It was last May, not long after he had dealt with journalist and TP member Louise Tickle’s successful appeal against a wrongly imposed reporting restriction order, that the President of the Family Division announced he would be holding a ‘Transparency Review’.
This was good news.
We waited until just before Christmas to be told what was happening – a panel had finally been formed (bonus points to us for calling right at the start that Anthony Douglas would be on it), and a call for evidence would be sent out in the New Year.
TP sleeves were rolled up and we all assembled in poised position…
The call for evidence ambled into view at the start of February but (much as sometimes happens in care proceedings when the local authority take up 22 of the 26 week time limit for proceedings and everyone else has to race to the finish line to make up for their leisurely pace) the window for the rest of us to say our piece is a brisk 4 weeks – submissions must be in by 2 March. The call is for any person or agency to submit evidence, advice or other material – and it also poses some specific questions that the panel want some help on.
We have, of course, been thinking about what we might say in any call for evidence, but without knowing the parameters or focus of the review it’s been tricky to actually set about doing anything much. Now we have to find time to gather our thoughts, our evidence and to write some coherent submissions.
This post is a first pass at what we make of the President’s specific questions – in effect the panel’s identified focus or starting point.
They are :
– is the line currently drawn correctly between, on the one hand, the need for confidentiality for the parties and children whose personal information may be the subject of proceedings in the Family Court, and, on the other hand, the need for the public to have confidence in the work that these courts undertake on behalf of the State and society?
– if not, what steps should be taken to achieve either greater openness or increased confidentiality?
– any observations on the Practice Guidance: Family Court- Anonymisation Guidance issued by the President on 7 December 2018 and the President’s Guidance as to reporting in the Family Courts, issued on 29 October 2019.
The last request about the guidance is pretty straightforward, but we are troubled by the first two connected questions (although we welcome the acknowledgment of the importance of public confidence). We think (respectfully) they are the wrong questions to start with. We think that these questions both illustrate the historical and continuing polarisation that has frustrated useful debate on these difficult issues in the past, and that they perpetuate a false dichotomy that privacy must give way to transparency or vice versa.
We recognise that privacy and transparency can be in tension with one another, but think that it is a counsel of despair to assume that they are fundamentally incompatible – and that a choice has to be made in an either-or way. We know that the president appreciate’s this complexity because his October 2019 guidance endorsed the approach taken in the North Tyneside case (which two Transparency Project members were involved in) – namely the use of collaboration and creative thinking to find ways of achieving both objectives. We think that this review should be focusing on how privacy can be appropriately safeguarded whilst also achieving greater transparency. It is a fallacy that the baby must be thrown out with the bath water, but sadly it is all too easy to say ‘Oh but what about the baby – we must abandon transparency’.
Transparency AND due privacy can both be achieved, although it is not being consistently done on either front at the moment (we will have something to say on how current anonymisation safeguards could and should be improved).
We hope this review will think creatively about how those dual aims can both be honoured without falling into the trap of generating an adversarial trial of privacy versus transparency, and of setting itself up to have to rule in favour of one ‘winner’ and against one ‘loser’.
Our response will advocate strongly that it is essential that the family justice system both protects the privacy and wellbeing of the subject children it serves AND that it finds ways of promoting and maintaining public confidence. There is no choice to be made about which of these two objectives we must fulfill – we must fulfill them both.
Our response will make plain that in our view the family court is failing on BOTH FRONTS at present, and will be looking both at issues of principle and at practical ways forwards. We will publish it on the site in due course along with any others we are able to.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
Our legal bloggers take time out at their own expense to attend courts and to write up hearings.
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Thanks for reading!
Feature pic: listen by Jay Morrison on Flickr creative commons – thanks!