In fact, like the Queen, The Transparency Project has two birthdays. One in early 2014, when we emerged from the primordial online soup into a loose multi-cellular organism, and one when we were officially formed as a charity on 29 April 2015, with charitable objectives that guide and bind us in our work. That is ten years ago today.
Where were we on transparency ten years ago? How much has changed and how much work remains to be done?
While it is easy to fret about how slow progress has been, our blog posts from late 2014 and early 2015 do remind us that the landscape then was really quite different.
In the beginning…
In 2014, the President (Sir James Munby) had published his ‘Next Steps’ consultation. It followed hot on the heels of his guidance encouraging publication of judgments in the spring of that year, and proposed various ‘next steps’, including the sharing of certain key documents with the media, and a suggested pilot of holding some hearings in open court.
If you are wondering why you can’t remember what happened to that consultation, it is because the responses were so polarised the whole thing stalled. The reforms were not implemented as proposed. We rounded up those responses that had been published, and summarised a few of them – the ALC were strongly opposed to the proposals, saying that the media were guilty of inaccurate reporting, and couldn’t be trusted and that an independent inspectorate would be preferable to more transparency through reporting by the media :
“The ALC has a fundamental concern as to whether the contemporary media can act as a “watchdog” in relation to the operation of the family justice system. An independent inspectorate would be better suited to a system wide evaluation in the face of a complaint and could be made statutorily accountable in a way that in general, would be inappropriate for the media.”
Resolution, the solicitors’ association, raise similar concerns and proposals for an independent inspectorate.
As this consultation was still live the Family Justice council held its annual conference, during which the then Deputy Children’s Commissioner Sue Berelowitz asserted that opening up the family courts would lead to children killing themselves (annoyingly, the FJC has taken down the transcript of that debate, but the Daily Mail coverage of it remains, as does our blog post at the time).
We were also complaining about some inaccurate reporting at that time, and in fact it had been one of the concerns that had prompted us to get together in 2014 in the first place.
Around this time we were still contending with tendentious and inaccurate reporting by journalists like Telegraph columnist Christopher Booker (whose reporting of the Italian C-Section case a year earlier had been the final straw that galvanised us into forming the project in the first place). One example is the reporting of the ‘Missing Mum’ case, which you can read about here. What we notice from going back to read our posts about inaccurate reporting or complaints to the regulator or newspapers at the time is that our tone was more critical and snarky than we would tend to deploy now. Partly that is a result of a maturing approach on our part to how best to go about achieving the objective of better reporting, but part of it is also about a better understanding on our part of why errors creep in or important information is left out of reporting and a further part of it is that the sort of recklessly inaccurate reporting we were seeing in the early days of the Project is now, fortunately, a rarity. There is a significant amount more reporting of family courts, much of it based upon a careful reading of judgments and / or attendance at court hearings, and generally a better base level of understanding of the complexities of the cases than was evidenced by those shock headline comment or news pieces of old. The last complaint to the regulator IPSO that we made was against the Daily Express in 2019 (though it took until mid-2020 to be resolved) – it was upheld. You can read about that here.
2015 also saw us do a lot of work on the myths around forced adoption and adoption targets, using FOIs to try and dig down beneath the myths – starting here and here and ending here.
Also in 2015 we were asked by HHJ Bellamy (later our patron) to intervene and make representations about covert recording. His decision was subsequently overturned on appeal in 2016, but this appeal led to the Court of Appeal tasking the Family Justice Council with producing guidance on the topic. Remarkably, some nine years later, that guidance is STILL not published (though it is said to be imminent).
In the years that followed, the ALC and NYAS commissioned Dr Julia Brophy to carry out studies relating to the views of children about greater transparency, which were then relied upon to push back against calls for transparency. As we repeatedly highlighted, the evidence and conclusions in those reports were sometimes not accurately reported, and their scale and methodology meant there were real limitations on what could be extrapolated from them. The myths around the extent of the evidence base around children’s views persisted up until the Transparency Review.
In 2020, we hosted a facilitated workshop involving young people, journalists, judges and others which attempted to incorporate the views of children into discussion around transparency. We then fed that into our substantial response to the Transparency Review and our oral evidence to the President and his panel. Many of the points and recommendations we made in our evidence found their way into the President’s 2021 Transparency Review report and recommendations, many have been implemented. Notably, the recommendation for an Anonymisation Unit to enable more judgments to be published remains recommended but stalled, due to lack of funding.
What has TP been doing for the last 10 years?
Since 2015 we have
- continued to highlight inaccuracies, explain and contextualised media reporting,
- continued to publish our own explanations of cases and judgments,
- continued to highlight anonymisation errors in judgments to the judges publishing them, usually met with a thank you for spotting (and fortunately less frequent than they were),
- proposed the ‘legal blogging’ rule change to the Family Procedure Rule Committee, which they adopted in 2018,
- attended hearings as legal bloggers, writing about what we’ve observed, both before and since the ‘Reporting Pilot’, and latterly live blogged appeal hearings, seeking permission to access documents that journalists have access to,
- built relationships with and offered informal guidance to reporters unfamiliar with family court process, helping them understand family court process, law and lawyers, and signposting them to rules and caselaw,
- used freedom of information requests to dig behind the closed doors of the family justice system and find out what is really going on,
- been interviewed for various tv, radio and print or online media outlets to help explain context or the legal framework surrounding a case,
- spoken at Family Justice Council events, conferences, judicial training, and participated in events for journalists,
- held conferences, workshops and debates about hot topics,
- published a series of guidance notes in plain English for both parents and professionals,
- responded to consultations of relevance to transparency issues including the Transparency Review held between 2019-21,
- actively participated in the Transparency Implementation Group (TIG) since 2021.
What hasn’t happened?
- No anonymisation unit
- Anonymisation errors continue albeit at a reduced rate
- judgment publication rates haven’t massively increased as hoped for in 2014 and emphasised in 2021 by Sir James Munby and Sir Andrew McFarlane respectively.
- We’ve not attracted as many legal bloggers as we hoped for and need – we remain a handful of busy people who can’t cover all cases
- We’ve not grown financially or in terms of staffing. We had a brief flirtation with grants and staff, but found this difficult to sustain, and it diverted too much energy from core work to fundraising.
- There are still areas of the work of the family court which are largely unreported and undiscovered – financial remedy (the reporting pilot remains a pilot and uptake is low), non-molestation injunction hearings are under-reported and the law and procedure on their reporting unclarified; there is very little reporting of the work of magistrates (whose work largely remains outside the terms of the open reporting provisions until November)
- We don’t always get answers to our FOIs. We did a substantial amount of work on the Cafcass Psychology Service via FOIs, before eventually drawing a line under this less than transparent aspect of Cafcass work. And we’ve been trying to chase the publication of the review of the presumption of parental involvement that was ‘urgently’ commissioned in 2020, sending three sets of FOIs – yet the saga continues. But we’re nothing but determined. We hope this report will be out soon…
What’s changed?
In our perception, while there is much more still to do, a number of things have materially shifted in the last decade…
- the quality and depth of reporting has changed –
- reporters are becoming more skilled and experienced and are able to see more documents and more hearings, they are asking more probing and perceptive questions about patterns and rationales.
- critically, the Reporting Pilot, and now PD12R the Open Reporting Provisions (and FR Pilot) enable more reporting,
- a virtuous circle has been created whereby the more that is reported, the more that editors understand the public interest and potential in reporting family court work, and are willing to invest time into sending their reporters or commissioning work,
- The TP has has changed – we’ve learnt more about the skills and editorial and financial constraints of reporters and media outlets, about what works for them and what doesn’t. We’ve learn more about what is important about reporting, even reporting we don’t agree with. And we’ve learnt more about how to protect children whilst also promoting transparency.
- the law has changed – in the sense that through a number of high profile appeals, many driven by a TP member and journalist Louise Tickle have led to appellate judgments which clarify and distill the law, the application of the open justice principle and the procedure for dealing with the reporting of the family court – always on a case by case basis, always with due respect to the privacy and welfare of children, but also with a strong appreciation of the importance of open justice and freedom of expression. There are new boundaries being tested – parents telling their story, naming of perpetrators etc. and we are sure to see more caselaw in the coming years.
- attitudes within the family courts have changed – judges and lawyers in particular seem to have begun to accept and even see the benefits of greater transparency (with some notable exceptions). Senior leadership judges both in children and finance cases are on board and driving this attitudinal change, recognising it as essential to the credibility of the family court.
- public perception has changed – parents regularly contact us, sometimes several times a week, to ask for a reporter to attend their hearing. They feel safer and reassured by the knowledge someone from outside will be watching what is done – by the judge, by the opposing lawyers, by their ex, by the social workers. The presence of observers should make everyone feel reassured and it should tell family justice professionals how vulnerable and frightened parents are as they navigate the family court.
What next?
We’d love to hear your ideas for where we could direct our attention in the next 10 years.
Meanwhile…
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
Our legal bloggers take time out at their own expense to attend courts and to write up hearings.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!