On 2nd February 2023, we ran training for prospective legal bloggers interested in taking part in the Transparency Reporting Pilot. During that training, we received some thoughtful questions which we thought helpful to condense into one blog post, as well as some other common queries we expect will arise.
The training covered a whole bunch of things that this post isn’t going to deal with. If you’re interested in the applicable law and the nuts and bolts of the legal framework around legal blogging, you can view the training pack including slides here and the video of the event (minus questions) here. This blog post is not a substitute for that training.
What is the Pilot?
Family court hearings are private. Although ‘legal bloggers’ (see below) and journalists can attend most hearings, they can usually report very little unless the judge gives them permission. From January 2023 there is a pilot (test run) in certain family courts (Leeds, Carlisle and Cardiff), which means that legal bloggers and journalists will be able to report what they have seen, heard and read in court without making an application for permission to report, provided that any reporting is anonymised. This is effectively a reversal of the presumption against the reporting of children cases.
The court will be ready to make a transparency order if a legal blogger turns up to a hearing, and any reporting will need to comply with the terms of the transparency order.
In addition, the pilot will permit parties to talk to reporters (including bloggers) and for those reporters to share information with their editorial team.
The pilot launched on 30th January 2023 and will run for 12 months.
What does ‘legal blogger’ mean?
A legal blogger can just be someone who blogs about law. But when we’re looking at the rules about who can observe family court hearings and who can report on them under the pilot we mean something more specific. Here, a legal blogger is shorthand for ‘a duly authorised lawyer’ who is attending a hearing for ‘journalistic, research or public legal educational purposes’ i.e. a kind of court reporter. This definition is used in Family Procedure Rule 27 (which allows attendance of this kind of legal blogger) and the pilot guidance (which lets them report). A lawyer involved in the case cannot also act as a reporting ‘legal blogger’ in that case.
A ‘duly authorised lawyer’ is:
- a lawyer with a practising certificate;
- a lawyer employed by a higher education institution; or
- a lawyer attending on behalf of an educational charity registered with the President of the Family Division (i.e. us at The Transparency Project!)
If you are a lawyer who doesn’t have a practising certificate, you have to be a lawyer with a certain level of legal qualification: a qualifying law degree, the Common Professional Examination, the Graduate Diploma in Law, the Solicitors Qualifying Examination, a post-graduate legal qualification or CILEX L6 diploma/fast-track diploma. To attend as a ‘legal blogger’, you will need a letter of authorisation either from your higher education institution or from us at The Transparency Project.
For us to authorise you as a legal blogger, we would like you to complete a write-up of a case or article with the lay reader in mind (not an academic journal article full of legalese) in line with our editorial guidelines; we need to be satisfied that you have the legal skills to adhere to the rules and the limits of your permission; we would need, before publication, a copy of the transparency order; and we would need what you write to be published on our site so there is proper editorial oversight.
Why on earth would you want to be a legal blogger?
Yes, we know that lawyers are very busy but there are lots of reasons why being a legal blogger can add value to your current practice/role. You will be contributing to an important conversation around open justice in the family courts, offering a complementary coverage to the mainstream media. You may see and explain things differently than a journalist would, and can write without needing to ‘sell’ a story or keep to a rigid word count. In terms of benefits to you as a lawyer: attending as an observer gives you a fresh perspective on the proceedings (when you’re not the stressed-out advocate at the centre of the court process). It’s an opportunity for personal and professional development. You will see advocacy techniques from a range of advocates, client care skills, how the lay parties respond to the proceedings. Blogging will help you develop your communication skills. You will become more familiar and confident with law and practice around privacy and reporting, which you can take into your own practice. You will have flexibility that a journalist doesn’t necessarily have.
Do you have to blog about the hearing you attended?
In short: no. You might decide not to for a number of reasons. But you must have attended the hearing for journalistic, research or public legal educational purposes.
Do you have to give advance notice of your attendance?
No, but it is helpful to do so if you can, particularly in circumstances where everyone is working out how the Pilot is going to operate and might be feeling a little nervous. That can be easier said than done though, when court lists go up very late.
Can you ask for documents?
Under the Pilot, you are entitled to documents such as position statements and skeleton arguments. Be proactive in asking the judge/advocates for these documents. Ask for a copy of the transparency order, particularly if you are being authorised by The Transparency Project to attend, otherwise it is difficult for us to know what can and cannot be reported.
How do you find and choose a case to blog?
There are a few ways that you can find interesting cases to report. You can:
- Check the court lists on CourtServe the afternoon before. The case number can give you some clues about the case: the first letters help you identify the court (e.g. BM for Birmingham, NN for Northampton etc) as well as the type of case (e.g. ‘C’ denotes care proceedings, ‘F’ for Family Law Act 1996 matters such as non-molestation order applications, and ‘P’ for private law children proceedings).
- Turn up on the day and check the list, ask the usher if anything interesting is on, or pick a case at random and hope for the best!
- If you know any friendly judges or contacts at specific courts, ask if they can let you know of any cases of interest.
- If you have read a recently published judgment which is ongoing and, for example, has been remitted back post-appeal, ask the relevant judge/court/judicial press office for the details of the next hearing.
- Sign up to The Transparency Project’s email address to be notified if we have been told about any cases of interest.
Do you have to reveal your source?
It may be that you’re aware of the hearing because a party or professional has told you. You are not obliged to reveal your source to the judge. A journalist wouldn’t and, as a legal blogger, you are attending in a quasi-journalistic role. You are entitled to say that you don’t consider it appropriate to answer that question. If you are attending on behalf of The Transparency Project you would need to honour the commitment we have made to protect your journalistic source (See our FAQs for parties where we explain to parties what we will do with information they send us).
Can I get paid for legal blogging?
Regrettably not. This is a voluntary activity. Exceptionally, if there is a really important or interesting case we requested you to attend we may be able to assist with some travel expenses, but we have very limited resources.
Can I ‘attend’ remotely as a legal blogger?
Potentially, yes. Paragraph 52 of the latest version of the Pilot Guidance says:
In considering whether to facilitate remote attendance of an attended hearing by a pilot reporter, the Court should specifically consider Section 85A of the Courts Act 2003; the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (SI 2022/705); and the Practice Guidance (Open Justice: Remote Observation of Hearings) [2022] 1 WLR 3538. For the duration of the pilot, however, pilot reporters should not expect additional provision to be made, particularly if such requests are made on the day of the hearing.
The Practice Guidance referred to can be found here.
What if a separately represented competent young person wishes to talk to you directly at court?
The occasions when a separately represented competent young person will be at court are limited, and no doubt not all young people will want to speak to a reporter. We also don’t anticipate that many legal bloggers will want to incorporate interviewing parties in their legal blogging process – it’s not something we have tried ourselves to date. However, there is nothing to stop a reporter and a party from speaking to one another at court if that party wishes to do so, and the position is the same whether they are under 18 or over 18.
The Information Leaflet provided to parties says this:
Can I speak to the reporter?
Yes. You can only speak to a reporter who has a Press Card or is an ‘authorised lawyer’. If the reporter has already attended a hearing in your case, the judge will have checked this and you can go ahead. If they haven’t, you should check, so that you can be sure you aren’t breaking the rules. If in doubt, ask to see the journalist’s UK Press Card or their qualifications. You don’t have to speak to a reporter unless you want to. It is up to the reporter to make sure that whatever they include in their report is allowed to be published. You are not allowed to share any court documents with a reporter apart from the documents listed above, or where the judge has said it’s ok.
However, we suggest it will be particularly important where the party is a young person, for the reporter to ensure that they understand who you are, what your role is, the terms on which they are speaking to you (i.e. that you might publish what they say, unless you are agreeing to discuss matters off the record) – lawyers may think of this as a process of ensuring informed consent. In addition, you will also need to ensure that any discussion you have with the young person doesn’t distract them from engaging in the actual hearing or discussions with their lawyer. This might mean it is better to exchange details so that you can make arrangements to speak with them on another day away from the court building.
What if a lay party discloses apparently vital information which has not formed part of the evidence? Can you report it in your blog? And do you have a duty to relay that information to the court or the lawyers?
This is a difficult question to answer hypothetically. There may be a tension between a legal blogger’s journalistic duties of confidentiality to their ‘source’ and their professional duty to the court as a lawyer. We do not think that reporters are in a position to be judging what is ‘vital’ information in a case which they are merely observing, probably without full information. We do not think it would be helpful or appropriate for reporters to be intervening into proceedings by passing on information received as a matter of course (potentially resulting in them becoming witnesses in the case), but in practice we do not think the issue is likely to arise very often, if at all.
Circumstances in which a reporter may need to consider relaying information to the court or other agencies might include where there was clear evidence of some sort of imminent risk to life and limb to the party or someone else involved in the case (for example a threat to kill, harm or abduct).
We think that a legal blogger would need to consider their own professional code, the overriding objective and the terms on which they received the information.
It might be appropriate in some circumstances to encourage a party to refer back to their own legal representative about the information in question.
Ultimately, in the unlikely event that a piece of information contained in a report were seen and considered by the court or parties to be vital information that materially impacted on the decision made, then the court could consider reopening findings in the usual way.
Feedback and further questions
Legal blogging is a relatively new activity. We are sure that the more of us who engage in it the more we will identify – and solve – practical and ethical issues. We encourage legal bloggers to feed back to us what issues have arisen for you, and how you have solved those issues – and to contact us if you need any guidance from our team (as far as is possible given the applicable confidentiality rules). We may expand on the Q and A above as the pilot develops.
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.
We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.
Thanks for reading!