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.