I begin this post by saying frankly that the transcript I have just read is shocking. If I had been told what was in it, I would not have believed it. Not so much the individual errors, but the combination of so many things gone wrong in one single transcript. Before reading further, can I ask you to read the transcript – or at any rate to read the summary of the transcript. Because otherwise you will think I have completely lost the plot. And I promise you I have not. The transcript and summary can be read here.

I do not say this lightly. It is very easy to criticise after the event. The sort of case this transcript relates to is hard. Not necessarily legally hard, but knotty and depressing and almost impossible to wrangle into any sort of good outcome for the family – and as the judge points out, inevitably somebody will complain bitterly about whatever decision he makes. And the sorts of pressures this judge was facing are not – sadly – unusual: parties without lawyers, missing and late documents, frantic re-juggling of the order of play to ensure the trial stands up. So far so normal, in the abnormal world of the family court.

I acknowledge, too, that a journalist turning up unexpectedly can be discombobulating, anxiety inducing, even irritating. And that it adds just one more thing to the teetering jenga pile of STUFF that the judge has to balance to keep the show on the road.

I understand that the system, and the individual judges are under extreme pressure.

So I repeat, I understand and acknowledge all of that context. And still this transcript is awful, really awful to read.

We all get things wrong. We all have bad hair days. The appeal system catches some of the bad hair days and puts them right. But the appeal system only corrects those errors that reach it. Which requires that the person affected knows what has gone wrong and feels able to challenge the decision.

In this post I will focus on the judge’s approach to the journalist’s request to observe, to see documents and potentially in due course be permitted to report. I will leave others to express their views about the judge’s approach to issues such as participation directions and vulnerability (though not before I raise my eyebrow at the specific submission made on behalf of a Guardian that she ‘raises an eyebrow’ at the request for participation directions from a litigant in person who the court has found to be a victim of domestic abuse (albeit also a perpetrator), who had been expecting her McKenzie friend to ask questions for her until a moment ago and who is trying to tell the very vocal judge that she doesn’t feel she will be able to get her words out if she doesn’t have the benefit of a screen. Fortunately, the judge allowed screens notwithstanding the angle of the Guardian’s eyebrow).

The ‘eyebrow issue’ illustrates the point that there are aspects of the early part of the hearing that a might legitimately have been something an observing reporter would want to write about. But the judge excluded her from this part of the hearing entirely, so she was not there to see it unfold. In fact he didn’t deal with the request to observe until 2pm on the day of the trial, by which point quite a lot had happened, even if no formal evidence had been heard.

I don’t know if this transcript is typical of this judge or not as I have no experience of him. I can only speak to what I have read about this hearing on this day. And on this day, the transcript suggests, the receipt of an email from a journalist asking to observe a hearing, as journalists have now been entitled to do for just shy of 15 years, sent all of the legal professionals into some sort of state of altered consciousness where basic due process seems to have been entirely thrown out of the window and a simple matter was blown out of all proportion.

In short, the judge took submissions from the parties, expressed strongly worded views that were highly prejudicial and critical of journalists in general and implied some sort of bad faith or inappropriate motivation on the part of this journalist, and then effectively determined the application without either sharing the request with the parties and without the journalist being present to make her application or speak to the concerns raised both by the judge and the parties. These numerous, serious criticisms directed at journalists in general – and this specific journalist in particular – were not well founded. Take one example: the fact that the application had only come in that morning was, said the judge, a ‘red flag’. He didn’t say that to the journalist of course, but that’s what he said behind closed doors. She did later try to explain to him that it wasn’t possible to make a request for a link any sooner because (as anyone who has ever had to check Courtserve knows) the lists are usually not published until after 5 p.m. the night before the hearing. But by the time she told the judge this, he had already made up his mind.

Having delivered reasons for refusing the application and, as is very clear from the face of the transcript, realised immediately that proceeding in her absence and without even hearing from her was wholly procedurally irregular, the judge convened a second hearing with the journalist present at which she was still not given an opportunity to present her application, but instead was subjected to cross examination from both the judge and two barristers, all of whom asked entirely inappropriate questions. She wasn’t told that there had been a dress rehearsal before she had been joined to the hearing.

The journalist was pressured into answering questions about her sources of information that most journalists will refuse to answer. Goodness only knows the level of suspicion that would have followed if she had given the more usual response to that line of questioning i.e. along the lines of ‘I am afraid I can’t answer that as I don’t divulge journalistic sources’ (an approach which I adopt when wearing my ‘legal blogger’ hat, in line with most journalists. We do so even in a case where the ‘source’ is (as it was in this case) the publicly available court list on Courtserve). The journalist made a valiant effort at trying to articulate how irregular the questions were, and one can only imagine how she must have felt, having waited around all morning, to be brought onto a link at 2pm and to be subjected to this sort of grilling.

As confirmed by Lieven J in the subsequent appeal (relating to an application by another journalist on day 2):

…it will rarely, but not never, be appropriate for the Court to inquire as to why the journalist is seeking to report, or how s/he became aware of the hearing. In general, as Mr Barnes submits, this will be a matter for the journalist who would not be expected to reveal a “source”. However, if the Judge becomes concerned that one party is seeking to use reporting as a litigation strategy, particularly in the context of issues around coercive control, the Judge may wish to inquire into the background to the application to report. This can only be considered on a case specific basis.

Here the judge had already questioned the parents about whether they had had any prior communication with the journalist (in my view that was also inappropriate). And yet the questions to the journalist extended from whether she had had any contact with the parents, to whether she had had any contact with their lawyers, to whether her partner might have done so. This is extraordinarily intrusive (the parties only knew her partner was a journalist because she mentioned him in passing, in the context of her explaining some issues that affected her availability). But so what if they had been in touch with him? It is not unlawful to tell a journalist that a hearing in your case is happening on a particular date and might they come and observe.

There is scant reference to the law in the 62 pages of transcript. There is an early reference to the law having ‘changed’ – although in fact it hasn’t changed on any relevant point since 2009. The request for a link to facilitate observation is described repeatedly as an ‘application’ when in fact a journalist does not need to make an application. They are entitled to attend (though they must apply to report, which this journalist had simply indicated she might do later on once she knew more about the case). When eventually somebody digs up the correct rule, it is treated as an invitation to find a reason to exclude the journalist. The judicial task generally, and the law in this specific area, is clear: the open justice principle applies and observation of a hearing of this sort is generally permitted, subject to exceptions which are set out in the rules. Where there is a request to see documents or report. a proper fact specific balancing of the competing rights and risks must be undertaken. None of that happened. The judge made very clear he just doesn’t agree with ‘transparency’ on principle, and wasn’t going to let the rules stand in the way. Had the gist of the judge’s approach not made it into the mother’s skeleton argument on appeal, that would never have been reported. It wasn’t shared with the journalist on day 1, nor the journalist on day 2, until she appealed the second press-averse decision.

Nobody refers the judge to the relevant practice direction (PD27B – has been around for donkeys years and makes clear journalists must be permitted to make representations as to attendance and access to documents) or the guidance issued in 2019 (brought in specifically to help lawyers and judges find a proportionate and fair process in response to applications for permission to report). Had the journalist been given an opportunity to articulate her position, I dare say she might have referred the judge to these pieces of guidance. Nobody referred the judge to the relevant caselaw on the Art 8 /10 balancing exercise (implicit in the rules and flagged by the word ‘necessary’, and clearly signposted in the PD and Guidance).

Spurious submissions were made (I don’t know whether they were on advice or contrary to it) on behalf of the child and father, about the justification for refusing the ‘application’ (which was somehow lumped altogether as a big amorphous scary application to see and reveal all), and which seemed to amount to a fear that the journalist might have malign motivations and do something bad that would compromise the child’s welfare (which was said to be paramount – that is WRONG in law). That fear was predicated on a lack of clarity about the journalist’s proposals. It was only by about 3pm, after the judge had determined the journalist’s ‘application’ in her absence (in fact the father and guardian’s application to eject her, which she should have been party to and permitted to respond to), that the journalist was able to reiterate that she had not yet decided whether to apply for permission to report but had simply been doing the court the courtesy of flagging it as a possibility. That the application for permission to report was merely a potential application is apparent from the summary given by the judge of the ‘application’ at the outset of the day, but this seems to get lost over the course of the closed part of the hearing, as anxiety about the perceived lack of clarity as to the parameters of the request to report snowballs over the course of the morning.

But for lawyers reading this post, whatever your view is about more transparency and whether it is a good or bad thing, the really shocking part of this read is the failure of all the professionals involved to maintain due process, to pin that process properly to the substantive law, and to ensure that the conduct of the hearing didn’t have a chilling effect on participation not just of the parties but also the journalist, who was just doing her job and who was, frankly, ambushed and impugned.

At no stage did the lawyers interject to raise the procedural unfairness with the judge (either in the closed part of the hearing or after she joined). At no stage did the judge intervene to stop the inappropriate questioning that followed his own inappropriate questioning. This is not about being ‘up to speed’ with transparency issues. It’s basic due process.

Although these things are uncomfortable to say, it is sometimes important to say things bluntly. The judge himself is clearly a plain-speaking sort of judge. There is nothing wrong with that. Criticism is difficult to dish out and difficult to receive (I have not relished writing this blog post, I’d rather not). But sometimes it is necessary. And here, wearing my Transparency Project hat, I thought it was important that alongside the view of a journalist, a lawyer should set out the issues revealed by this transcript from a legally correct perspective.

It is particularly necessary to say here that whilst this is bad, depressing, worrying to read, it is not typical of how the family court operates or how judges more often respond to transparency issues when they crop up. In my experience, judges and lawyers are generally receptive, if not always on top of the law. A couple of weeks ago I spoke on the topic of transparency to a room full of Circuit Judges. They were receptive, encouraging and interested in finding out more, and coming to ask for suggestions and to give me feedback – something that felt to me like a real shift from a few years ago. Journalists, I know, would say that this tale is wearily typical, and encapsulates in one place all the tired old mistakes that they are having to combat day in and day out. That may be accurate – but what is unique here is that the judge did not permit the journalist an opportunity to speak and explain, before reaching his conclusion. When journalists or bloggers are allowed to speak, they are most often able to overcome the misplaced anxiety, politely correct or guide the judge and lawyers on the law and process (to who is applying and who is responding), signpost them to the right rules and move forwards without disrupting the proceedings. If only that had happened in this case, things could have been so much more straightforward (that said, the very next day another journalist did attend before the same judge and tried again. She succeeded in being permitted to attend but had to issue an appeal to be able to report). So, although the persistence and sensible representations of journalists didn’t break down the hostility and opposition here, and the unguarded prejudicial remarks made in the comfort of a closed hearing strongly support the contention that nothing would have persuaded the judge to permit more than was absolutely unavoidable, in many other cases such representations do ensure a fair and workable way forward.

I should say finally, there are repeated references in the transcript to ‘the transparency project’. I am working on the basis that HHJ Haigh does not mean The Transparency Project as in the registered educational charity (since 2015) who runs this website (and of which I am chair). He is referring, I think, to the general move towards greater transparency (the transparency project without capitals). It is irksome that we, The Transparency Project are often confused with the TIG (Transparency Implementation Group) or the Reporting Pilot or thought to be somehow ‘in charge’ of transparency. We aren’t. We just offer constructive criticism to those who are in charge, and support to anyone who will listen to nudge things forward responsibly. To the extent HHJ Haigh might have meant The Transparency Project specifically, well, that is just water off a duck’s back: We have our job (as described in our charitable objectives) and he has his. As HHJ Haigh’s own comments acknowledge, there is a movement, a trend, a shift towards greater transparency. And increasingly, those who hold journalists in great suspicion and who wring their hands about the harm that will inevitably befall children are in the minority. It’s a very slow process, but the wider transparency project is happening. And the fact that this transcript is so shocking, is a sign that we are usually better than this and that we are moving in the right direction. The irony is that if the judge had been better informed about the changes that are underway and how they are being approached, he might have been reassured as to the risks and the benefits of greater transparency. Whilst no doubt uncomfortable for HHJ Haigh, the publication of this transcript does demonstrate why transparency is important. Because all judges go wrong sometimes. And we need to acknowledge that, not hide it.