates lawyers it’s the wrong word. But here the use of ‘custody’ IS wrong because it’s conflating child protection with punishment and imprisonment. Nowhere is it made clear that social workers cannot simply ‘take’ children into foster care (let alone prison) without the approval of the court, following a hearing that the parents are entitled to participate in and where they will get free legal aid. The grim reality and the to and fro of an interim removal hearing that is shakily sketched is just about decipherable to professionals working in this area, but it won’t be to the wider public. We’ve written about this issue before – it’s really important that when the media cover these exercises of state power they make clear that there is a legal process, so that people are not unduly alarmed.
That last vignette was rather less successful than the earlier examples we’ve given. But it is important to set out our grumbles about this piece as well as our praise. Not least because at the moment, an evaluation of the pilot is still hanging in the balance. We are told it is going to happen, but it isn’t happening yet.
We can’t help but notice the Mail claiming the credit for this pilot, while simultaneously minimising the achievement and culture shift it represents (or at least initiates). The story refers to their ‘campaign’, implying a causal link with the pilot. As far as we are aware, the Mail did not make submissions to the President’s Transparency Review, and were not involved in the Transparency Implementation Group. A number of mainstream media outlets have broken stories and run headlines about the secret family court or miscarriages of justice that have happened behind its doors, which has undoubtedly contributed to a climate of dissatisfaction and mistrust – but only a handful of committed independent journalists, along with representatives from certain broadcast media and the Press Association have put in the hard graft, contributing substantively to getting the powers-that-be to accept that this pilot was necessary. The Mail does not give proper credit to those members of the media who genuinely deserve it, although it is not the only newspaper that tends to credit its own ‘campaigns’ as having singlehandedly precipitated the end of judicial secrecy.
We agree that transparency is taking too long to be achieved and it is far from a box ticked. However, the Mail is not entirely fair in its reporting of the early weeks of the pilot. In complaining about some of the difficulties encountered and frustrating limitations of the first two weeks of the scheme, it has not explained what the scope of the pilot actually was. The journalists complain that they were unable to access various cases, as if the pilot was somehow not living up to expectations. However, the majority of the cases the Mail were excluded from were either ‘private law’ cases, or cases before Magistrates – which are excluded from the pilot for the first few weeks. This is a temporary measure, just until the pilot is up and running, as any reporter who attended the training or read the scheme would know. As legal bloggers, we also found it frustrating not to be able to report on such hearings when attending Cardiff, because there were few cases that fell within the (initially limited) scope of the pilot and were available to report. But this pilot is (as the Mail acknowledges) a major culture shift – and it needs time to bed in. The pilot was always going to be launched incrementally.
For an insight into why there was (arguably) a need to go softly in order to go at all, take a look at this illuminating (but quite well hidden) report published by one of the TIG subgroups which gives a flavour of how demoralised judges are, and how difficult it may be to get them on board the transparency bandwagon, when they are scarcely heads above water. There has been absolute determination to get these reforms through, and though they may seem small on the outside, there has been a TARDIS like amount of work going on behind the doors, work that we can only regret is not more easily visible to the public.
The Mail reporters also complain that they were not allowed to report on a case in Cardiff until a child has completed medical treatment. That is a reference to a case that we considered attending and in respect of which we were provided with the transparency order – having seen that transparency order (which gives more detail than we can report) we were satisfied there was a good and specific reason connected to the welfare of the child at a particularly sensitive time, for not allowing the case to be reported – for now. We think it is unfair to hold this up as an example of failure.
The Mail also complain that:
We are not allowed to report on a case in the Cardiff court, for example, because a judge says the proceedings have already started and ‘it would not be fair’ on parties involved.
Yet cases often drag on for months, potentially blocking thousands of ongoing cases from being scrutinised in the pilot.
We don’t know what case this relates to, but all the hearings we considered attending or actually attended at the Family Court in Cardiff were cases that had already started, and we were allowed to report them – including one attended by the Mail reporter credited in the article. The permission to report that case was subject only to very limited restrictions around anonymity, yet that case is entirely absent from the article (our blog post about that hearing is still a work in progress). That’s an editorial decision for the Mail of course, but the exclusion creates a distorted perspective in the context of an editorial line that transparency orders are ‘more likely to be denied than granted’. We also don’t think the reference to ‘17 courtrooms in Cardiff’ here was very helpful because only a few of those 17 courtrooms deal with family cases. The article gives an impression that there were a vast number of cases being heard, only a handful of which could be reported. In fact Cardiff simply did not have many cases that week which fell within the initially more restricted scope of the pilot. In future weeks there will be many more cases that could be captured.
What the Mail don’t mention is that almost all of the hearings not yet in the pilot are still open to journalists to attend and observe under the ordinary family court rules that have been in place since 2009 – and if they had made the effort to do so when in the building they could have applied to report. They just didn’t try to do so. Almost every time we have attended a hearing in such a case in the past our requests for permission to report have been granted. We didn’t take this route on the first week in question because in fact we identified a case that was in the pilot that we decided to attend instead – this was when we found ourselves unexpectedly sitting next to a Mail reporter.
From the examples given and our own direct experience, there is plainly no general refusal to allow reporting of cases simply because the case was started before the beginning of February, or that ‘thousands’ of cases are being blocked from scrutiny. And notably, even before the pilot started, Mr Justice Poole in Leeds decided that a particularly complex case due to span several weeks in the early days of the pilot should be brought into the scheme early because that was a good thing to do. Although there are (and have to be) substantial reporting restrictions on that case because of the need to avoid prejudicing ongoing criminal investigations or any future criminal trials, other media outlets attended and reported on that groundbreaking approach to a serious case.
It’s surprising that the Mail make this complaint:
Even then, transparency orders aren’t granted if reporting could jeopardise criminal proceedings — which counts out multiple cases across the three courts during the week.
This is standard practice and basic procedure in any case of pending criminal proceedings – whether or not reporting relates to family proceedings, no media outlet can publish material that might jeopardise a criminal trial. There is nothing specially secretive about the family court on this front, and the criticism that this is about ‘hushing up’ is unfair.
The Mail concludes that
A pilot promising a great deal has yet to prove it is capable of delivering open justice.
We would reserve judgment for a little longer. In a few weeks’ time, a vast number of additional cases will fall into the scope of the pilot and the options for observing and reporting will vastly widen. So too will the familiarity of professionals and judges come up to temperature, meaning that things should run more smoothly and over-cautious responses reduce. If the media could strive especially hard to be fair and balanced, that would go a long way to further alleviating anxiety and paving the way for a successful pilot.
Many individual journalists and news organisations have invested a great deal of time and energy in this pilot. Everyone has a responsibility to collaborate on making it a success. That doesn’t mean the press have to say everything is hunky-dory when it’s not, and it doesn’t mean they can’t select a particular editorial line. But balance is important – both the watched and the watchdogs must behave responsibly.
Feature pic – Scales by Hittie Evie on Flickr – thanks!
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