Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the July 2018 issue, [2018] Fam Law 917.
A sequence of lectures delivered about – or touching upon the subject of – transparency have been delivered in recent months. At a moment when regime change in the family justice system is imminent, and transparency enthusiast Sir James Munby prepares for a retirement out of the spotlight, is there any consensus about transparency – and what is the direction of travel?
In March, journalist Louise Tickle delivered her hard-hitting lecture, ‘How information technology and modern communication systems are affecting journalism and family law’, in memory of Bridget Lindley (covered in May [2018] Fam Law 505). A year earlier, Sir Andrew McFarlane, soon to be taking over from the outgoing President of the Family Division, delivered the first Bridget Memorial Lecture – and even then there was an emerging acknowledgment of the need to do something about growing public mistrust of who we are and what we do in the ‘secret family courts’. If there had been any lingering doubt after the first Bridget Lindley lecture, there was none after the second; Louise’s passionate rendering of the screams of pain filling her inbox from grieving and distraught parents was a vivid reminder that this is not going away. That will be talked about whether we turn our backs or not.
And then in May 2018 Lady Hale stepped up to the plate with her memorial lecture – this time in honour of the late Sir Nicholas Wall (himself a proponent of transparency) – on ‘Openness and privacy in family proceedings’ (to be published in the August issue of Family Law). Although in large part her lecture was an exposition of the current legal framework, she emphasised two things in particular: the need to be mindful of the views of children, and the need for reform (if not abolition) of the unworkable s 12 of the Administration of Justice Act 1960 (AJA 1960).
Later in May I had the unenviable task of trying to cover the same topic with Lady Hale’s lecture still fresh in my mind, and Sir Andrew McFarlane sitting a few feet away, at the Bloomsbury Family Law Conference. Following on from Lady Hale, I suggested that we need a better evidence base than the studies involving the views of selected focus groups of children – we need to ask more children for their views. Sir Andrew told those present at that conference that Sir James still planned to reveal a further transparency consultation before he retired. As this issue of the journal goes to press (mid-June) we have not heard any further.
And, finally, on 24 May, Gresham Professor Jo Delahunty QC delivered the last lecture in a series about the family court, ‘Transparency in the Family Court: what goes on behind closed doors?’ (to be published in a future issue of Family Law). Drawing together all those strands and acknowledging the complexities and irreconcilable tensions where the privacy and protection of children is concerned, Professor Delahunty argued that while we need to take great care to heed children’s wishes and to protect them from the adverse consequences of publicity or the fear of it – we also need to respond to the tide of mistrust before it infects our system. She spoke of a phenomenon of lawyers having to spend time with clients unpicking their worries and misunderstandings or suspicions about the law and the process and the actors in it, before getting down to the real job of advising their clients. We can no longer take respect and trust for granted and we must earn it and we must engage. She concluded with a call for more and better research on the wishes and experiences of children. Her view was that we need to move beyond the repetitive reference back to helpful but small scale studies, and gather more and better information about what children think and what their experiences of being the subject of published judgments have been. We may find that those children sampled so far are typical and representative or we may find a more varied pattern, particularly if we talk to children about the bigger picture that has been so comprehensively described by the speakers through Professor Delahunty’s series of lectures about transparency and about trust.
It is worth remembering that in 2010, just after the press were granted access to family courts, the Children’s Commissioner for England published a study called ‘The views of children and young people regarding media access to family courts’ by Julia Brophy, which set out the views of a sample of 51 children about the then recent decision to permit journalists access to the family courts. That was a comparatively large sample group given the difficulties inherent in such research, but the study was designed to inform the passage of Jack Straw’s highly controversial reforms in Part 2 of the Children Schools and Families Bill 2010, The worries expressed by the sample group were at that stage prospective and may well have reinforced the consensus at the time that Mr Straw’s proposals were unworkable. In any event, the legislation fell by the wayside and was repealed without ever being brought into force. The absence of any follow up research at such scale since is a clear gap in our evidence base. Were the children right to be worried? Did their fears come to fruition?
When evaluating the effects of the President’s January 2014 transparency guidance to judges, the researchers at Cardiff University sought views from professional bodies and groups that represent children. There were interesting contributions from the Young People’s Family Justice Board, NYAS, and the Law Society Children Sub-committee, but on the whole, this was low take-up on the issues (see May [2017] Fam Law 549).
A consequence of reform in this area being judge-led where Parliament fears to tread, is that guidance is not backed with resource from central Government. Thus we find that in the Court of Protection the long running Transparency Pilot was transmogrified into the rules without any evaluation of the impact upon the person concerned in the proceedings or his/her family, and the transparency guidance in the family court has not been evaluated from the specific perspective of children or families. (The Cardiff research has useful findings on what judges were doing but did not have the scope to contact children or families directly). How interesting it would be to find out about the experiences and views of the children whose judgments have been published, or whose cases have been covered by the media, or the views of the many more whose cases have not been touched by these issues at all.
In conclusion, we can only agree with the view of Peter Jackson LJ (then Peter Jackson J) expressed in July [2017] Fam Law 701:
‘I accept that we cannot demand proof of inevitable harm before taking account of the risk of harm, but at the moment there appears to be little evidence (as opposed to apprehension) that greater openness has led to significant problems for families, or is likely to do so in the future.
I believe that those who argue for confidentiality to be strongly prioritised overlook the wider consequences for individual families and for all families.’
The adverse consequences of a degradation in trust and confidence in the family justice system affect not just parents but also the children at the heart of its work because children’s wellbeing cannot be severed from the consequences of their parents’ beliefs, fears and actions.
Although reform of s 12 of AJA 1960 is not on the cards, we were interested to hear from the incoming President in May that the outgoing President has not yet abandoned his plans to issue a further transparency consultation before his retirement. As to what that might contain, we dare not speculate – but we hope that it will have been published by the time this piece is read.
PUBLICITY IN THE ALFIE EVANS CASE
The publicity that surrounded the court hearings and even the hospital where Alfie was being treated in recent weeks may strike a chill for those who believe that our courts need to be more open. However, the issues here are very complex, as they were last year regarding Charlie Gard, and it is understandable that the children’s parents sought public support. At The Transparency Project, as elsewhere, we struggled to reconcile the varying views, but hope we have reflected these in our well-received blog posts from Project members (academic Polly Morgan and barrister Sarah Phillimore) and barristers Katie Gollop and Sarah Pope, and social worker/solicitor/academic Allan Norman. These can be read on our site, dated 18 and 22 May. The Transparency Project website is at http://www.transparencyproject.org.uk. As ever, we are happy to receive guest blog posts from anyone willing to enter into conversation with colleagues and with the general public about matters around family law and justice.