As the two year anniversary of the publication of the Transparency Review approaches, how does Sir Andrew McFarlane’s acknowledgment of the need for a major shift in culture and process to increase the transparency of the family justice system, and his promises of a raft of reforms designed to achieve that increased transparency, match up with the reality today? We know that the President’s Transparency Implementation Group (TIG) has been working very hard over its 18 month implementation period, because some of our committee members have been involved its work, but what do we have to show for it?
Here we look at the key promises and proposals set out in the Review report and score them to identify whether change has been achieved – much as happens in a child protection review looking at whether a child protection plan has been implemented and effective in achieving change.
There were three overarching points made by the President in his report:
- Transparency must not be left to sit in the ‘too difficult’ box
- The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm
- The major cultural shift required can only come with clear and firm leadership from the President.
We’ll come back to those at the end.
Before we get to the detailed proposals, the President’s first main proposal was to establish ‘TIG’ (the Transparency Implementation Group) to take forward the proposals in the report. The TIG was established in December 2021. Its terms of reference were to support the President in the implementation of the reforms set out in his Transparency Review report over a period of 12-18 months, by focusing on five overlapping streams of work (reporting, publication of judgments, data, media and Financial Remedies) and include making such recommendations to the FPRC or other bodies as may be appropriate and necessary to facilitate the reforms, and leading and supporting cultural change amongst family justice system professionals and other interested stakeholders, through training, guidance and other means. Finally, the TIG was to undertake its work using a transparent process.
In addition, the President promised to publish an Annual Review, dealing with the operation of the Family Court, data setting out case numbers, categories of proceedings and outcomes, an annual audit on the progress of the various transparency initiatives.
There was no Annual Review on the anniversary of the report, nor on the anniversary of the establishment of the TIG and nor has one been published since, though some mini-updates have been incorporated in other news updates from the President’s Office. It was in the most recent ‘View’ published in July, that the President indicated his intention to publish his first ‘Annual Review’ in October 2023 (which would make it biennial). Nor is it easy to track the progress of the reforms through the transparent working of the TIG itself, because the minutes are very slow to be published, and remain difficult to locate even on the new judiciary website (we have been continually kvetching about this to the committee chairs and civil servants responsible for minutes and the website). There is now a dedicated TIG page (accessible via the usefully memorable www.thetig.org.uk), but unfortunately not everything to do with TIG is accessible from that page. In particular, information about the Reporting Pilot (one of the five strands of work) is located elsewhere and not cross referenced.
Because some of members of The Transparency Project are also members of the TIG, we are aware that there is have been a number of meetings that are not apparent from the public record as the minutes are not up to date, however nothing we think that renders anything in this post inaccurate.
However, it is partly because of the overarching failures in transparent working that this post is important. Let’s move on to look at the more detailed proposals.
Action points reviewed
1 Reduce amount of gratuitous / graphic detail about abuse in judgments.
The President said he wished to achieve an outcome where detailed accounts of [child] abuse simply do not appear in any published judgment. How this is to be done was a matter on which the President said he wished to consult further. He suggested either replacing the gory details with ‘a brief and very basic factual summary sufficient to enable sense to be made of the part of the judgment which is to be published’ or that the judge should set out detail in an annex not for publication.
Our impression is that this was beginning to happen in any event. There has been no guidance published to assist judges with this other than the draft publication guidance below.
2 Revisit and consolidate guidance
The President said that various iterations of President’s Guidance in this area need to be revisited and consolidated to ensure that the guidance is consistent, and that it properly balances the need for greater transparency with protecting the anonymity of the children and avoiding salacious detail becoming publicly available. He said that the revised guidance should stress that one aim of the publication of judgments is for there to be general access to knowledge of how the court approaches the mainstream of cases, and not just the high profile or most serious issues. The process of revision was also to ensure that judges are given straightforward advice on how to approach the task of anonymisation.
Outcome: Draft guidance on anonymisation / publication has been prepared, but not published because it cannot be completed until it is known what is happening with the anonymisation unit. No work has been done as far as we are aware on consolidating other earlier pieces of guidance.
3 Assisting judges and practitioners to achieve anonymisation.
The President said he would press for the establishment of an Anonymisation Unit within HMCTS which, through a combination of human input and/or software, which would undertake the task of anonymisation.
Outcome: much pressing has happened. The Justice Committee recommended the establishment of a unit in its Fifth Report – Open Justice: court reporting in the digital age (which was published on 1 Nov 2022. There is no Anonymisation Unit.
4 Greater publication of judgments / issuing of summaries of judgments – All judges to publish anonymised versions of at least 10% of their judgments each year.
When the Review was published the President said it was ‘not feasible to consider a target of more than 10%’.
Outcome:The publication guidance subgroup of the TIG Anonymisation & Publication Subgroup concluded that 10% was ‘unworkable’ and noted a ’palpable anxiety that the TIG’s plans for publication are only going to add pressure to an already overwhelmed judiciary’. This subgroup has proposed an alternative formulation of a minimum number of judgments per tier of judge per annum (DJs 5, CJs 5-10, HCJs 10, no minimum for fee paid judges but expectation is they would publish in line with their sitting commitments), but the recommendation is that this is contingent on an anonymisation unit, and so this has stalled. The guidance and anonymisation unit are pending and so there has been no progress on publication. In addition, the switch over from BAILII to The National Archives in April 2022 created a hiatus / reduction in publication rates, although this appears to have recovered somewhat since.
5 Publication of Magistrates decisions
The way in which magistrates’ decisions may be published requires further consideration (said the President).
The Publication Guidance Subgroup of the Anonymisation and Publication Subroup of TIG considered this issue and held judicial focus groups. Their Publication Guidance suggested that the number of published ‘judgments’ from Magistrates would logically have to be attached to individual Legal Advisers rather than individual Lay Justices. It was proposed that Legal Advisers publish a guideline five judgments from cases that they have sat on each year. This number reflects the fact that preparing written judgments will not be a significant deviation from existing practices.
Partly achieved – in that it has been considered but not acted on.
6 Naming of local authorities, treating clinicians, social workers and experts in published judgments to be further considered
The approach to the naming of local authorities, treating clinicians, social workers and experts in published judgments needs further consideration and further consultation responses on this issue will be called for.
Outcome: This has been considered by TIG and is partly dealt with in unpublished draft anonymisation guidance, but has also been the subject of consideration by the Court of Appeal in Abassi (the Court of Appeal took a different view to the President of the Family Division and overturned his decision – see here). The approach taken in the Reporting Pilot Transparency Order is probably inconsistent with Abassi (this judgment had not been handed down when the Pilot was finalised).
7 ‘Standard reporting permission order’ for use in Financial Remedies Court
This was to be the subject of consultation. However, no consultation outcome was published, and the lead judge responsible for the consultation has had a change of view as to what the law is and therefore as to the necessity and appropriateness of a reporting permission order. The correct legal position remains unclear.
Since then the TIG FRC Subgroup has produced a lengthy and detailed report making different proposals. Whilst the President has published their report with approval, no steps have yet been taken to implement those proposals and the report has yet to be considered by TIG (whose next meeting has yet to be scheduled). Some commentary has questioned the lawfulness / coherence of the TIG FRC Subgroup proposals. In the President’s View July 2023 the suggestion was made that this may ultimately lead to a pilot.
Outcome: original proposal abandoned. Position requires clarification.
8 Publishing daily court lists which are clear and more informative
It was said that lists should be made available in advance to journalists/bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate.
Outcome: 8 months into a 12 month reporting pilot which depends on improved listing, daily court lists have not improved. The President’s View from July 2023 acknowledges the issues:
“A journalist’s time is a precious resource (both for the individual and their employers) and journalists are understandably unwilling to attend at a Family Court regularly, or in any number, simply on the chance of observing a reportable case. At present, the daily court lists do not indicate more than the case number and that it is a Family case; no information is given about the nature or substance of the hearing. We are striving to achieve a system which does give journalists more information about the nature of listed hearings. The pilot team is working closely with HMCTS to bring forward a solution to this problem.”
Although category lists relating to listing arrangements in Reporting Pilot courts (whereby lists will include category codes), this has not yet filtered through to any noticeable degree on court lists (thought to be because the new categories are not entered into court diaries as cases are listed, and categories are not being applied to matters listed before implementation in July).
The new CaTH system piloting in five courts has potential to assist, but it is early days – and it doesn’t seem to be easily accessible to legal bloggers (we’re trying to see if we can resolve that).
9 Reporters to be able to report on family court hearings through reverse presumption pilot and then national rollout
Accredited media representatives and legal bloggers were to be able to report publicly on what they see and hear during hearings – subject to anonymity of the children and family members, and confidentiality with respect to intimate details of their private lives… the focus should be on establishing a workable regime that permits and facilitates press and legal blogger reporting of Family cases.
The President said he intended to achieve this by bringing forward rules that would allow journalists and legal bloggers to attend Family Court proceedings and report on what happened, on the basis of a reversed presumption in favour of reporting (subject to judicial discretion). Serious consideration was to be given to adopting the Rowntree pilot (a scheme drawn up and submitted to the Transparency Review as a proposed way forward. The pilot scheme borrows many of the features of the Rowntree pilot but differs in a number of ways, in particular around listing and the timing of transparency orders).
Reversed presumption to be ‘piloted’ in two local authority areas (one urban and one rural) to ensure that the changes work in an effective way and to deal with any unforeseen issues and problems that may arise before it is rolled out nationally.
A reporting pilot has been established (by way of guidance not rules) as of the end of January 2023 in three courts, one urban, one rural and one Welsh. The pilot has not been accompanied by the listing improvements that were said to be critical to encouraging an increase in attendance and reporting meaning that the pilot is not operating to potential. The pilot has yet to be fully rolled out (it does not yet apply to hearings before Magistrates – that is promised at some point in October, leaving perhaps a six to eight week window before Christmas and the scheduled end of the pilot ), and next steps are unclear. Whilst the volume of attendance and reporting has been lower than hoped for some good quality reporting has been facilitated, and this has incorporated some interviews with parents.
10 Monitoring of the pilot
The progress of the trial run was to be monitored by the TIG and Family Justice Young People’s Board invited to advise upon and monitor the views of the young people who are in proceedings in these two courts during the trial period.
The President said it would be necessary to monitor the reporting, both locally and nationally, and, where clear misreporting occurred, for it to be taken up with the relevant editors.
The scheme drawn up by the TIG includes an evaluation of the pilot. We wrote about some of the early reporting here, and overall think that the reporting has been good quality, and has added texture and depth to the publicly available information about family proceedings. We are unaware of any misreporting or breaches of anonymity (we don’t view the mild criticism we made of the selective approach and editorial line of the Daily Mail in that post as ‘misreporting’).
Outcome: As per the minutes of the TIG pilot subgroup from March 2023 an organisation have been commissioned to produce the evaluation. The evaluation team have not so far made contact with the Transparency Project (the main source of legal blogging activity and legal blogging output which requires evaluation) and we are unaware of any such liaison with other stakeholders to date. There is no information available as to the approach the evaluators will take or when they will report.
Said to be in progress but no evidence of activity – requires clarification.
11 Journalists to be able to see certain documents to aid understanding
The Reporting Pilot provides for provision of specified key documents in pilot cases in advance of hearings. In practice, documents often cannot be obtained in advance due to late listing, a lack of contact details and the design of the pilot which means that the Transparency Order is not in place until after the commencement of the hearing (in contrast to the Rowntree pilot which had the order in place from gatekeeping stage and provided for contact details to be provided for the applicant to facilitate dissemination of documents prior to the hearing).
In non-pilot courts (i.e. almost all courts) a specific request must be made by a reporter, and in practice it is not usually possible to obtain documents before the end of the hearing, meaning a reporter must go in and observe ‘in the dark’.
12 Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR, r 12.75(1), PD12G and PD14E.
Outcome: Apparently abandoned, albeit a similar permission is included in the Transparency Order when made in Reporting Pilot cases. No equivalent in non-pilot cases/ courts and nothing in the pipeline.
13 Urgent consideration to be given by government and Parliament to a review of s12 AJA
Outcome: In 2022 the Justice Committee held an inquiry into Court reporting in the digital age, which recommended there should be review and reform of s12 so that it can replaced with a much more targeted measure that respects the principle of open justice. The committee recommended that the Government should ask the Law Commission to produce a proposal for the reform of section 12 of the Administration of Justice Act 1960 that provides a better balance between transparency and confidentiality. No such recommendation has been made to the Law Commission and their current programme of work does not appear to include reform of s12 (Although they are in the pre-consultation phase in respect of contempt of a court project, where s12 describes a particular type of contempt of court). The Government is currently conducting a wide ranging Open Justice Consultation but this does not ask about s12 specifically and it is unclear how much attention will be paid to Family Justice specifically.To date there has been no government proposal or Parliamentary consideration of reform of s12 AJA.
14 Ongoing dialogue / work with the media
This was necessary to establish a relationship of trust and confidence – links were to be established at national level via Media Liaison Committee and locally between DFJs and local media, inviting them to court to gain a better understanding of the work of the family court.
Outcome: the media liaison committee has been established. Some reports of constructive working relationships between DFJs / judges in Pilot courts and interested media. Unclear how many other DFJs have established links with local media.
Partially achieved – clarification required.
15 A scheme of compulsory data collection at the end of each case.
This was to be devised and trialled as a web based tool by TIG/HMCTS.
The TIG Data Collection Subgroup met on several occasions and made some recommendations regarding improved data collection by the Court Service but the last published Minutes of that group (June 2022) do not indicate whether any changes had been made. There have however been three subsequent meetings of that subgroup and some discussion about research on data scoping.
16 Family Court Online Resource
The President said : there is a need for the Family Court to have a comprehensive and interactive online presence. Parents, young people and the wider public need a modern online hub to access which will explain the work of the Family Court, how cases are dealt with, what other options exist for dispute resolution and how to make an application. The website could signpost visitors to other potential sources of support or information. It should be the go-to first point of reference for anyone who has a need to engage with the Family Court.
Let’s go back to the three overarching points:
- Transparency must not be left to sit in the ‘too difficult’ box
The improvement of listing, the evaluation of the pilot and creation of an anonymisation unit have been particular sources of difficulty in achieving the reforms. The 10% publication rate was swiftly put in the ‘too difficult’ box. All these matters have depended upon assistance from HMCTS or other resourcing which has so far not been forthcoming.
- The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm.
We have noticed that, whatever is happening in the three pilot courts, there does not seem to be any particular indication of judges or professionals viewing openness as a norm in any sense. In fact, in some instances it is reported that there is some regression in non-pilot courts as the perception is that the media should only be attending or seeking to report cases in Pilot Courts (in spite of having been entitled to attend ALL courts for 13 years), and some judges have paused publishing their judgments whilst they await instruction or support with anonymisation.
- The major cultural shift required can only come with clear and firm leadership from the President.
We are concerned that the focus has been on the pilots to the detriment of the messaging about a broader pan-jurisdictional cultural shift which we had expected to be reinforced via Annual Reviews and regular updates. Whilst there have been one or two mentions of transparency in President’s ‘Views’ the (extensive) work of the TIG has largely been invisible to the wider family justice community / public, except perhaps in the three pilot courts. The latest published TIG minutes on the judiciary website (if they can be found at all) are from October 2022 (the pilot subgroup has published minutes in December 2022 and Mar 2023), which creates an impression that nothing is happening or that transparency is ‘being dealt with’ and is someone else’s problem to worry about. In this context there is a risk that the low take up of the pilots will be perceived as resulting from low interest from reporters and the public, when in fact it is primarily due to the failure to remove the barriers the Transparency Review identified as so important to the pilot’s success, but which proved too difficult to remove after all.
The implementation period was said to be 12-18 months from establishment of the TIG. That timescale elapsed this summer. We hope there will be some further developments just over the horizon, but looking at things in the round at present, and notwithstanding the gargantuan efforts of the TIG, we have to score the Transparency Reforms as identified in October 2021 as largely…