Overall, the response is negative about any further publicity measures being introduced. Sources used are the experiences and views of Resolution members and the recent Brophy et al report. Resolution makes strong arguments for research and evaluations to be undertaken on a number of aspects of the current operation of the law, before more changes are decided. However, this response does not go in depth into suggestions for alternative ways of informing the public. Nor does it mention the significant problem of mis-information and constant breaches of privacy which occur on the internet.
A number of interesting practical points are raised. This is summary of the main observations:
1. Resolution is asking for full parliamentary scrutiny and public consultation before any changes are made.
2. There is a paucity of evidence of how the public really perceive family courts and how/whether this is affected if they become court users
3. Troubled by the undue emphasis on public law proceedings, because adults in private law proceedings are making their own financial or parenting arrangements, in which their children may have no input. Seems to be suggesting that these families have a greater claim to privacy. (The response of the Transparency Project did not differentiate between children and adults in private/public family court cases. We are aware that some of the most vocal allegations pf ‘secrecy’ come from the fathers’ rights movement.)
4. Discusses shortcomings of BAILII (similar to those identified by the Transparency Project)
5. Suggests that public confidence might be better met by establishing an independent inspectorate of the courts (whatever did happen to HMCI??)
6. Expresses doubts that mainstream media are best placed to be the public watchdog. Suggest a comparison be made between those cases reported on BAILII and in the media to evaluate how they are reported.
7. Solicitors acting for children are very concerned about how to explain to them that their evidence is going to be publicly available. Also, worry if there is no representation – who is going to explain to the child? Particular concerns re young people in secure accommodation etc. who may have been subject to sexual abuse & CSE – risk of jigsaw identification.
8. No standard practice in anonymising judgments. How is it done and by whom? (similar to points made by Transparency Project)
9. There is no evidence available of parents and adults’ views of any impact of the Practice Guidance.
10. Making documents available: Resolution points out the limited nature of individual court documents (‘snapshots’ rather than an overview); the President’s suggestion that lawyers will soon learn how to write media-friendly reports is rejected as being burdensome and self-defeating as client approval will have to be obtained and so the documents may not contain all the evidence they should; risk of satellite litigation about what will be disclosed; how will the communication and circulation of the information be regulated? e.g how will lawyers know papers have been destroyed when they should etc. Potential professional insurance problems.
11. Possibly the judge could synthesise documents into a neutral document for the media but this would be time consuming.
12. Resolution oppose any release of experts’ reports in children or finance proceedings.
13. Pilot on hearings to be held in public: Resolution cannot see any purpose for these and are unable to ‘cherry pick’ any type of case that is suitable.
This response raises some very tricky issues for practice but, contrary to the report in the Times, few that the President would not have foreseen.