Munby 2.0 – Revised version of Sir James’ Submissions to the Transparency Review

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Munby 2.0 – Revised version of Sir James’ Submissions to the Transparency Review

This is the REVISED text of a submission to the President of the Family Division’s Transparency Review made by Sir James Munby (former President of the Family Division), in advance of the oral evidence session scheduled for 17 May 2021. It is published here with kind permission of Sir James. We have added some hypertext links to some of the documents referred to which are freely available online. Sir James has added some revisions, which are marked below in blue. The original version can be found here.

THE PRESIDENT’S TRANSPARENCY REVIEW

Session on 17 May 2021

Submission by SIR JAMES MUNBY : 6 May 2021

(Revised 14 May 2021: changes highlighted)

Background

I was called to the Bar in 1971 and took Silk in 1988. I was appointed a judge of the High Court, assigned to the Family Division, in 2000. I was appointed a Lord Justice of Appeal in 2009. From 2009-2012 I was Chairman of the Law Commission. From 2013 until my retirement in 2018 I was President of the Family Division. I am Chair of the Board of the Nuffield Family Justice Observatory.

From 1988 until 2000 I was involved as counsel in many of the most important reported cases relating to what we would now call transparency in the family courts: acting sometimes on behalf of a child, sometimes as amicus curiae but frequently on behalf of newspapers. From 2000 until 2018, as a judge, I gave many reported judgments on the same topic.

I think I can fairly say that my judgments in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 82, and A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, paras 112-114, are widely recognised as definitive on the meaning and effect of section 12 of the Administration of Justice Act 1960.

My perspective therefore reflects more than 30 years immersion in, thinking about and analysis of transparency from a variety of perspectives.

The failure of reform

That the law was not satisfactory and required reform was recognised as long ago as 1993, when the Lord Chancellor’s Department (the ancestor of the Ministry of Justice) published a Consultation Paper, Review of Access to and Reporting of Family Proceedings. It remains to this day the best analysis, in many ways, of the law and of the problems associated with it.[1] The results of that Consultation were never published and nothing more was done for over a decade.

During the period from 2006 to 2009 the Department of Constitutional Affairs and its successor the Ministry of Justice carried out further Consultations.[2] During this process Government thinking underwent many changes. Eventually, what emerged was Part 2 of the Children, Schools and Families Act 2010. It was poorly drafted and never properly debated in Parliament; for a critical analysis, in both senses, see Munby, Lost Opportunities: law reform and transparency in the family courts, [2010] 22 CFLQ 273-289 (the 2010 Hershman-Levy Memorial Lecture). It was never implemented and, unlamented, was repealed in 2013:

“Do the reforms which have taken place meet the criteria I have set out? Do they even meet the criteria identified by their architect? My answer to each question can only be a saddened and regretful No! … One view … is that if anything the Act is likely to reduce, rather than increase, the amount of information about children and other family proceedings which finds its way into the public. Truly, it may be thought, a lost opportunity.”

During this period three things were achieved:

  • With effect from April 2005, and as a direct result of my judgment in Re B, section 12 was amended by the insertion in section 12(4) of the following italicised words:

“Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”

In short, section 12 can now be disapplied by rules of court.

  • Amendment to the relevant rules of court followed in October 2005 and, to much more radical effect in April 2009, permitting disclosure in various circumstances which would otherwise be prohibited because of section 12: for the latter see now the Family Procedure Rules 2010 (FPR) Chapter 7 Rules 12.73 and 12.75 and Practice Direction 12G.
  • With effect from April 2009, accredited journalists have been entitled, with certain limited exceptions, to attend family proceedings held in private: see now FPR Rule 27.11, Practice Direction 27B, Attendance of Media Representatives at Hearings in Family Proceedings, and President’s Guidance of 22 April 2009: Applications Consequent upon the Attendance of the Media in Family Proceedings: [2009] 2 FLR 167.  

The practical impact of this in relation to transparency has been minimal, essentially for three reasons:   

  • First, the new disclosure rules did not enable journalists to report what would otherwise be prohibited because of section 12:
    • Most of the newly permitted disclosure was to those ‘inside the system’ who had a ‘need to know’.
    • Rule 12.73(2) made clear that there was to be no “communication to the public at large, or any section of the public of any information relating to the proceedings”.
    • (see Re N (A Child) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 58-59, 71), Rule 12.73(2) prohibited the journalist publishing what had been communicated.
  • Secondly, the access to proceedings which had now been granted to journalists was not accompanied by any relaxation of section 12: so, the journalist could attend but could not report.
  • Thirdly, the access to proceedings which had now been granted to journalists was not accompanied by access to the documents: so, the journalist could attend but could not understand much of what was happening. Once upon a time, in the days of my legal youth, proceedings in court were entirely oral: there was no judicial pre-reading; there was no written advocacy – no position statements or skeleton arguments; in an oral ‘opening’ the advocate took the judge, often at some length, through the facts, the documents and the law; and evidence in chief was oral. The journalist and the intelligent observer in the public gallery were thus able to follow what the case was about and what was going on. That is still, in essence, the procedure in criminal cases; in civil and family cases it has long since been consigned to history. The judge will have pre-read the bundle, there are written chronologies, position statements and skeleton arguments, and the evidence in chief is set out in written witness statements. The opening, if there is one, is attenuated. Much of the time, the hearing proceeds with such Delphic observations as “in relation to what the applicant says in paragraphs 23, 25 and 49 of her witness statement …” or “I need not elaborate what is set out in my skeleton argument except to note that …” Even the most astute and experienced journalist or observer is hard put to understand or follow what is going on.  

The last point is exacerbated by the complexity and unpredictability of any application by a journalist for access to documents: see, for example, the decision in Newman v Southampton City Council [2020] EWHC 2103 (Fam), [2020] 4 WLR 108, which in places is not entirely easy to follow and is therefore difficult to apply,[3] and, in relation to the costs of redaction and copying, Newman v Southampton City Council [2020] EWHC 2148 (Fam) (appeal dismissed Newman v Southampton City Council and others [2021] EWCA Civ 437).[4] Interestingly and importantly, in the Court of Appeal King LJ commented (para 90): “This case has served to emphasise the need for the development of guidance in the form of court rules in order to assist courts in dealing with these difficult issues.”

Unsurprisingly, in these circumstances, few journalists chose or choose to attend.

More recently, I was responsible as President for pushing through two initiatives:

“is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts …there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public”.  

The effect of this has been mixed:

  • Compliance with the Practice Guidance has been both patchy and inconsistent. The Practice Guidance has not achieved what I had hoped and intended. The findings of two careful pieces of research are, to put it no higher, deeply troubling: see, in 2017, Doughty, Twaite and Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (see also their very helpful 4-page abridged version), and, in 2020, Bellamy, The ‘Secret’ Family Court, chapter 7: The Impact of the Practice Guidance. These two studies need to be read in full. Broadly speaking, their conclusions are very similar. Bellamy’s is particularly useful, for it covers a longer period and is more up to date. It focuses on the publication of judgments by Circuit Judges. A graph covering the period from March 2014 to March 2019 (page 95) illustrates the dramatic, and seemingly continuing, decrease in the number of such judgments published since 2015. He comments (pages 97-98):

“… during that five-year period 82 family Circuit Judges did not publish any judgments at all. When the figures are analysed in detail it can be seen that only 20 judges published more than ten judgments, the rest were all in single figures. 11 judges published more than 20 judgments.

There is also regional variation. In Wales only two judges published judgments. 96% of those judgments were published by just one judge. In one major court centre (Birmingham) a total of five judgments were published by three judges. In some courts – Wolverhampton, Telford and Worcester, for example – no judgments were published at all.

… There are 42 Designated Family Judges in England and Wales … 18 DFJs in post when I undertook the survey have never published a judgment on Bailii.”

Circuit Judges, like all judges in the family justice system, are having to cope with the intolerable pressures of ever-increasing workloads (I ignore, for present purposes, the additional pressures generated by the COVID pandemic.) And this, as Bellamy explains (pages 99-102), is undoubtedly a very significant factor when assessing the picture overall. But it does not begin to explain the astonishing differences uncovered by his, and the earlier, research. The stark reality is that much of this is because of very differing judicial attitudes and behaviours (on which see Bellamy, pages 102-111). The problem could hardly be clearer: Why had 18 out of 42 DFJs never published a judgment?    

  • On the ‘plus’ side, recent years have seen the emergence of a new breed of tweeters and bloggers (lawyers and non-lawyers) and freelance journalists whose work is transforming knowledge and understanding of the family justice system. Their work is characterised by a real understanding of the system and a desire to explore the realities of its workings. Often very critical – justifiably so – their approach is, however, responsible and directed to explaining and improving the system. This is critically important. Many point, with every justification, to the fact that too much of the reporting of the family justice system in the traditional non-specialist media has been, and still is, uninformed, lazy, partisan, and, on occasions, tendentious, and that too often it displays cavalier disregard for C P Scott’s famous aphorism that “Comment is free, but facts are sacred” (see In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, para 27). Granted the premise, different conclusions may be drawn as to how best to proceed. My view has always been that we do best to follow the principles laid down:
    • by Holmes J in his famous dissenting judgment in Abrams v United States (1919) 250 US 616, 630, where he asserted that “the ultimate good desired is better reached by free trade in ideas … The best test of truth is the power of the thought to get itself accepted in the competition of the market”; and
    • by Brandeis J, who in Whitney v California (1927) 274 US 357,377, said “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Be that as it may, the point is that this new breed of tweeters, bloggers and freelance journalists is far removed from the traditional stereotype. In contrast, they are informed and diligent. And, crucially, their concern is with the facts, with the truth; indeed, it is their very inability to get to the facts that makes them so critical of the system. We can therefore ill afford to dismiss what they are saying.

Developments in the Court of Protection

It is relevant to note two initiatives in the Court of Protection which I undertook in my capacity as President of the Court of Protection:

This opening up of the Court of Protection seems to have worked well and, importantly, without causing any significant problems. Interestingly, it has led to much greater outside interest in and reporting of what the Court of Protection is doing, extending far beyond the traditional legal reporting and analysis of published judgments. The blogs and tweets published by the Open Justice Court of Protection Project – Promoting Open Justice in the Court of Protection are a convincing demonstration of the many and obvious advantages which have accrued following the opening up of the Court of Protection. They are important as showing the way ahead, not least because the distinguished commentators who are the Open Justice Court of Protection Project ­– Professor Celia Kitzinger and Gill Loomes-Quinn – are neither lawyers nor journalists, attending court as members of the public.

The problem 

There are two major problems:

  • First, there is the sheer complexity of the law. The number of reported cases since 1975 is enormous. The six critical words in section 12 – “information relating to proceedings … in private” – which, although section 12 has been amended from time to time down the years, have remained unchanged from the first introduction into the House of Lords in March 1960 of the Bill which became the 1960 Act, have probably generated as much litigation as any other six words on the statute book. The LCD’s Consultation Paper of 1993 runs to 134 pages; Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, the current practitioner’s ‘bible’, runs to 243 pages, not counting a further 84 pages of appendices; Burrows, Open Justice and Privacy in Family Proceedings, runs to 216 pages.
  • Secondly, the case-law establishes that there is a crucially important distinction between publishing merely “the nature of the dispute” (which is permissible) and publishing “the substance of the matters” (which is not permissible). There are five cases which bear on this: Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246, X v Dempster [1999] 1 FLR 894, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11, and S v SP and Cafcass [2016] EWHC 3673 (Fam), [2017] 2 FLR 1079. The judgment of Wilson J, as he then was, in Dempster was the first to explore the distinction and remains, in many ways, the most important; it comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. It is no criticism of Wilson J, but rather of the state of the law, that his analysis (and the same goes for all the other cases) is essentially subjective and thus unlikely to be of much use to even the most experienced journalist.

The consequence of this is that, irrespective of what a lawyer may think it means, section 12 has a seriously chilling effect on what people – families, journalists and legal bloggers – think can be published:

  • Given that a breach of section 12 involves contempt of court – for which the penalty is imprisonment or unlimited fine – a legal blogger or journalist without access to appropriately skilled legal advice, and even one who is well advised or knowledgeable but has a lot to lose professionally and personally if they or their lawyers interpret the scope of what is permissible differently from a judge, is bound to err on the side of caution. This usually means that very little is published in the absence of a published judgment, and, even then, only what can be gleaned from the judgment.
  • The cost, in terms of time, effort and potential legal costs, and the unpredictability of the outcome, mean that an application to the court to disapply section 12, whether in part or in whole, is typically undertaken only by the most determined. The practical reality I fear is that, because of the complexity and lack of clarity, too many in the media – commissioning editors, journalists and even media lawyers – just do not want to go there; let alone getting to the stage of making an application in what, rightly or wrongly (and it does not matter which), many feel is a hostile, conservative environment that does not like the press or any sort of scrutiny.
  • The complexity and uncertainty in the law, coupled with the professional reality that few family lawyers (and not even all media lawyers) are actually masters of all the learning, means that legal advice is likely to be very cautious, whether the issue is the meaning and effect of section 12 or the possibility of its disapplication.

Let me illustrate this with a far from fanciful example. Suppose a demonstration is held outside a family court, the demonstrators holding up banners, each showing the photograph of a judge and, in quotation marks, what the judge is alleged to have said in court. Does section 12 mean that film of the demonstration cannot be broadcast on the local television news unless all the words on all the placards have been obscured? The purist might think it does. The thoughtful, watching a sea of pixelated images, might think this tantamount to censorship of the reporting of an important event. The average viewer might join Mr Bumble in thinking that “the laws is a ass – a idiot.” And would it make any difference if the quotations were in fact fabrications – for then one would have the curious consequence that it would be lawful to broadcast untruths though unlawful to broadcast the truth?

The consequences

The consequences of all this are profoundly serious. I identified the issues as long ago as 2004 in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. Nothing which has happened since has caused me to alter the analysis. Quite the contrary. There are four major problems:

  • It causes serious and continuing reputational damage to the family justice system: There is a public interest in promoting and maintaining the confidence of the public at large in the family courts, an interest underscored, as the Strasbourg court has repeatedly stressed, by ECHR Article 6. The reality is that confidence is at a low ebb because of perceptions that the family justice system is failing and that there are miscarriages of justice. We cannot afford to proceed on the blinkered assumption that all is well and that there have been no miscarriages of justice in the family justice system. We know there have been and continue to be. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential, not least because, in the very nature of things, the initial ‘official’ response to any allegation that there has been serious error is likely to be one of scepticism or worse. But that, it might be thought, is all the more reason why there should not be restraint, why the media should not be hindered in their vital role.
  • It prevents parents and children speaking out: Parents and relatives such as kinship carers often want to speak out publicly; sometimes children also do.[5] The workings of the family justice system and, very importantly, the views about the system of those caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system are so serious and life changing that they require open and public debate in the media. It is important, in a free society, that parents, relatives and children who feel aggrieved at their experiences of the family justice system are able to express their views publicly about what they conceive to be failings in the judicial system or on the part of individual judges.
  • It facilitates the peddling of untruths: One of the disadvantages of the “curtain of privacy” to which Balcombe LJ once referred – what some campaigners would prefer to characterise as the cloak of secrecy surrounding the family courts – has become apparent. Those who without justification attack the family justice system can all too easily do so by feeding the media tendentious accounts of proceedings whilst hypocritically sheltering behind the very privacy of the proceedings which, although they affect to condemn, they in fact turn to their own advantage. It is all too easy to attack the system when the system itself prevents anyone – even the responsible journalist or commentator who wants to print the truth – correcting the misrepresentations being fed to the media. The simple fact is that too relentless an enforcement of the privacy of family court proceedings is counter-productive; the rule of confidentiality facilitates the dissemination of false and tendentious accounts of proceedings in family courts, which in turn tends to further undermine public confidence in the system. The point was well captured by Ryder J, as he then was, in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005] 1 FLR 648, para 22:

“In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.”

In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, I said this (paras 1, 43-45):

“This is an application … for a reporting restriction order in a matter which has been the subject of much reporting and comment in the media both in this country and around the world. Too much of that reporting has been inaccurate – though that, as I shall explain, is not entirely the fault of the media – and some of it has been tendentious, to use no stronger word … Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public? The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.”

  • It prevents the judges being held properly to account: As Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, “freedom of speech is the lifeblood of democracy … It facilitates the exposure of errors in the … administration of justice of the country.” The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. In his great speech in Scott (otherwise Morgan) and another v Scott [1913] AC 417, 477, Lord Shaw of Dunfermline quoted Bentham to powerful effect: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” Yet the effect of section 12 is to hobble the media.

This last point is fundamentally important and requires elaboration.

Holding to account

Let me postulate a simple hypothetical example. A journalist or legal blogger attending a hearing listens to a discussion between the judge and advocates about the arrangements for a future fact-finding hearing. Notwithstanding section 12, in my opinion (though I could understand a journalist or legal blogger being more cautious), it is permissible for the journalist or blogger, in identifying the issues being discussed, to refer, for example, to:

  • How much of the bundle the judge needs to read before giving directions.
  • How many and which of the allegations (one of rape) should be the subject of fact-finding.
  • The need for any fact-finding and the likely impact of any findings on future contact.
  • Whether the complainant should have the use of screens.

Beyond that, section 12 prohibits not merely publication of even anonymised extracts from the journalist’s or blogger’s shorthand notes (or from the transcript, if available) but also any account of how the judge dealt with the issues.

The journalist or blogger is dismayed – perhaps appalled – by what the judge has said, or indeed by what they observe of his non-verbal conduct or of the interactions and dynamics in the courtroom, as indeed, let us suppose in our hypothetical example, would be the vast majority of right-thinking family practitioners and members of the public. What is the journalist or blogger to do? Ask the judge who is to be criticised to authorise publication? Many, and not only the most cynical, might understandably baulk at the very idea.

There is a profoundly important, if very simple, question: how could publication of this material in totally anonymised form (except for the identity of the judge) possibly damage anyone other than the judge? The answer is obvious – it could not – unless it is to be said that it would damage public confidence in the family justice system. To that objection, the answer is equally obvious: how is confidence in the system maintained by concealing the truth, however disagreeable, embarrassing or even career-damaging? Quite the reverse.[6]

Is section 12 a necessary protection or an objectionable obstacle? The answer is clear. If it is said that my example is fanciful, I need only refer to the recent judgments in notorious appeals: JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448.

What this illustrates, I have to suggest, is:

  • The chilling effect of section 12 and just how serious an obstacle section 12 is to publishing the truth about what is going on in the family courts and to achieving proper accountability.
  • That there are cases – who knows how many, but I fear too many – where the only person being protected by section 12 is the judge – not the family, not the children, nor other lay participants – a person who, in the public interest, ought to be held to account.
  • The irrefutable truth of the Benthamite proposition that only constant exposure to the public gaze keeps judges up to the mark.

There are a number of further linked points:

  • What I have said in relation to the judges has equal traction in relation to other public officials and public bodies.
  • Section 12 not merely stands in the way of judges and other public officials being held to account, it also hinders and to a significant extent prevents what one might call “internal transparency” – the ability of a system to reflect, having had a mirror held up, and to learn and where necessary to effect cultural change. By this I mean not just change of culture in relation to transparency but also cultural change more generally, for example in attitudes to domestic abuse.
  • Publication of judgments – many, many more judgments than at present ever see the light of day – is vital. However, it is not a panacea. A judgment, after all, contains only what the judge chooses to include, but a critic may wish to argue, for example, that the judge has misunderstood the evidence or overlooked important matters or, as in the appeals in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, where the vitally important context was revealed only when the transcripts were produced, has arrived at his conclusions by a process which was unfair or worse. Even if the judgment has been published, section 12 precludes discussion of any of those matters. Why? As I said in Re Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, para 110:

“if what is being said is that there has been a failing in the judicial process, it might be thought – and certainly will be thought by some – to be less than satisfactory that the only accounts of what has happened, the only explanations to be given to the public, are those which a judge thinks it appropriate to include either in a judgment or in a judicially approved press release. After all, the complaint may be that the judge has misunderstood the evidence, overlooked some vital piece of evidence or gone against the weight of the evidence – and how can that case be made if the only material available to the public is the very judgment whose alleged deficiencies are under challenge?”

The standing of the family justice system today

In relation to all of this, I venture to quote what I said in A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, para 133:

“… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 … And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77:

‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’

I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.”

Matters are no better today. If anything, they are worse. Down the years the focus of criticism has shifted from time to time. In 2004 the concern was as to the quality of expert evidence in cases of sudden infant death. Subsequent concerns related to wider problems in the care system: the issue of so-called ‘forced adoption’; concerns that too many children were being taken into care; and, more generally, complaints about often seemingly serious failings by local authorities. On occasions these concerns extended to criticisms of judicial behaviour. Most recently, the focus has been on failings – and especially judicial failings – in the private law system, in particular in cases involving, or alleged to involve, domestic abuse. The Final Report of the MoJ Expert Panel on Harm in the Family Courts published in June 2020 [Assessing Risk of Harm to Children and Parents in Private Law Children Cases: Final Report] is a shattering indictment of the system. The accompanying Ministerial statement was blunt:

“This report lays bare many hard truths about long-standing failings in the family justice system, especially in protecting the survivors of abuse and their children from harm. It is not a comfortable read. The testimonies in the report[7] show that there are some fundamental issues that we must address in order to improve the experience and ensure the safety of all participants in the family justice system. I want to make it clear that this is not acceptable.”

The judgments in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 reveal very serious judicial failings by experienced family Circuit Judges and show that there can be no room for complacency. But for the appeals, the likelihood is that these judicial failings would have gone completely unnoticed, shielded from publicity by a combination of the judges’ failure to publish their first instance judgments and the effect of section 12.

The saddening reality, I believe, is that the family justice system stands today in lower public regard than at any time I can recall. It gives me no pleasure to say this, but it is, I believe, a time for plain speaking, however painful. We cannot afford to stand still. The stark reality is that the family justice system is going to lose more by persisting with its current way of doing things than – no matter the inevitable discomfort – it will by becoming more open.

The irony is that it is section 12 which also shields good judicial work from being shown – for example by the journalist who is in court and wishes to explain, and illustrate, how very well a humane and empathetic judge has managed the hearing and supported the parties to give their best evidence.

A problem of culture

Underlying these difficulties, is a significant problem of judicial culture. The point can be put very simply: how many of us really accept either the Benthamite principle that the judge, while judging, should himself be judged (“Publicity is the very soul of justice … It keeps the judge himself while trying under trial”) or Brandeis J’s belief in the disinfectant power of exposure to forensic sunlight?

A five-fold approach

I suggest that what is needed – and as a matter of pressing necessity – is the following:

(1) Repeal of section 12 and, if appropriate, its replacement with more focused provisions better suited to the modern world

I need not rehearse the arguments: see, in addition to what I have already said, Munby, Bellamy, Reed, Doughty and Tickle, Should section 12 of the Administration of Justice Act 1960 be repealed? – A Proposal for the Law Commission’s 14th Programme of Law Reform, [2021] 80 Family Affairs 23, and, without the Introduction, [2021] Fam Law 466.

(2) An open court pilot

In the meantime, and a matter for early implementation, there needs to be an ‘open court’ pilot scheme in the family courts similar to the pilot that was so successful in the Court of Protection. I am aware of the proposals which the very experienced freelance journalist Louise Tickle has put forward. l strongly support them. I am conscious that forensic realities in the family courts often differ from those in the Court of Protection, but for present purposes the fundamental legal principles in play are precisely the same, as demonstrated by (a) the analysis of all the judges in Scott (otherwise Morgan) and another v Scott [1913] AC 417 and (b) the fact that section 12(1)(a), in relation to the family courts, mirrors precisely section 12(1)(b) in relation to the Court of Protection.

I acknowledge, of course, that media reporting is not and never will be perfect. But, with all its inevitable imperfections, it works as an important check to power in other parts of our society; it should be allowed to do so in the family justice system.

(3) Increased publication of judgments

The following steps need to be taken:

  • The consolidation of the existing Practice Guidance (the Practice Guidance I issued in January 2014 and the Practice Guidance: Family Court – Anonymisation Guidance issued in December 2018 by the President) as recommended by Doughty, Twaite and Magrath, coupled with a renewed and sustained drive to persuade judges to comply with it.
  • The setting up of an Anonymisation Unit along the lines of the Australian model as recommended by Bellamy (Bellamy, 189-192, 248-249) – it is essential that this is under the direct control of the judiciary and not a task undertaken by either Her Majesty’s Courts and Tribunals Service or the Ministry of Justice.
  • The introduction of up-to-date digital technology to generate, anonymise and, where necessary, redact transcripts of judgments (see Bellamy, 191, describing the automated anonymisation software used in the Federal Circuit Court of Australia), coupled with much-needed improvements in the contractual and administrative arrangements for the provision of transcripts. We need in this context, as well as more generally, to consider the implications of the new technologies which underpin the remote court working which has become such a familiar feature of the COVID pandemic.    
  • Clarification of the guidance in relation to the naming of local authorities and other public bodies. The 2014 Practice Guidance was explicit that “public authorities … should be named in [a] judgment approved for publication, unless there are compelling reasons why they should not be named”. That reflected the case-law. Some judges seem to have taken the view that the later Practice Guidance has changed this, and therefore have not named the local authority: see, for an example, A Local Authority v B, H and I (Sibling as carer or adoption) [2019] EWFC B1, para 1. This is a seriously retrograde step.

(4) Creation of a Media Liaison Committee        

I strongly support Bellamy’s recommendation (Bellamy, 203-204, 250) that a Media Liaison Committee should be created. Given current realities, it is important that such a group should include not only members drawn from the traditional print and broadcasting media but also members drawn from the blogging and tweeting communities.

(5) Rule changes

Pending repeal of section 12, and whatever else is done, rule changes having effect for the purposes of section 12(4) would go a significant way to ameliorating the problems identified above.

In this connection, I believe that we need to proceed incrementally. What I propose is merely a first step. The situation needs to be kept under review, with a view to moving further forward with all due speed in the light of experience.

For this purpose, I propose new rules under three headings:

  • Disclosure by parties to reporters.
  • Access by reporters to documents.  
  • Extending the ambit of what can be reported.

I use the expression “reporter” to include both journalists and legal bloggers.

Disclosure by parties to reporters

FPR Rule 12.75(1) should be amended to provide explicitly that a party to proceedings is permitted to “communicate information relating to the proceedings” (which in this context would plainly include documents) to a reporter.

On one view, such a rule would not require qualification, as Rule 12.73(2) would prohibit the reporter publishing anything so communicated without the prior approval of the court unless otherwise permitted by the new rules I propose below.

On the other hand, and whatever the strict logic of such an approach, it might be thought appropriate to exclude certain identified types of document. I have in mind:

  • Medical (including psychiatric and psychological) records and reports relating to anyone other than the person who is communicating with the journalist. Such documents will, of their nature, include highly sensitive and confidential information in relation to which a high degree of protection – protection from dissemination and publication – attaches as a matter of principle, human rights and substantive law. In particular, the State is under an obligation to ensure that there are in place “effective and adequate safeguards against abuse”: see the discussion in Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 49-51, Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79, [2017] 1 FLR 82, paras 27-31, and In re G (A Child) (Wider Family: Disclosure of Court File) [2018] EWHC 1301 (Fam), [2018] 4 WLR 120, para 32, of the Strasbourg decisions in Z v Finland (1998) 25 EHRR 371 and MS v Sweden (1999) 28 EHRR 313.
  • Assessments – for example assessments as potential carers of parents, kinship carers, special guardians and adoptive parents – of anyone other than the person who is communicating with the reporter.
  • Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure.

Access by reporters to documents

Rules 12.73 and 12.75 or PD 12G should be amended to entitle a reporter who attends or is or was entitled to attend any hearing to be supplied forthwith on request with certain documents. What those documents should be is a matter for consideration, and it may be prudent in the first instance to proceed incrementally, but I propose that initially the following should be provided if requested:

  • Chronologies (including social work chronologies), case summaries, position statements and skeleton arguments. These are necessary to enable the reporter to understand and follow what is going on.
  • Expert reports, in particular expert reports relating to harm alleged to have been suffered by a child. This would be in line with what Sir Nicholas Wall P said in Re X, Y and Z (Expert Witness) [2011] EWHC 1157 (Fam), [2011] 2 FLR 1437, para 94:

“I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.”

If disclosure of other documents is sought, application should be made, as at present, to the judge.

This list should be expanded, in the light of experience, to include, for example, witness statements. In particular, early consideration must be given to permitting disclosure of witness statements filed on behalf of local and other public authorities.

My present feeling is that, whatever future additions might be made to the list of documents a reporter is entitled to have supplied on request, it should remain necessary first to obtain the approval of the judge for a reporter to obtain:

  • Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure.

There is an issue as to whether documents should be provided in anonymised form. Although many might, instinctively, think that such documents should always be anonymised, there are powerful countervailing arguments:

  • The burden of redaction imposed on those who are often already over-worked and poorly remunerated.
  • The fact that, at the end of the day, the real and vital protection is that afforded by section 97 of the 1989 Act (as elaborated in the publication rules proposed below).

I draw attention to CPR PD52c, para 33(2), which provides that in appeals to the Court of Appeal in family proceedings involving a child the copies of the skeleton arguments required to be supplied in accordance with para 33(1) “must be in anonymised form and must omit any detail that might, if reported, lead to the identification of the child.” That, however, applies to proceedings in open court, so may not be necessary where the proceedings are in private and therefore, subject to specific exceptions, protected by section 12 and section 97.

Extending the ambit of what can be reported

For this purpose, I propose for the moment new rules based in part on the provisions to be found in:

  • the Judicial Proceedings (Regulation of Reports) Act 1926, as in force today;
  • the Children and Young Persons Act 1933, as in force today;
  • the Magistrates’ Courts Act 1980, as in force immediately before the introduction of the Family Court in 2014; and
  • the Children Act 1989, as in force today.

The first three of these are of particular interest because they regulate the publication of details of hearings conducted in public (the 1926 Act) or hearings in relation to which journalists were entitled by statute to be present (the 1933 Act dealing with the youth court and the 1980 Act dealing with the family proceedings court). I am not aware that these provisions of either the 1933 Act or the 1980 Act have ever given, or ever gave, rise to any concerns. It is also to be noted that, as Sir Stephen Brown P said in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, quoted in Rapisarda v Colladon [2014] EWFC 1406, [2015] 1 FLR 584, para 25, referring to section 1(1)(b) of the 1926 Act:

“it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.”

I set out the relevant provisions in the Appendix.

As can be seen, there is significant common ground between them. For present purposes it is to be noted that they adopt three different techniques:

  • Stating what you cannot publish: the 1933 Act, sections 49(1), (3A); and the 1989 Act, section 97(2).
  • Stating what you can publish: the 1926 Act, section 1(1)(b).
  • Stating both what you cannot publish and what you can publish: the 1980 Act, sections 71(1A), (2).

In terms of what you cannot publish, compare: the 1933 Act, sections 49(1), (3A); the 1980 Act, section 71(2); and the 1989 Act, section 97(2). In terms of what you can publish, compare: the 1926 Act, section 1(1)(b); and the 1980 Act, section 71(1A).

I propose – I emphasise along with other reforms – rule changes, in the first instance setting out, along the same lines as and building on these statutory precedents, both a list of what you cannot publish and a list of what you can publish. In due course, and I would hope sooner rather than later, it will be important to move to a simpler rule merely setting out what you cannot publish.

In the first instance, such a rule might take the following form:

  • A reporter may publish:
    • the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;
    • the submissions on any point of law or practice arising in the course of the proceedings and the decision of the court on the submissions;
    • the judgment or decision of the court, and any observations made by the court in giving it;
    • information about the conduct, verbal and non-verbal, of the judge and the judge’s exercise of case management powers;
    • information about the conduct in the course of the proceedings of the local and any other public authority; and
    • comments, views and criticisms (including by the parties or third parties) on any of the above.
  • Provided that the reporter must not publish in relation to any child concerned in the proceedings:
    • the name or address of the child;
    • the identity of any school or other educational establishment attended by the child;
    • any picture (still or moving) as being, or including, a picture of the child (unless the child is disguised so as to prevent identification); or
    • any material which is intended, or likely, to lead members of the public to identify the child as someone concerned in the proceedings or in any other proceedings before the High Court or the family court in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child.
  • Provided also that the reporter must not publish (except as part of any report to the extent permitted above of any judgment decision or observations made by the court)
    • any part of any medical (including psychiatric and psychological) record or report relating to anyone other than a person who consents to disclosure; or
    • any assessment of anyone other than a person who consents to disclosure.

The rule would require definitions of what for this purpose is meant by “reporter”, “publish”, and “child concerned in the proceedings”.

Conclusions

In summary:

  • Something has got to be done. Inaction is not an option.
  • Reform – significant reform, not just tinkering – is an urgent and imperative necessity, even if, initially, it should be incremental.
  • In the first instance, the most immediately effective way of moving forward is by rule changes to take advantage of section 12(4).

Appendix (statutory precedents)

Judicial Proceedings (Regulation of Reports) Act 1926

1(1)     It shall not be lawful to print or publish, or cause or procure to be printed or published –   

(b)       in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:—

(i)         the names, addresses and occupations of the parties and witnesses;

(ii)        a concise statement of the charges, defences and countercharges in support of which evidence has been given;

(iii)       submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;

(iv)       the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment …

Children and Young Persons Act 1933

47(2)   … No person shall be present at any sitting of a youth court except—

(a)        members and officers of the court;

(b)       parties to the case before the court, their legal representatives, and witnesses and other persons directly concerned in that case;

(c)        bonâ fide representatives of newspapers or news agencies;

(d)       such other persons as the court may specially authorise to be present:

49(1)   No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings.

(2)        The proceedings to which this section applies are—

(a)        proceedings in a youth court;

(b)       proceedings on appeal from a youth court (including proceedings by way of case stated); …

(3)        In this section “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed) …

(3A)     The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—

(a)        his name,

(b)       his address,

(c)        the identity of any school or other educational establishment attended by him,

(d)       the identity of any place of work, and

(e)        any still or moving picture of him.

(4)        For the purposes of this section a child or young person is “concerned” in any proceedings if he is—

(a)        a person against or in respect of whom the proceedings are taken, or

(b)       a person called, or proposed to be called, to give evidence in the proceedings.

(11)     In this section—

…

“picture” includes a likeness however produced;

“relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990;

65(1)   In this Act “family proceedings ” means proceedings under any of the following enactments, that is to say— …

Magistrates’ Courts Act 1980

(n)       the Children Act 1989 …

69(2)   In the case of domestic proceedings in a magistrates’ court other than proceedings under the Adoption Act 1976, no person shall be present during the hearing and determination by the court of the proceedings except—

(a)        officers of the court;

(b)       parties to the case before the court, their solicitors and counsel, witnesses and other persons directly concerned in the case;

(c)        representatives of newspapers or news agencies;

(d)       any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance.

(3)        In relation to any domestic proceedings under the Adoption Act 1976, subsection (2) above shall apply with the omission of paragraphs (c) and (d).

(4)        When hearing domestic proceedings, a magistrates’ court may, if it thinks it necessary in the interest of the administration of justice or of public decency, direct that any persons, not being officers of the court or parties to the case, the parties’ solicitors or counsel, or other persons directly concerned in the case, be excluded during the taking of any indecent evidence.

71(1)   In the case of family proceedings in a magistrates’ court (other than proceedings under the Adoption Act 1976) it shall not be lawful for a person to whom this subsection applies—

  • to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or
  • [broadcasting]

any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below.

(1A)     The particulars referred to in subsection (1) above are—

(a)        the names, addresses and occupations of the parties and witnesses;

(b)       the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

(c)        submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions;

(d)       the decision of the court, and any observations made by the court in giving it.

(1B)     [Those to whom subsection (1) applies]

(2)        In the case of family proceedings in a magistrates’ court under the Adoption Act 1976, subsection (1A) above shall apply with the omission of paragraphs (a) and (b) and the reference in that subsection to the particulars of the proceedings shall, in relation to any child concerned in the proceedings, include—

(a)        the name, address or school of the child,

(b)       any picture as being, or including, a picture of the child. and

(c)        any other particulars calculated to lead to the identification of the child.

Children Act 1989

97(2)   No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—

(a)        any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b)       an address or school as being that of a child involved in any such proceedings.

(5)        For the purposes of this section—

“publish” includes—

(a)        include in a programme service (within the meaning of the Broadcasting Act 1990);

(b)       cause to be published; and

“material” includes any picture or representation.

[1]                This is not to depreciate two excellent books whose study is fundamental to the issues: Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, Bloomsbury Professional, 2018, and Bellamy, The ‘Secret’ Family Court: Fact or Fiction?, Bath Publishing, 2020. Both, of course, are much more up to date, but, as their titles indicate, their purpose is in each case rather different. Also valuable, especially for its common law perspective, is Burrows, Open Justice and Privacy in Family Proceedings, The Law Society, 2020.

[2]                In July 2006, Confidence and confidentiality: Improving transparency and privacy in family courts, CP11/06; in March 2007, Confidence and confidentiality: Improving transparency and privacy in family courts – Response to Consultation, CP(R)11/06; in June 2007, Confidence& confidentiality: Openness in family courts – a new approach, CP10/07; and, in December 2008, Family Justice in View, CP(R)10/07 (in relation to which the Lord Chancellor made an oral statement in the House of Commons on 16 December 2008). 

[3]                See, for example, paras 112, 121, 129 and 130 in the context of the surely important distinction between an application for permission to see the documents (without the documents going into the public domain) and an application for permission to publish the documents.

[4]                The successful appeal against the original order by a Circuit Judge in the care proceedings is Re M (A Child: Care Proceedings) [2018] EWCA Civ 240, [2018] 2 FLR 690. The successful appeal by journalists against the egregiously defective grant by a DFJ of a reporting restriction order is R (A Child) [2019] EWCA Civ 482.

[5]                For example, a 16-year-old child in care who wants to speak out about the family court proceedings, or a 16-year-old child in private law proceedings who wants to talk about their perception of a court case that ended up with them living with an abusive parent.

[6]                The Circuit Judge sitting in the family court who was so heavily criticised by the Court of Appeal in In re

S-W (Children) (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 1 WLR 4099, was subsequently subject to disciplinary proceedings, in which he was formally reprimanded for “serious misconduct”. Incidentally, the judge had previous ‘form’: see Re S (Authorising Children’s Immediate Removal) [2010] EWCA Civ 421, [2010] 2 FLR 873, Re P (A Child) [2014] EWCA Civ 888 and Re A (Children) [2015] EWCA Civ 133. None of this would have come to light but for the appeals exposing the judge’s behaviour.

[7]                Incidentally, it is not immediately apparent how the publication of much of the immensely valuable anecdotal material quoted in the Report was compliant with section 12. Assuming that this was a research project approved in accordance with PD12G, the gathering of this material would be permitted by PD12G; but its “communication” to the public would not be permitted: FPR 12.73(2). Where in FPR 12.73, 12.75 or PD12G or, indeed, anywhere else does one find authority for what was done?

Featured image: Privacy, by ESB Professional, via Shutterstock.

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