Although I’ve not practised for decades, I’ve spent a lot of time in court. I’ve been a legal journalist and law reporter for most of my working life, so I’m familiar with the courts and their procedures. But it is only since being a member of the Transparency Project that I have attended and written about cases heard in private.
I did this first with the Transparency Pilot in the Court of Protection in 2016, under which cases involving adults lacking capacity to take decisions for themselves over financial and welfare matters were heard in open court, subject to stringent restrictions. Such cases are normally heard in private to protect the interests of the incapacitous parties.
Now, thanks to the Legal Bloggers Pilot introduced by a change in the rules last year, I have been able to attend a private hearing in a family court. I was interested to see what this would be like and how it compared to the Court of Protection pilot.
In both courts, for hearings in private, the public are excluded. Even in open court hearings, the public don’t often attend, unless there’s someone famous involved, or the case has for some other reason attracted publicity. But when the court sits in private, or “in camera”, the public may not go in at all.
Unlike the public, “accredited media representatives” (ie journalists) are permitted under the relevant rules to attend such hearings, unless the court specifically excludes them; but what they report is heavily restricted. They need to be accredited by virtue of their membership of some recognised body, such as the National Union of Journalists, and be able to show a press card or something equivalent to vouch for their accreditation.
What the legal bloggers pilot has done is to extend that right already conferred on journalists to legal bloggers, who are either practising lawyers, or have qualified as lawyers but now work in an academic capacity or write for a legal educational charity. The Transparency Project is such a charity and I have qualified as a barrister. So I fall within the last of the three relevant criteria.
The main difference is the amount of paperwork. In the Court of Protection, which I wrote about here, [link], I was made to sign a form to say who I was, and to confirm that I had received a copy of the court Order directing the case to be heard in open court under the pilot and warning me, in stark terms, not to breach the reporting restrictions. Otherwise I might be in contempt of court. When the hearing began, I would be asked to state my name and explain what I was doing there. This might seem oppressive but in fact the hearing is fairly informal and almost everyone in court identifies themselves, as a lawyer or other professional, much as one would in a seminar or conference. It just makes it easier for the judge to conduct the proceedings.
In the Family Courts, I also had to sign a form in the court itself. But that wasn’t enough. I was also required to produce photo ID (passport or driver’s licence, or in my case a rail travel card), plus proof of my qualification (a copy of my Call Certificate from Middle Temple) and a letter from the chair of the Transparency Project confirming my status as a ‘duly authorized lawyer’ for the purposes of the scheme. Then I filled in an Application Form confirming that I had not been struck off and would abide by any reporting restrictions and that any post I wrote about the case would in the first instance be submitted for publication by the Transparency Project. On a second form (which I will fill in once I’ve finished writing this post) I will need to confirm to the Transparency Project, as publisher, that I am aware of the relevant reporting restrictions and include copies of any relevant orders etc. There is also a feedback form by which I can provide information about my own experience of the pilot, which the Transparency Project can collate with feedback from other bloggers operating under its authorisation, and so assist the judiciary and the Family Proceedings Rule Committee of the success or otherwise of the pilot, if and when it comes to be reviewed.
It is thus apparent that the pilot is very heavily policed, in terms of ensuring that anyone taking part is well aware of the need to observe all reporting restrictions, and no doubt reassuring the court, to whom most of this paperwork is submitted. And all this is being done for bloggers who are already lawyers, unlike most of the press reporters who may attend and report without submitting anything more than proof of accreditation (such as their NUJ card).
I stress the comparison because since the pilot began on 1 October 2018 we have become aware of concerns expressed to the Family Procedure Rule Committee about the pilot, as recorded in the minutes (published some time later). These concerns seem to me to be unwarranted, in the light of the fairly stringent conditions under which the pilot is being conducted.
The case hearing
The hearing which I attended took place on 27 February. It was initially listed in open court, and I attended because I had been tipped off by one of the lawyers. But I had all the paperwork with me to attend as a legal blogger, so when, at the request of the applicant’s solicitor-advocate, the judge agreed to hear the case in private, I was well prepared. My railcard was photocopied, I filled in the court form, and submitted my own paperwork from the Transparency Project. Because the judge had not had a chance to review this in advance, I also stood up and announced my name and confirmed that I was from the Transparency Project and that I was well aware of the reporting restrictions. (Incidentally, I noticed on the press bench, where I had chosen to sit, having been used to doing so as a law reporter, a mounted card reminding media representatives of the need to check and abide by reporting restrictions when attending hearings in private.)
Because the case had been listed in open court, all the advocates had their robes and wigs on. They kept them on till the lunch break (known in court as the ‘short adjournment’) but by the time we all came back to court for the afternoon session, these had been shed for the more informal look of a private hearing.
The case concerned the question whether a child was entitled to choose and be represented by a particular solicitor, instead of the solicitor already instructed by the court-appointed guardian. The child was now almost 13 years old, but had been much younger, nine or ten, during the initial proceedings. The question of the child’s representation was ancillary to the main point of the proceedings, which was to appeal against an order that the child should live mainly with her father, and spend some of the time with her mother, in the hopes of being able to live mainly with her mother. But this hearing did not deal with that. It was solely concerned with the question of what rules applied to the question of whether the child was able to choose her own lawyer, and, depending on those rules, whether the court was satisfied that the child had sufficient competence and understanding to do so.
The point is an interesting one, because this cannot be the first case where, in seems, a teenage or nearly-teenage child appears to have decided that they would like to have their views not only heard by the court, but expressed through a separate lawyer of their own choosing, rather than relying on what their court-appointed guardian thinks best for them. And it seems that the rules are not as clear-cut as they might be.
It isn’t necessary to say more about what happened in the hearing (other than to record that there was a certain amount of what one might call procedural exasperation), because everything of interest is set out in the judgment which has now been published, and which I have written about in a separate post as a case comment: CS v SBH: a child’s competence to appoint her own lawyer
You can also read a comment on it by another blogger (Suesspicious Minds): Not a vacuum but a low pressure vessel