This is the text of a speech delivered at the at the At A Glance Conference in London on 13 October 2021, reproduced with kind thanks to Sir James Munby.
I am a mere lawyer. I am neither a reporter nor a journalist, though we will shortly be hearing from a distinguished practitioner of each of those arts. But emboldened by the thought that the reporter or journalist in court is, as has famously been said, acting as the eyes and ears of the public, and doing what anyone with the time, inclination and resources could do for themselves, I hazard the hope that what I have to say may, perhaps, illuminate the topic.
I must start with an important health warning. The President has yet to publish the outcome of his Transparency Review. In his July 2021 View from the President’s Chambers, para 13,  Fam Law 1119, he told us that his intention was to publish his conclusions at or soon after the end of July. That time has come and gone. An update published on 3 August 2021 told us that the findings of the Review would be published “in October”. That is good news. We do not know what the President will be saying. So everything I say has to be subject to that caveat.
Transparency has become the vogue word in recent years. It is constantly on our lips, but what does it mean? For present purposes, I suggest, it involves two things and serves two vitally important public interests: accountability and accessibility. There is an important link between them, because proper accessibility enables there to be proper accountability – indeed, without proper accessibility there can be no proper accountability. But what are they?
Accountability is a simple concept which requires little explanation or elaboration: fundamentally it is that public bodies and public officials should be held to account and, where appropriate, criticised (or praised as the case may be). In the context of children cases there is a need to hold public bodies such as local authorities or CAFCASS to account. In the context with which we are concerned today – the Financial Remedies Court (FRC) – the focus is on the Ministry of Justice (MoJ), Her Majesty’s Courts and Tribunals Service (HMCTS), and the Family Procedure Rule Committee (FPRC), as well as, of course, the judges.
The principle here is that expounded by Louis D Brandeis (not yet appointed a Justice of the US Supreme Court – that was to follow in 1916) in the justly celebrated passage with which he begins Chapter V, What Publicity Can Do, in his collected essays, Other People’s Money and How the Bankers Use It, published in 1914:
“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. And publicity has already played an important part in the struggle against the Money Trust.”
In relation to the judges, Bentham in a classic passage says:
“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.”
Accessibility needs more elaboration. It has two components:
- In a general sense, it means making the justice system comprehensible to the general public, including the media. Here the two most important issues are access to hearings and access to judgments.
- In a narrower sense, it means making the justice system comprehensible to those who need to use it, so that they can understand what is going on, what is happening to them. And, if they are litigants in person, so that they can understand how the court is likely to approach their case and what they need to do in processing and presenting their case. Here the two important issues are access to the key materials and access to the process.
Crucial to improving and ensuring accessibility, I want to suggest, is the need for simplification – the simplification of both the substantive law and, much more pressingly, the procedural law. Particularly in its narrower sense, accessibility as I have defined it is a fundamentally important aspect of the wider principles underpinning access to justice and, indeed, the rule of law. As the Strasbourg jurisprudence has long made clear, the rule of law demands that the law be “accessible” to those who are subject to it, so that they may know (if need be with appropriate advice) how to regulate their lives.
Essential to all this in the modern world, it ought to go without saying, is the maximum use of modern IT.
Do MoJ and HMCTS have a sufficiently ambitious and appropriately speedy programme for maximising the use of IT in FRC? No.
Is FPRC meeting its self-proclaimed, indeed in accordance with section 75(5) of the Courts Act 2003 its statutory, objective of “securing that the family justice system is accessible, fair and efficient, and the rules are both simple and simply expressed”? Only a very traditionally minded lawyer could think that the answer to this is anything other than a sorrowful No.
[A digression. Rapid implementation of modern IT was, of course, at the heart of the ill-fated Court Modernisation Programme, introduced with such fanfares and high expectations in September 2016. An important component of this was the proposed Online Court recommended in July 2016 by Lord Justice Briggs in his Civil Courts Structure: Final Report. Allied to this, there was to be a new Online Rule Committee separate from the existing Rule Committees. And what has become of it all? We find the answer in this sad report (para 16.2) in the Minutes of the meeting of FPRC on 14 June 2021: “The Committee asked whether any further progress had been made in establishing an online rules committee which will have the remit in providing separate rules for online procedures. MoJ Legal said that this is on the list of future considerations for new primary legislation, but there is no present certainty about this being taken forward.” So much for all the great hopes and ambitions. Court Modernisation has achieved far too little of what was envisaged. Judged overall, it has failed. Future generations will, with every justification, condemn us for our failure.]
In relation to access to justice, there is one ongoing debate of particular significance to my theme: that about remote-working. This is currently the subject of work by a team led by Baker LJ: see the July 2021 View, para 7. It would seem that his team has not yet reported, nor is there any indication as to when it will. We need to know.
On the general issue of remote-working, I need today to make only four points:
- The idea that, once we have managed to put COVID behind us, the courts will, or even can, expect to return to the status quo ante is absurd, tantamount to the idea that in 1946 the country could simply go back to how things were in 1938.
- We need a debate infinitely more subtle, analytical, nuanced and sophisticated than anything which, so far as I am aware, had occurred pre-COVID.
- We need to recognise, and this is crucially important, that the (sometimes complacent) views of professionals – judges, lawyers and others – are not always shared by litigants. That is one of the most important messages emerging from the three consultations carried out by the Nuffield Family Justice Observatory at the invitation of the President of the Family Division into Remote hearings in the family court. As it happens, a similar disparity of view has emerged in the HMCTS Evaluation Findings in relation to the Flexible Operating Hours Pilots published in July 2021. According to the almost impenetrable language of the executive summary:
“indicatively positive impacts of the … pilots were found for the access to justice and experiences of public users domains of impact, indicatively negative impacts found for working lives of legal professionals and equality and diversity, with no/neutral impacts found for the remaining four domains of impact.”
The message from all this is pretty clear: those designing systems for remote working in the post-COVID world need to take into account the views of both professionals and litigants. The views of the two groups may differ and their interests, as the HMCTS Evaluation Findings show, may conflict. The decisions may be difficult, but that is no reason why the views of litigants should not be given great weight. After all, to put the point starkly: For whose benefit does the system exist – the lawyers or the litigants? Surely the latter.
- Finally, we cannot assume that what is appropriate for civil cases will be equally appropriate for family cases; nor, within the family justice system itself, that what is appropriate for children cases will be equally appropriate for money cases. My own view, for what it is worth, is that it almost certainly is not. It is therefore vital that whatever model for future remote working is applied in FRC is the one which best suits the specific needs and requirements of FRC and its litigants.
This last point I believe to be fundamental. We know that a report on remote working in FRC was commissioned from a Working Group chaired by HHJ Stuart Farquhar and that the Working Party has delivered its report: see the July 2021 View, para 7. Why the report has not been published we are not told, nor when it will be. We can only await its publication, with eager anticipation. I hope that we will not be disappointed.
Accessibility to the public and media
I start with accessibility to the public and media and with their access to hearings.
There are many points I could make but I focus on two.
First, there are the implications for accessibility – for transparency – of remote working. As I said in my Submission to the President’s Transparency View (see  Fam Law 923, 926, 927):
“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 new breed of tweeters, bloggers and freelance journalists is far removed from the traditional stereotype … they are informed and diligent … 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.”
I went on, referring to the recent opening up of the Court of Protection:
“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.”
My own assessment is that the work of the Open Justice Court of Protection Project, although appropriately critical when the occasion demands, has led, overall, to a much deserved and very welcome enhancement of the public standing both of the Court of Protection (COP) and of Hayden J, its Vice President. Increased public understanding of how COP operates has brought with it an enhanced standing of COP in the eyes of the public. What reason is there to fear anything different for FRC?
Wrapped up in this is a profoundly important point about remote working. Professor Kitzinger has recently reported (@KitzingerCelia, 9 September 2021) that she has now ‘attended’ no fewer than 223 remote hearings in COP. The point is that it would have been impossible for her to have attended that number of hearings if they had not been remote. Bloggers and freelance journalists have neither the time nor, I imagine, the financial resources to spend their lives traipsing round the country to watch traditional hearings. The point is that remote working vastly enhances the ability of bloggers and journalists to ‘attend’ hearings and is thus a vital tool in making the courts more accessible to the public.
It is, I suggest, of vital importance that those designing models for future remote working have this at the forefront of their thinking.
I note that this is something – “The effect of court reform and remote hearings on open justice” – which the Justice Committee, a House of Commons Select Committee, has included in its terms of reference and recent call for evidence in its latest inquiry, Open justice: court reporting in the digital age.
The second point arises from the well-known complexity of the various restrictions which apply to the reporting of proceedings in FRC: some statutory, as for example, the Judicial Proceedings (Regulation of Reports) Act 1926; some not (see Clibbery v Allen  EWCA Civ 45,  1 FLR 565,  Fam 261).
A welcome innovation in COP, which lies at the heart of the very successful move to open it up, has been the crafting of a standard Reporting Restriction Order (RRO). This RRO, applicable in all cases unless the court otherwise directs, helpfully identifies, despite its somewhat negative label, both what cannot and what can be reported, thereby avoiding the need for endless debate about the meaning and reach of section 12 of the Administration of Justice Act 1960. Is there not a need for a similar form of order for use in FRC which would enable us in the same way to ‘park’, to bypass, analogous debates about the reach of the 1926 Act and of Clibbery v Allen? I think there plainly is.
Accessibility to the public and media and their access to judgments
Next, accessibility to the public and media and their access to judgments.
Again, there are two points I wish to raise.
First, is the fact that published and reported judgments from FRC are overwhelmingly confined to those in ‘big money’ cases, whereas the vast bulk of cases in FRC are of much more modest proportions, and thus fall to be determined by a different approach, the focus being on meeting need rather than equal division. This means that perceptions and understanding of what FRC is doing are seriously skewed.
What is needed is the publication on BAILII (not necessarily reporting in a law report) of many more judgments in these more typical cases, including, I emphasise, judgments by Circuit Judges and District Judges. This is not because such judgments will usually constitute citable precedents (which is why I am not advocating that they be reported) but because it is important for the public to be able to see how FRC is operating and because the publication of such judgments will enable litigants and their advisers to have a better ‘feel’ for how the judges are dealing with such cases.
Secondly, and building on such thinking, there is, I suggest, a vital need for a publicly accessible case-law database. The principle here is simple: key data from every FRC case is collected and then presented, anonymised, in a standard format available to all. One thinks, for example, of the standardised case reports in Current Law showing the damages awarded in personal injury (PI) cases. Other examples which spring to mind are, for PI, Kemp and Kemp and, for criminal law, the Sentencing Encyclopaedia.
Initially this can be done manually, by filling in a pro-forma requiring little time to complete, most of the relevant data being gathered by either ticking or entering figures in boxes. Of course, once there is proper IT the entire exercise can be automated. And proper IT would enable the database to be used, if desired, as a predictive tool. In response to feeding in the relevant data from the case, modern AI, which, like it or not, is going to play an increasingly important role across the justice systems (as the Master of the Rolls has recently been explaining), could produce an indicative answer as to what the court might do in a particular case.
I claim no originality for these ideas, which, as appears from recent editions of At A Glance (AAG), have emerged from a joint project of the FRC judiciary and the Law Commission. The original account (AAG 2019-2020, iv) provided an upbeat explanation of what was proposed, suggestive of early implementation. It predicted “far more cases settling, and a freeing up of resources in the family justice system generally” and said “It is a radical idea, whose time has now come.” I could not agree more.
Yet nothing, so far as I am aware, has been achieved. Why not?
A year on (AAG 2020-2021, 31) it was reported that the project “has proceeded slowly” and expressed the hope that “progress will be made in the current year.” A further year on (AAG 2021-2022, 36) it was reported that the project “has stalled” and that “At present the focus is on devising a new Form D81 [which] will be the foundation for the development of the essential data collection tool for the … project.” The hope was expressed that the project could move forward “during the current year.” Has it?
The Minutes of FPRC provide fitful if far from re-assuring illumination. The Minutes for the meeting on 8 February 2021 record (para 14.3) MoJ Policy saying that ongoing work on Form D81 form was “subject to … resource issues.” The Minutes for the meeting on 8 March 2021 record (para 17.2) that “a revised version of the form would be sent to the Committee before its next meeting.” The Minutes of the meeting on 19 April 2021 do not record that as having happened. The Minutes of the meetings on 10 May 2021 and 14 June 2021 are silent. The Minutes of the meeting on 5 July 2021 (the most recent available to the public; the Minutes of the meeting on 4 October 2021 have not yet been published) contain this dispiriting report (para 21.2): “MoJ Policy provided an update on the D81 form. It was confirmed that work on this form has been delayed as the team dealing with the Divorce, Dissolution and Separation Act 2020 have not been able to commit resource to it.” I despair.
In the nature of things, the case-law database project requires the support of MoJ and HMCTS. But is the necessary vision and commitment to be found there? I should like to think so, but the cynic in me and the melancholy history I have set out warns against optimism.
In a world where legal aid is unavailable for many who have to litigate in FRC, and where many are thus compelled to act as litigants in person, a case-law database would be an invaluable tool. Is it too idealistic to think that it would enhance the administration of justice in FRC while at the same time saving money – public money? I think not. Rapid implementation ought to be a priority, whatever MoJ may think.
Accessibility to court users involves, as I have said, access to the key materials and access to the process.
Proper access to the key materials requires four things:
- TOLATA and I(PFFD)A claims need to be brought within the jurisdiction of FRC. This necessitates changes to primary legislation of the utmost simplicity which for some unfathomable reason have been rejected by MoJ.
- There needs to be a rationalisation so that a single set of Rules and Forms apply to all financial remedy claims.
So far as possible, this should precede further work on IT. To design IT system around rules and processes destined for early change is surely short-sighted and inefficient.
- Simplification: The Family Procedure Rules 2010 (FPR) are unnecessarily detailed, long, complex and impossible for the layman and litigant in person to understand. The Red Book is a masterpiece of traditional legal publishing but its very length and dense detail is – no criticism of the editors who have to try and make sense of it all – a standing reproach to the current and unacceptable state of the law. The Financial Remedies Practice 2020-2021 is a truly remarkable work, far exceeding in the quality and detail of its coverage both the Red Book and the White Book. Yet despite the pruning described by its editors, the main text alone runs to some 880 pages. Again, there can be no criticism of the editors, but how, taking a detached view, can it sensibly be said that this makes the practice of FRC accessible in any save the most formal sense – ‘here is the book you need; make of it what you will’ – to ordinary people and litigants in person. Two things are desperately needed:
- In the long term – and this, if it ever happens, will takes years, for the naysayers are a powerful lobby, and it would probably have to proceed in parallel with a comparable exercise in relation to the equally indigestible CPR – re-writing FPR so that they are shorter, simpler and written in plain English. This, after all, is what section 75(5) of the Courts Act 2003 mandates. As a more immediate task, everything should be done to reduce the number and simplify the content of the Forms.
- As an immediate priority, the preparation of a Guide to FRC, explaining in plain accessible English how FRC operates and how one brings or defends a case in FRC.
I note that the Minutes of FPRC (see, for example, the Minutes of the meeting on 19 April 2021 (para 4.1) and the Minutes of the meeting on 10 May 2021 (para 4.1)) refer, under the heading Accessibility of Procedure Rules, to the production of summaries of FPR. We are told that “drafts are undergoing a high-level review although this is being undertaken in the midst of other priorities.” While this is, no doubt, welcome from one point of view, it merely goes to demonstrate just how far FPR are from being “accessible, … simple and simply expressed.”
- Digitalisation: All these materials need to be presented in digital form with appropriate use of, eg, hyperlinks and other digital tools.
- Publication: The ‘official’ websites – those provided by MoJ, HMCTS and the Judiciary – are better stocked and more easily searchable than previously, but they have their limitations. Crucially, there is, so far as I am aware, no single website providing free access, for anyone who wants it, to all the materials relevant to FRC. What is needed, I suggest, is a dedicated FRC website containing, or providing links to, everything needed by a user of FRC, professional or lay. This might include, for example, in addition to the proposed Guide to FRC, the relevant:
- Rules and Practice Directions,
- Judicial Guidance issued by the PFD or by the Judge in charge of FRC,
- Non-judicial guidance issued by the Family Justice Council (eg that prepared by the groups chaired by Roberts J and Francis J),
- The Standard Family Orders applicable to financial cases,
- Published judgments, and
- The case-law database.
An accessible process for court users using state-of-the-art IT and digital processes is both necessary and achievable. There are two aspects to this:
- One is the outward-facing process by which the litigant interacts with the court – for the future, on-line, rather than by post or email.
- The other is the back-office process (increasingly computerised and with little or no human input except where a judicial decision is needed) by which the court processes its cases and its orders.
A major requirement is a process which permits the complete administrative separation of divorce (and cognate processes) from financial remedies.
We must harness the full power of modern IT in every part of the system. I draw attention to two key requirements:
- Electronic generation of orders using interactive electronic forms of order which enable some parts to be automatically populated and others to be completed using ‘drop-down’ boxes.
- Electronic generation of spreadsheets and other forensic tools from underlying case data.
This is all perfectly feasible, as the availability of commercial products so clearly demonstrates: consider the wonderful electronic tools provided by Class Publishing. And individual judges with particular IT skills have arranged for such tools to be made available to their brethren and, I understand, are now working to extend what is available to the judges of FRC. This is much to be applauded, but it only goes so far, for these tools are accessible only to the judges. They should also be made accessible to litigants, but the responsibility for that cannot rest solely with the judges. What is needed, and I fear is lacking, is commitment and a proper sense of vision and urgency on the part of MoJ and HMCTS.
It is good to be told (July 2021 View, para 16) that the Farquhar Working Group has now moved on to consider “procedural and efficiency improvements to the conduct of the business of the FRC”. Key to this, as will be apparent from what I have said, is the need to harness and exploit the most up-to-date IT.
My vision is of FRC as a flagship for the modern 21st century digital court, a court which has finally abandoned the paper processes more characteristic of the world of Dickens.
If I may be allowed to say so, FRC is blessed with a gifted and determined judicial leadership, both national and regional; a dedicated corps of dedicated and enthusiastic judges; and a national and regional structure which ought to be the envy of less fortunate parts of the system. With all that going in its favour, why should the vision not become the reality?
STOP PRESS: It was announced at the Conference that both reports of the Farquhar Working Group were to be published imminently. That is very welcome news.