In a piece entitled The Transparency Delusion, published on the Stowe Family Law blog, John Bolch argues that the whole idea of transparency in family law proceedings is futile. He says there will always be those who have axes to grind against the family justice system, and:
“we live in a world where he who shouts loudest is often the only one that is heard. The idea that there is something corrupt about the family justice system has therefore gained a level of general acceptance amongst a large proportion of the public, fuelled by certain quarters of the media. ”
While conceding that it was well intended, he argues that the President of the Family Division, Sir James Munby’s recent guidance, requiring courts to publish judgments wherever there is no good reason not to, is a waste of time because the journalists who report on stories will still just choose the angle they want to flare up and ignore the inconvenient subtleties. He cites as an example the recent case with headlines suggesting that a couple had had their son taken into care simply because they were heavy smokers. In this he is right, for even The Guardian, which carried the more nuanced details of the decision, headlined their version Two-year-old boy from ‘smoky house’ to be placed for adoption. The story actually came out of the published judgment (in Re AB [2015] EWFC B58) , but although the Guardian’s first story tried to provide some context and balance, reflecting that smoking was an issue but not the major one, the headline put on the piece gave it a completely different slant, and that was the slant that all subsequent press stories focussed on. The story is reported in a rather more rational way by Stowe Family Law, under the neutral heading Parents fail to win care of their son and the same blog commented on the way the press mis-handled the story under the title Where’s there’s smoke there’s fire.
This is exactly the sort of press “story” or distortion of the truth that the President’s transparency agenda was designed to avoid; and it is also exactly the sort of thing we here at the Transparency Project would normally address, and with gusto, except that I think we were all a bit preoccupied last week with our one-day multi-disciplinary conference, Is the Child Protection System Fit for Purpose? However, one of our number, who blogs as SuesspiciousMinds, did cover the story very fully in a post, Smokey and the Bandit – “boy adopted due to smoky house”, the day after the Guardian had lit the blue touch paper.
Moreover, we’ve addressed this kind of issue repeatedly for other cases, and we do all believe in it as a core part of the Transparency Project’s mission. It was, therefore, quite disappointing to see John Bolch in the same article suggesting our efforts are futile and probably just a “waste of time”:
are the transparency promoters knocking their heads against a brick wall? Is the whole concept that transparency will improve public understanding of the family justice system a delusion?
It was nice at any rate to have been described, perhaps slightly patronisingly, as “very well-meaning and dedicated people”. Let’s hope we can be more than that, and actually achieve something. We know we can achieve things in the the way we did with last week’s one-day conference, which feels like the start of something really hopeful, breaking down the barriers between professionals (sometimes in rivalry with each other, or jealous of their turf) and the families and children the child protection system is supposed to be helping.
We can and should do more, in the way we already have, to set the record straight when the axe-grinders tell their tales.
It may seem whimsical, but I want to use a version of Hans Christian Andersen’s fable, “The Emperor’s New Clothes” by way of illustration. (Normally I hate it when people do this, usually to say modern art is rubbish or something cheap like that, so if I’m guilty of the same thing I will have only myself to blame.) (And no, the emperor is NOT the President.) In the story the emperor is so gullible that he allows himself to be flattered by a group of wily clothmakers into believing that a non-existent new suit of clothes is actually a marvellous set of fashionable garments, the envy of all who look upon them. The clothmakers here are the press, who flatter their gullible readers into thinking they, and only they, have been offered the truth about what’s really happening out there. Actually, the clothmakers are not just the press, they can include all the axe-grinding merchants of conspiracy and misrule. And there are many emperors in this version, because anyone can be an emperor who is gullible enough to judge a book by its cover and a story by its headline and a brief, sensational news item in preference to a full and accurate account.
So who is the little boy who shouts that the emperor is, in fact, naked? That is what the press should be doing (as they do, often, in other areas of life, eg MP’s expenses, FIFA corruption etc). It’s what whistleblowers do, and it’s what legal bloggers and commentators are doing when they see the naked truth being dressed up in non-existent excess and hyperbole. John Bolch, and the Stowe Family Law blog do this themselves, and we do it at the Tranparency Project. I assume John Bolch doesn’t think the other pieces on the Stowe blog were futile. Nor can he really believe similar pieces on this blog are a total waste of time. I think he is probably just highlighting a frustration we all feel with the way the emperor just keeps donning those spanking new clothes whenever the clothmakers tell him to, and ignore the little boy.
The answer is not to give up. The little boy should go on shouting, and we (and John Bolch and all the other commentators) should go on commenting on these cases until eventually the crowd starts to listen. John Bolch concludes by saying
transparency, for all we talk about it, is far from being the answer to the challengers of the integrity of the family justice system, for the simple reason that there isn’t any point in trying to engage with those who aren’t prepared to listen.
We think there is a point, but we accept it may take time. The President would probably agree. We are still awaiting the results of his transparency consultation (now due in the Autumn, apparently), but the guidance requring publication of judgments, meaning they can now be read by anyone on the BAILII site, has only been in force for a year and a half, and it is not clear that all the judges are fully complying with it even now, so it may be too soon to judge it a failure.
Transparency, as decreed by the President, is now there for those who wish to use it, to help them understand the system, and if they’re involved in it, especially as litigants, they have a resource which they can use. They may need help and advice in making sense of it, but the book is no longer closed.
But doesn’t clarity of process, law and what is said in the judgment precede ‘transparency’; for without clarity transparency means very little?
I recently wrote how I felt like the little boy! I have a professional standard of knowledge, but because I am on the other side to the Social Services, my concerns have been branded on the conspiracists side. No one has ever listened to me with any interest. It seems that now a judgement has been passed and the judge will not be criticised for her part in the proceedings getting it wrong. My concerns will never be taken seriously. The result my son and his partner in prison for something he did not do and if she did anything would not necessarily have known. Professionals missed so much how could she be expected to! We have to wait the appeal of the criminal case. If successful we will look to over turn the family one. If I was not a health professional with years of experience in the relevant specialty I would not be able to argue the Experts were wrong.
As a parent I have found more judgements being published really useful in that I can see what I have personally experienced in the family court is not necessarily the norm. So greater transparency has actually had a positive effect on my view of the family court.
I do still feel that ALL final judgements should be published. It also may be helpful to have a summary. I believe that all documents filed at the ECHR are automatically available to the public, this does not seem to have caused any problems( happy to be corrected as only a lay person).
As for the press , why worry about it ? Something I and fellow colleagues once did made the front page of the Sun the next day. It was completely inaccurate, but I assume sold papers. No one will ever change the press sensationalising, most of the public are not daft they know to take stories with a pinch of salt.
There are miscarriages of justice within the court, as Sir Mark Hedley pointed out at the conference judges are human and can make mistakes. Transparency allows these mistakes to have a little light shone on them and the possibility of appeal. Going from the comments on Mr Suess’s post on the smoking case, the parents will be helped by a mckenzie friend to appeal . I doubt if they would have been given this opportunity without the judgement being published.
I think John Bolch has identified (although not differentiated) three groups here. Firstly, the headline writers and some journalists. As many newspaper contributors will tell you, they are not responsible for their headlines, which is why we often find reading a story reflects little of what the headline promised. Here we are into the whole area of journalists’ ethics and standards, editorial control, media plurality etc etc. Secondly, there are people who have a grievance about the system, whose personal experience makes them doubt it can be workable. Thirdly, it seems, there are people who are ready to leap in with their opinions for no discernible reason. Is this third group ‘the emperor’ identified by Paul? Can they be swayed by transparency?
In contrast to the usual pattern, this rather odd story (Headline in the paper – ‘The law made me lie to my daughter’) which appeared in the Guardian on Saturday about family courts was followed up by a series of (mostly) sensible and balanced comments – see what you think:
http://www.theguardian.com/lifeandstyle/2015/jun/06/why-i-couldnt-tell-our-daughter-about-our-separation
Julie
If you think that you can ever influence headline writers best of luck!
From my perspective as a parent is to concentrate of what is most important , shift of the system to supporting families where possible not separating them, plus stopping a large proportion the 97% of false positives identified by Dr Devine. I do believe that greater transparency will help in achieving these aims. I am also aware that I have very little clout as a parent, albeit an opinionated one.
A 97% of false positives is worrying,so what will be done about it? For those who have lost families and perhaps will never be allowed to have one as a result of the actions of their accusers. My son may as well be castrated from what his solicitor told him. He has to admit fault and jump through hoops of fire bend over double back wards before they would even consider assessing him as fit to parent. Even if he passes all of their assessments there is no guarantee they will not either take future children or forbid him being part of their lives, while chasing him for maintainence no doubt. The judge we had said the system of adoption was draconian, so what should she think the after effects of having a child taken by the state?
You’re right Sam. I don’t think I could ever influence a headline writer! They seem to annoy a whole range of people with their inaccuracy. However let’s hope that with more judgments published, there’s a chance that some journalists will try to write more balanced stories.