On 1 November 2022 the House of Commons Justice Committee published their report : Open Justice: court reporting in the digital age.
Whilst not limited to matters relating to Family Justice, the report contains a significant section dealing specifically with Open justice in the Family Court, and makes a number of recommendations and observations about open justice that bear upon family justice and the transparency of the system.
The Transparency Project contributed written evidence to the committee’s inquiry, and Transparency Project member Dr Judith Townend gave oral evidence. Other family justice contributions came from Sir Andrew MacFarlane, President of the Family Division and Dr Natalie Byrom (member of the President’s Transparency Implementation Group, amongst other things). The report draws upon our evidence and its recommendations are broadly in line with a number of our own submissions and with the thrust of the President’s ongoing and proposed work on transparency.
In the opening summary the committee say :
“…we support the work being done by the President of the Family Division, Sir Andrew MacFarlane, to enhance the transparency of the Family Court without compromising the confidentiality of the children involved. The Family Court now deals with a large volume of cases, which directly affects a significant number of families, and as a result the public has a legitimate interest in having a better understanding of how the Court works. We recommend that the legislative framework governing the reporting on family proceedings should be reviewed and reformed, as it is no longer fit for purpose. We look forward to seeing the results of the piloting of the changes recommended by the President of the Family Division’s Transparency Review. However, we stress that their success will depend on HMCTS providing sufficient resources to ensure that more information can be published on the work of the Family Court.
In this short post we highlight some of the aspects of the report most relevant to those with an interest in family justice.
The committee tell us that they found a visit to the East London Family Court particularly useful in light of the ‘limited publicly available information on proceedings in the Family Court’, and it is this visit which leads them to write (in bold)
“We would encourage every family court in England and Wales to invite their local MPs to visit so that they can hear accounts of the issues facing the family justice system from those who are responsible for delivering justice on a daily basis.”
The report also adopts a broad based definition of open justice to include various elements of ‘information transparency’ including:
• The transparency of the administration of the courts;
• The quality of the data collected and published by HMCTS;
• Accessing court hearings and court documents;
• The accessibility of judgments; and
• How the courts communicate with the media and the public.
“On this broader view,” say the committee, “the institutional and administrative practices that affect the accessibility of court hearings and the information produced by the judicial process are also caught by open justice.”
If there were any doubt that open justice is relevant to the family court where proceedings are typically conducted in private, the report confirms that :
“In short, open justice is a means of ensuring the best quality of justice and securing the confidence of the public. Sir Andrew McFarlane, the President of the Family Division, in giving evidence to us also emphasised both as reasons for increasing the transparency of the Family Court.”
The report notes the general decline in court reporting over time, and the reasons for that – also acknowledging that one consequence in this decline is an erosion of the personal relationships between media and court staff, particularly at a local level and “frequent complaints to HMCTS from media organisations claiming that journalists were prevented from gaining access to court hearings or information”.
The Legal Education Foundation argued that the quality of information on the justice system has a direct bearing on the “quality of public debate on the justice system. They cite the example of the issue raised by a Channel 4 documentary on domestic abuse and the Family Court and explain that the limited data on the issues raised hindered the quality of public debate.”
Difficulties accessing hearings that the media are entitled to attend were reported as commonplace.
Although not exclusive to the family court, these are all problems we recognise as impeding transparency in the family court arena.
The report notes the publication of a ‘Reporter’s Charter’. This sets out the rights and obligations of journalists relating to rights of attendance, identification and reporting of proceedings. This sounds excellent – but in truth we had not been aware of its existence until now, so perhaps it needs greater distribution – to some extent the mention of this in the Committee report may help boost awareness. The committee also recommend creation of a single point of contact for open justice enquiries both from the media and the public (and no doubt legal bloggers who fall somewhere in between).
Also recommended is that every court should list an email address on its website to enable the media and the public to request access to remote hearings. Most court lists do provide an email address for these purposes – the issue is more around whether emails sent to such addresses are checked and answered quickly enough to enable access.
As regards remote hearings the committee conclude that:
“Remote hearings are still a relatively new and innovative feature of the justice system in England and Wales. The evidence to our inquiry suggests that there is a problem with a lack of coherence and consistency in relation to the ability of the media and the public to access remote court hearings. We recommend that HMCTS gathers and publishes data on requests to observe proceedings remotely. In particular, it would be useful to know the number of requests received and the number of requests granted by jurisdiction.”
They also have positive things to say about “the new legislative framework for remote observation of court proceedings” (which we wrote about here [ insert link ]
“The combination of this framework and improvement of the technological facilities of courts has the potential to enhance open justice by making it easier for the public and the media to observe proceedings.
It is right that judges are in control of the decision as to whether to allow remote observation. In some cases, judges will find these decisions difficult to make. It is crucial therefore that the effect of this new framework is evaluated […] HMCTS should commission an evaluation in June 2023 to examine how the new framework has worked in its first year of operation.
Another interesting request comes off the back of planned digitisation of the publication of court and tribunal lists and the consolidation into a single service in one location. The committee, hearing about this recommended that HMCTS should consider “whether the proposed digital portal should be expanded to include all court information, including results, reporting restrictions and court documents.”
A theme in submissions from various organisations (including The Transparency Project) was the difficulty in finding out what reporting restrictions may be in place in relation to any individual case, so this recommendation, whilst inevitably not something that will be implemented overnight, is a welcome one.
In a similar vein the committee say:
“Reporting restrictions play a key role in securing the fairness of the justice system. However, it is clear that there is inconsistency in the courts’ approach to notifying the media when restrictions are in place, and they are often not effective at ensuring compliance, particularly on social media. This is an important example of where the modernisation of the infrastructure of open justice is long overdue. The proposed new digital portal should also enable access to a centralised database of reporting restrictions on cases.”
Unsurprisingly the publication of judgments comes in for scrutiny, Whilst the committee “welcome[d] the establishment of the National Archives Find Case Law Service” they aw this as hopefully “the first step in improving the public accessibility of judgments”, saying that
“HMCTS should reform the way that judgments are collected, stored and published so that there is less reliance on commercial legal publishers. The judgments of courts are the product of a publicly funded justice system and the public, the media and the legal sector should not have to pay significant sums for access”.
Chapter 5 of the report is dedicated entirely to the Family Court. There is a useful potted summary of the history of attempts at reform in this area and a summary of the current legal framework, in particular s12 Administration of Justice Act 1960 (the piece of law which prevents people talking about their private children hearings). The committee set out some of the Transparency Project’s submissions about the difficulties in practice associated with s12 (which you can read about here), and in line with the recommendations of Sir Andrew MacFarlane in his Transparency Review report, state that
“there should be a review of section 12 of the Administration of Justice Act 1960. In our view section 12 of the Act should be reviewed and reformed so that it can replaced with a much more targeted measure that respects the principle of open justice. The Government should ask the Law Commission to produce a proposal for the reform of section 12 of the Administration of Justice Act 1960 that provides a better balance between transparency and confidentiality”
The Committee also say that
“In broad terms, we support the Transparency Review’s principal recommendation that media representative and bloggers should be able to report, subject to the relevant restrictions, on the cases they observe in the Family Court. We would caution, however, that given the decline in the number of court reporters in recent years, it is unclear whether media outlets will necessarily dedicate greater resources to reporting on the family courts as a result of these changes. We look forward to seeing the results of the pilots.”
They were also supportive of proposals to produce more informative court lists, noting that the success of the pilots will depend upon “journalists and bloggers being able to identity cases that will generate wider public interest.”
On judgments, again the Committee fell in line with the proposals in the President’s report, but expressed some doubt as to whether sufficient resources would in fact be made available. They recommend that:
“His Majesty’s Court and Tribunal Service should ensure that the requisite resources are provided to enable the establishment of an anonymisation unit that facilitates the publication of at least 10% of Family Court judgments without the risk of identification of the parties involved.”
This report comes almost exactly a year after the publication of the Transparency Review. There is considerable synergy between the recommendations of the two reports, but what we really need to see is recommendations turned into actual reform. For that we continue to wait. The President’s reporting pilots will be rolled out soon, and hopefully the fact that a cross party Parliamentary Committee has recommended statutory reform (regarding s12) will carry greater weight than the voice of even the senior judiciary can realistically ever do.
You can read more about the broader context that the report sits in and some of the wider open justice issues affecting journalists across the spectrum of court reporting, in particular in the reporting of single justice procedure and possession hearings, in a piece written by Dr Judith Townend here.