The President’s Transparency Review has finally concluded. After a period long enough to gestate both an elephant and a human baby consecutively, was it worth the wait?
Our response is an emphatic ‘Yes’. The president has both acknowledged the massive, weighty, elephant in the room (the erosion in public trust and confidence and the importance of increased transparency to remedy it) AND has avoided throwing the baby out with the bathwater (anonymity and confidentiality will be properly respected and protected). The President has made good on his commitment not to let transparency sit in the box marked ‘too difficult’.
The elephant trap
At the outset of our written evidence to the review, we cautioned against adopting an overly simplistic, binary, all or nothing approach to transparency. This is one elephant trap the President has avoided :
A trap, and one into which I and, I suspect, many others may have fallen when first approaching this issue, is to see ‘transparency’ as raising a single question, ‘should the Family Court be open to the public and/or press’, to which there would be a single binary answer of either ‘yes’ or ‘no’. Experience over recent years, assisted greatly by the excellent work of the ‘Transparency Project’ and others, demonstrates that that formulation is very wide of the mark. There are in fact many ways that the Family Court can be more open, and provide more information about what takes place there, without altering the current restrictions on reporting and attendance. The publication of an annual Family Court report, greater publication of judgments, issuing of summaries of judgments, publishing daily court lists which are clear and more informative, are but a few examples. The Transparency Project has amply demonstrated that it is possible, within the current legal framework, to publish a range of information about the court and individual cases.
During this review I have, therefore, looked widely and thought laterally to try to identify changes both great and small which may increase openness in the system.
We knew when we read that passage that we were going to like what we read further down in the document…
The broad approach for the future : the need for much greater openness
The President sets out his broad approach under this heading – although we’ve slightly condensed the text, the below extracts give the flavour (a … indicates where we have left something out) :
The family courts are part of the overall justice system. ‘Open justice’ is a fundamental constitutional imperative, to which there may be exceptions…the current limited degree of openness does not permit effective public scrutiny. It is by openness that judges are held to account for the decisions they make so that the public can have confidence that they are discharging their important role properly. It is no longer possible to rely upon the factors against more openness to prevail so that the Family Court continues to be an exception from the ordinary imperative for open justice. The extent of the jurisdiction of the Family Court, and the volume of its caseload, means that the impact of its work is now felt by many, in a way which will have been beyond the contemplation of legislators over 60 years ago in 1960. The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects… the reasons for this conclusion are as follows.
… the current arrangements fall well short of being satisfactory in terms of affording at least an adequate degree of openness… Media representatives, who … may be in contempt of court if they seek to publish any information relating to the proceedings, have not attended the court to any significant degree. Secondly the  practice guidance … which required publication of anonymised judgments in certain categories of case and encouraged publication in others is, unfortunately, not being followed in many cases… The result of these two circumstances is that…the main body of the work in the family court is not open to any form of outside scrutiny or appraisal…
Justice taking place in private, where the press cannot report what has happened and where public information is very limited, is bound to lead to a loss of public confidence and a perception that there is something to hide. The Family Justice System is suffering from serious reputational damage because it is, or is perceived to be, happening behind closed doors. Further a lack of openness undermines accountability and allows the occasional poor practise to continue unchecked.
What has the President actually decided to do?
We have broken down concrete proposals for reform into a bulleted list :
- accredited media representatives and legal bloggers should be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear, subject to very clear rules to maintain both the anonymity of the children and family members, and confidentiality with respect to intimate details of their private lives.
- There will be no public access to hearings as there usually is in the Court of Protection. Hearings will continue to be in private. For the present, at least, the focus should be on establishing a workable regime that permits and facilitates press and legal blogger reporting of Family cases.
- There will be a Transparency Implementation Group (TIG) to support the President in leading the changes.
- There will be rule changes that will allow journalists and legal bloggers to attend Family Court proceedings and report on what happened :
- The starting point will be reversed to one that allows reporting, but it will always be in the judge’s discretion whether in a particular case all non-parties should be excluded, and reporting must always be subject to anonymity of the children and their family.
- There will be guidance on how this is to be achieved.
- ‘Active consideration’ will be given to incorporating or adapting the proposed Family Court Reporting Pilot which has funding from the Rowntree Foundation, into the new scheme (NB this is a pilot which our member Louise Tickle has been leading on, in consultation with Lucy Reed. Details can be found here (scroll down – doc marked Open Justice Family Court reporting pilot – rationale, though the draft pilot has progressed and evolved substantially since these drafts were published).
- The President notes that these rule changes will be subject to Government / ministerial approval. We think however, that it is very likely that this document will have crossed the desk of the Lord Chancellor before publication and so in broad terms there is unlikely to be major opposition.
- The above changes will be by way of a pilot in two local authority areas (one rural, one urban)*.
- There will be monitoring
- of the reporting both locally and nationally, and where clear misreporting occurs, it will be taken up with editors.
- The Family Justice Young People’s Board will be invited to advise about and monitor the views of the young people involved in the cases in the pilot courts.
- There will be forums established for discussion between the family judiciary locally and nationally. This will include :
- the TIG,
- a Media Liaison Committee (journalists, media lawyers and judiciary, and others – we hope this will include legal bloggers!)
- links to be built between Designated Family Judges and local media and MPs so that a better understanding of the Family Court can develop over time.
- There will be monitoring
- There will be a consultation about the detail of what documents should be given to journalists and legal bloggers – the President expresses a preliminary view that this should normally include position statements and witness statements but not medical reports or primary documents such as police disclosure. Implicitly, he seems also to support the sharing of skeleton arguments, though the wording is a little unclear. In all cases the judge will have a discretion to withhold documentation, if necessary on the facts of the case. This is broadly in line with the framework set out in Louise Tickle’s proposed pilot that the President is considering adopting.
- Journalists (and bloggers) will be prohibited from identifying the child, and from publishing other identifying data (for example school or locality), and they will not be allowed to publish detailed evidence of abuse. There will be guidance issued about this, but there will be judicial discretion to adjust the default position. Again, this is broadly in line with the draft pilot scheme. We hope that a prohibition on publishing locality will not include a prohibition on identifying a local authority or court centre (unless justified and necessary in a specific case) but the President is going to consult further on this issue (see below).
- Practice directions 12G and 14E, which regulate what information is allowed to be communicated about children cases, are going to be amended to allow a party to discuss a case with a journalist or legal blogger, although that information could still not be published by the journalist or legal blogger without permission. This is important because it will facilitate and support reporters attending more hearings on an informed basis – and should in turn facilitate more and better reporting of cases.
- On the topic of publication of judgments, the President sets out that in most cases there will be no legitimate reason for the public to be given detailed evidence of child abuse. He is going to consult on how best to ‘achieve an outcome where detailed accounts of abuse simply do not appear in any published judgment’. There are various practical proposals set out in the review document.
- The President’s various Guidance documents in this area need to be revisited and consolidated to ensure the guidance is consistent and properly balances the competing need for greater transparency with protecting anonymity and avoiding salacious detail becoming publicly available. We had invited the President to do this, as the guidance seemed to pull in different directions in some areas. The President confirms that the purpose of the revised guidance will be to allow general access to knowledge of how the court approaches the mainstream of cases, not just high profile cases or those raising the most serious issues. Judges will be given straightforward advice on how to approach anonymisation. There will be further consideration and consultation on the question of naming local authorities, treating clinicians, social workers and experts.
- ALL judges (not just Circuit Judge and above as in the existing 2014 guidance) will now be asked to publish anonymised versions of at least 10% of their judgments each year. This will be a very significant increase on present output, which is minimal.
- There needs to be ‘further consideration’ of the position in respect of Magistrates decisions (we’d suggested that these could easily be produced in an anonymised form and published).
- The President will ‘press for the establishment of an Anonymisation Unit within HMCTS which will undertake the task of anonymisation’. The absence of this unit is one of the reasons why the target cannot be higher than 10%. Again, we had proposed that this unit should be established, both to support more publication and to properly support good anonymisation practice and thus protect children.
- In Financial Remedy proceedings it is proposed that there will be a ‘standard reporting permission order’. There will be a short consultation period until 26 November. We like the sound of a reporting permission order, which, judging from the name, will amount to a reversal of the current starting point of no reporting encapsulated in the more usual ‘reporting restriction order’. We like the idea of being told what CAN be published rather than having a cryptic description of what can’t.
- The President is proposing a scheme of compulsory data collection at the end of each case, via a web based tool which the TIG and HMCTS will devise and trial.
- In future, lists will be made available in advance to journalists and legal bloggers. Those lists will identify the general nature of proceedings, category of hearing and time estimate (we’re not actually sure how much this advances the position as court lists do usually hold most of this information, albeit in a coded form via the case number, that journalists may not be able to decrypt).
- The President seems also to support our proposal for an online family court information hub, though it isn’t immediately obvious from the review when or how this proposal is going to be taken forward. The wording sounds somewhat aspirational.
- There will be an annual report of the operation of the Family Court, including data setting out case numbers, categories of proceedings and outcomes. The report will include an annual audit on the progress of various initiatives that are now to be launched under the overall umbrella of ‘transparency’. We think this is a great idea and has potential to be much more informative than the quarterly statistics published by the MOJ/HMCTS.
What about anonymity?
The President hasn’t forgotten this. He is ‘both clear and firm’ that
Greater openness must not be at the expense of the interests of children…. The anonymity of children needs to be preserved full stop the welfare of children is what much of family justice is about… there is no doubt that the vast majority of children involved in these cases do not want to be identified and want to maintain their complete anonymity…It is, however, of note that there is no evidence of children actually being harmed [by identification on the internet]. In any event, in my view it is possible to maintain the privacy of those children, whilst at the same time operating a much more open justice system…. I accept, That, in the long term, holding a system up to greater transparency will benefit children by driving up standards and increasing public confidence. But the children going through litigation are unlikely to see that wider picture. Therefore it is critical that full protection is in place for them, and where possible the scope of transparency is explained to them.
We commend this approach. One of the points we made in the oral evidence session was that there was a need for those representing and working with older children to become used to discussing these issues with them so that they could give informed consent or make informed objections to publication of information about their case. We suggested that Cafcass might develop materials to support professionals in that important work.
The President is also clear in his proposals for the publication of judgments that there will need to be restrictions on publication of the detailed descriptions of child abuse.
What about s12?
The President does not shy away from the difficult issue of s12 Administration of Justice Act 1960, the piece of law which silences those who want to talk about what has happened in a family court case by making it a contempt of court to publish ‘information relating to the proceedings’ without the permission of the court. The President steers a careful line here, expressing some forceful views without stepping on the toes of Parliament, who ultimately will need to decide what to do about this decrepit piece of law:
The 1960 Act was concerned to protect and support the administration of justice…I have concluded that s 12 has the contrary effect of undermining confidence in the administration of Family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the judiciary. I do however support calls for urgent consideration to be given by government and Parliament to a review of this provision.
Pressure to look at s12 has been building for some time – see this call for the Law Commission to consider its reform. We hope that the Justice Committee Open Justice Inquiry, to which we have submitted written evidence, will look at this issue.
The proposals to change the rules and to run a pilot are essentially work arounds s12. We will have to wait and see whether or not those work arounds are sufficient to obviate the need to reform the legislation or not.
This is not coming to a court near you next week. It will take a while to get through the system and much of it will be trialled first. But make no mistake, it is coming – and the very clear signal is that these reforms are signalling the need for a shift in culture. That means that we should expect to begin to see green shoots of a change in attitude from those working in the Family Justice System, as they adapt to what is on the horizon, and perhaps also from some parts of the media. Lawyers, judges and social workers should begin getting themselves up to speed and thinking about how changes to their practice might be required.
We very much hope that these reforms and the clear signals about the direction of travel will give more lawyers the confidence and motivation to become legal bloggers – both as a means to support transparency and as a means of personal professional development. More information about legal blogging can be found here.
The report concludes by saying that the President is now going to consult and seek comment on the proposals made, but does make clear that this will be a ‘short’ consultation process (hopefully less than an elephantine gestation period), and that it will be about the detail, not the overall direction of travel. The TIG will then establish trials of the changes before wider implementation.
If we have one quibble about this document, it does not give us a full list of who submitted written evidence, though it does tell us who gave oral evidence. It would be interesting to see what other organisations provided responses, albeit that there are probably good reasons why naming individuals who have responded might be less appropriate.
Our response to the review?
We are thrilled with this outcome. It vindicates the hard work that the team of volunteers at The Transparency Project have put in to raising the profile of transparency issues, and into thinking hard about how it can be responsibly achieved. We are only too aware of current levels of distrust and mis-information about family courts and we can see great potential here for addressing that.
It’s important to acknowledge that The Transparency Project is a collective effort – the team is made up of volunteers who give their time, energy and expertise to try and help make family justice clearer, for the benefit of everyone. Many people worked hard on our written evidence submission to the review, and our core team, our wider pool of writers, our Patron HH Clifford Bellamy and our supporters have all made important contributions to making this change finally happen.
It takes a village. This is an important moment, and it will make family justice better.
For those who want to read it in full, the Review has been published on the judiciary website, along with the separate document concerning the Financial Remedies Court. We hope to be able to publish a post about those proposals shortly, too.
You can view the oral evidence submitted to the Review here.
*An earlier version of this post suggested the pilot will be 18 months long. In fact, the review doesn’t specify a duration. That’s our error.
Feature pic : elephants by Grrrl on Flickr (creative commons licence – thanks)
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