With the recent launch of the Transparency Reporting Pilot in the family courts, there may be a risk of confusion over some of the terminology, such as “Transparency Orders”, already used in the Court of Protection, and misunderstanding over the role of “legal bloggers”.
This post recaps the different journeys the two types of court have travelled to get to where they are today, in terms of transparency, and explains the different meanings of some overlapping terminology.
The starting point
In one sense, the “starting point” of what we call transparency is that all proceedings in court should be heard in public – that’s what “open justice” means. They should also be clear, which essentially means that people observing the proceedings or reading about them later should be able to understand what they are about and what happened.
For many years the family courts and the Court of Protection were an exception to that general principle of open justice. Most hearings were conducted in private, for reasons of privacy and confidentiality, many of them historic. The practice bred resentment from the media and suspicion among litigants, contributing to a narrative of “secret courts” and justice being done “behind closed doors”.
In 2014 the then President of the Family Division, Sir James Munby, issued his Transparency Guidance (Practice Guidance (Transparency in the Family Courts) [2014] EWHC B3 (Fam); [2014] 1 WLR 230) which basically called for the publication of judgments from private family law hearings in an attempt to open up the workings of the courts to public scrutiny. At the same time, in his combined role as President of the Court of Protection, Sir James issued equivalent guidance for that court too (Practice Guidance (Transparency in the Court of Protection) [2014] EWCOP B2; [2014] 1 WLR 235), again urging judges to publish more judgments from private hearings. The thinking behind this guidance was set out in para 2 of both documents:
“In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The Guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).”
The effect of the Transparency Guidance
Although the 2014 Transparency Guidance initially boosted the rates of publication of judgments from private hearings, the effect soon wore off. Research conducted by three members of the Transparency Project demonstrated that the response of judges to the guidance had been “patchy” and rates of publication varied from judge to judge and court to court. Statistical analysis showed an overall dropping off after the initial boost. (See Doughty, Twaite, and Magrath, Transparency through publication of family court judgments, 2017)
Nevertheless, the publication of judgments did assist the media to cover more of what was happening in the courts. Under the Family Procedure Rules 2010 accredited journalists had been able since 2009 to attend private hearings in the family courts, but the statutory restrictions on what they could publish, and the paucity of advance information in the listings, made the prospect of doing so frustrating and uneconomic. With the publication of judgments they could at least see what was going on just by scanning newly published cases on BAILII. This became evident from the many stories in the press which acknowledged that “detail of the case emerged on a legal database”.
The Court of Protection Pilot
In January 2016 the Vice President of the Court of Protection, Mr Justice Charles launched a pilot scheme under which the usual presumption of privacy was reversed, and the default position was that hearings in most cases would be heard in public, but subject to a Transparency Order imposing stringent reporting restrictions (chiefly around maintaining the anonymity of P — the party in whose interests the case was being heard). This was achieved by a Practice Direction supplementing part 13 of the then applicable Court of Procedure Rules 2007.
A background note explained that the pilot scheme was initially intended to run for six months, subject to extension, and that it would be subject to a process of evaluation. In the end it was extended for rather longer, until 30 November 2017. As for evaluation, we looked in vain for any official report or publication. However, it did result in more press reporting and, perhaps more significantly, blogging. We attended ourselves and reported for this blog, but the new openness of the court made possible the subsequent launch of the Open Justice Court of Protection Project, by Prof Celia Kitzinger and Gill Loomes-Quinn.
In December 2017, the 2007 Rules were replaced by the Court of Protection Rules 2017.The new Rules effectively adopted and made permanent the 2016 pilot scheme, in the form of Practice Direction 4C, under which the court will “ordinarily” make an order for the hearing to be in public, subject to restrictions on who can be identified and what can be reported.
The Legal Blogging pilot
Chocks away, lads, as another pilot takes off. This time it was in the family courts. Once again, it was achieved by a Practice Direction supplementing the Family Procedure Rules, PD36J, in response to a proposal put to the Family Procedure Rules Committee by the Transparency Project. From October 2018 a “duly authorised lawyer” — practising lawyers, academic lawyers and those under the umbrella of an educational charity — to attend private hearings in family court in much the same way as duly accredited representatives of news gathering and reporting organisations entitled to do so under FPR r 27.11(f).
The legal blogging pilot introduced the idea of the “legal blogger” as a distinct form of accreditation, which could be problematic, since the expression could also be used simply to describe someone commenting about legal matters on a blog. And there are lots of those.
There were certain obvious differences between this pilot and that which had run in the Court of Protection. For one thing, the Family Court hearings were still in private; for another, it was for the “legal blogger” wishing to attend to present suitable documentation to satisfy the court they were entitled to do so. That included proof of ID, proof of qualification as a lawyer, practising certificate or a letter confirming their involvement with a relevant legal education charity or educational institution, together with a Form FP301 (Notice of attendance of authorised lawyer) and feedback form. (See Legal Blogging Pilot – some comparisons with the Court of Protection transparency pilot.)
Having assuaged most of the anxieties of the judiciary and other initial naysayers, the legal blogging pilot was eventually made permanent, in October 2021, by a change in the Family Procedure Rules, adding a paragraph (ff) to rule 27.11. Now legal bloggers were permanently embedded in the rules in the same way as accredited news reporters. But the hearings remained private and the statutory restrictions on what they could report remained just as stringent.
The Transparency Review
In October 2021 the current President, Sir Andrew McFarlane, published the results of an extensive consultation in a report entitled Confidence and Confidentiality: Transparency in the Family Courts. He concluded that — despite all that had happened since his predecessor’s Transparency Guidance and the various pilots — the current system was “not sustainable”. He said transparency was not a binary game in which courts were either open or closed, but was amenable to a variety of solutions and improvements, and that he had “looked widely and thought laterally to try to identify changes both great and small which may increase openness in the system”.
He then set up the Transparency Implementation Group (TIG) and its various sub-groups to decide how best to implement the recommendations. One of the sub-groups was tasked with launching, you guessed it, yet another pilot.
The Transparency Reporting Pilot
The primary objective of the Transparency Reporting Pilot is to replicate, in a small number of sample courts, aspects of what had succeeded in the Court of Protection, namely to reverse the default position on privacy, and to make hearings open but subject to stringent restrictions on what could be reported and who could be identified. However, the hearings are still held ‘in private’ because only media representatives and legal bloggers may attend and publish. Unlike the Court of Protection, the general public cannot attend Unless there are good reasons not to, the court should make a Transparency Order in each case, allowing reporters to attend and report subject to complying with those restrictions (on pain of committal for contempt). The pilot was launched at the end of January 2023 and is expected to last for a year.
The pilot courts are located in Cardiff, Leeds, and Carlisle. Each has a liaison barrister and court staff have been primed to expect applications from journalists and legal bloggers (both have been encouraged to participate). The reason they might wish to do so is that, provided they keep within the terms of the Transparency Order, they can write and publish on the case without having to apply to the judge for leave, as remains the position in other family courts. As with the earlier COP pilot, there has been talk of an evaluation process but no clear details of what it will involve or whether it will result in anything being published. (Nothing seems to have been published from the Court of Protection pilot.)
Key differences from the COP Transparency pilot
Transparency Order:
In the Court of Protection, a Transparency Order is one made under rule 4.3 of the Court of Protection Rules 2017 and Practice Direction 4C, and usually follows a template published on the Judiciary website. The order identifies the case and sets out the reporting restrictions and a penal notice (warning of the risk of committal for contempt of court). It is effectively a form of injunction, binding on anyone to whom it applies.
In the COP the order applies to anyone attending court, including public observers, who are allowed in by virtue of the Rules unless the court orders otherwise. This is different from the Family Courts where the relevant hearings are still private, so the public are not admitted, and only “pilot reporters” (ie duly accredited journalists and legal bloggers) can attend (although the court in a particular case can also choose to permit others). So they are the ones bound by the Transparency Order. The pilot reporter must complete form FP301 if a legal blogger, or produce ID at the outset of the hearing if a member of accredited media. Pilot reporters are expected to notify the court in advance to ensure all the relevant paperwork can be managed without disrupting proceedings.
In the Family Court, a Transparency Order is made under rule 27.11 of the Family Procedure Rules 2010 and Practice Direction 27B as modified under the terms of the pilot and a template is attached to the President’s Transparency Reporting Pilot Guidance.
Legal blogger:
The expression “Legal Blogger” does not appear in the Family Procedure Rules, which refer only to “duly authorised lawyers”, but it was the term used in the Legal Blogging Pilot and bears a particular meaning in the family courts.
There is no equivalent role in the Court of Protection, mainly because under first the Transparency Pilot and then the 2017 Rules the court is usually open to all observers and there is no need to provide for a form of accreditation for bloggers who are not accredited as journalists.
However, it is not uncommon for the term “legal blogger” to be used in a wider, more generic sense, to cover anyone blogging about the law. It is important to bear in mind that the phrase only has a particular significance when used in relation to the attendance and reporting of private hearings in the family courts.
Transparency Project:
Just to be absolutely clear, the Transparency Project, where you are reading this blog post, is an independent legal educational charity and is not part of the President’s Transparency Implementation Group (TIG) although some of us do serve on the latter’s sub-groups.
We are, of course, very keen to support the TIG and the President’s transparency agenda, as our name would suggest; and have been instrumental in setting up and reporting on the earlier transparency initiatives and pilots discussed in this post.
Further information
Please see the section of our website dedicated to Legal Blogging and the Reporting Pilot, with links to other documents and guidance, including a special leaflet for litigants in the affected courts.
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!
Featured image: Pilots – photo by Pixabay via Pexels, reproduced with thanks.