Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the May 2018 issue, [2018] Fam Law 605.
There have now been two Bridget Lindley Memorial Lectures (BLML) organised by the Family Justice Council and both have provided food for thought for members of The Transparency Project. It is interesting to note the growing evolution of understanding about the difference between ‘active’ and ‘passive’ transparency and what questions we are now beginning to ask to ensure that ‘active’ transparency is considered.
The first BLML was delivered by Lord Justice McFarlane in March 2017. He covered a variety of points about risk and informed decision-making and also clearly articulated the difference between ‘active’ and ‘passive’ transparency in the family justice system. ‘Transparency’ is about so much more than just allowing passive public scrutiny of processes and outcomes: we must generate a far greater understanding amongst the public about what is behind the decisions made. This becomes an increasingly urgent project as distrust between parents and professionals apparently hardens and increases. For example, in 2017 McFarlane LJ noted with disquiet:
‘From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrust shown by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengaging from working with professionals and the process in a way which can, in my view, only damage their interests rather than enhance them.’
This worrying evidence of growing distrust between parents and professionals was also highlighted by the journalist and fellow Transparency Project member Louise Tickle who delivered the second lecture in March 2018 in Birmingham. Louise is herself an example of the benefits of a particular type of ‘active’ transparency – encouraging intelligent outsiders to examine our current closed systems and highlight where practice and procedure that to family lawyers seems normal, may appear bizarre and even frightening to those on the outside.
Louise emphasised that the ‘game changer’ for the current closed system of family law was social media. Now anyone can be a publisher and raw stories of human grief can travel anywhere and be accessed at anytime. She noted that sometimes her email inbox seemed ‘like one dreadful scream of pain’ as whenever she wrote about the family system she received ‘detailed and anguished’ messages from members of the public. Of course, Louise could not comment on whether or not such anguish was objectively well founded but that is not the point: such strongly expressed emotions sounds as a warning bell to any journalist – something is wrong with the system if it consistently provokes such negative comment from those who have experienced it.
Tickle was very clear about her deep concern that the family court operated in such secrecy and the impact that this was having on understanding and implementation of basic ethical practices. The treasured distinction often repeated by family lawyers between ‘privacy’ and ‘secrecy’ does now seem – to the general public at least – a distinction without a difference.
HOW CAN THOSE OUTSIDE THE CLOSED SYSTEM HELP THOSE WITHIN?
There is no doubt that commentary and engagement with family law issues is increasing; and that legal bloggers and commentators are using social media to help increase awareness of important issues and their consequences; Louise commented in particular of the ‘live tweeting’ of Joshua Rozenberg about such important issues as the removal of medical treatment from Charlie Gard and also the reports of the President of the Family Division’s concern at the lack of safe accommodation for young people with mental health difficulties, which ‘exploded’ as journalists were able to access the information and report on it speedily (https://www.familylaw.co.uk/news_and_comment/the-nation-will-have-blood-on-our-hands-sir-james-munby-speaks-out-in-re-x-a-child-no-3).
The hope is that letting such light shine on proceedings will increase understanding and, in turn, trust in the system. However, discussions with the panel and audience members at the conclusion of Louise’s lecture directed conversation further on from mere passive transparency to thinking about how those of us within the closed system could benefit from the views of those outside it. Lucy Reed, Chair of the Transparency Project,raised this issue explicitly at the lecture and commented that one of the dangers of the current closed system was the lack of opportunity for feedback. We need to invite people in and to benefit from the insight they could offer. The President of the Family Division, Sir James Munby, agreed.
So how are we to achieve this? The post-lecture discussion clearly identified more questions than answers but some issues emerged which could provide the foundation for more detailed analysis and possible positive change. Louise Tickle asked whether some kind of wider accreditation scheme for the press could improve their access to cases and reduce objections to their reporting. This was dismissed by the President as simply an example of censorship of the press. However, our current system already limits access to journalists to those who are accredited by the UK Press Card Scheme. Representatives of the media without a valid Press Card may be admitted at the court’s discretion but have no right to attend court (see FPR r 10.28). The President also described as a ‘no brainer’ The Transparency Project’s proposal to the Family Procedure Rules Committee to permit legal bloggers to attend family court hearings on a par with press card holders.
But the wider issue must surely be that the current inhibitions on reporting about cases operate in practice as widespread press censorship. This has a chilling impact on any hopes for insight and feedback from the ‘intelligent outsiders’. As HHJ Bellamy commented in 2015 (see Leicester and Leicestershire Local Family Justice Board’s ‘Transparency – Local Practice Guidance’ at https://www.llfjb.com/transparency-local-practice-guidance/):
‘Writing in The Times on 28 April 2009, Camilla Cavendish, a leading campaigner for greater transparency in the family courts, made the point that “The door is open, but we desperately need more journalists to pick up a torch and walk through it”. That has not happened. In my experience media attendance in the family courts is rare. In the last six years there has only been one occasion when a duly accredited media representative has been present in my court. I believe that that is the experience of most family judges.’
Amending the FPR to permit recognised legal bloggers into court hearings could be a positive step. But what will they be allowed to comment upon?
Of course, the conversation always comes back to – as it must – the impact of all this upon the children who are at the heart of most decisions in the family justice system and yet are the ones given no choice about their involvement and little opportunity to express their opinions about it. One member of the audience raised her clear concern about the ‘life-long stigma’ that could follow children who found themselves and their troubled family history identified in the press and social media.
If only one positive step forward comes out of the discussions at the 2018 BLML, I hope that it is towards a commitment for more thought and evidence gathering about what exactly children do want and need and how we can secure that. Mr Justice Keehan referred to research that shows most young people do not welcome greater reporting about their court proceedings – but we do need to recognise the limitations of that research, most notably in the small and self-selecting sample group involved (see the July 2014 NYAS/ALC Report ‘Children and Young People – Next Steps in Media Access’).
If it is indeed the view of the majority of children that they do not welcome more openness in court – what can we do to manage and reduce those entirely reasonable concerns? Can we not benefit from more consideration of other jurisdictions where there are less stringent restrictions on reporting about juvenile courts, or operate from a presumption of ‘presumed open court’ (with anonymisation) as in the Court of Protection? Or even from our own criminal justice system where child victims of abuse are protected against identification? See for example the case of Marie Black – it was not suggested that her crimes should go unreported for fear of identifying the children who were victims of them. Those children were instead protected by strict reporting restriction orders (see: https://www.theguardian.com/uk-news/2015/sep/28/norwich-paedophile-ring-marie-black-jailed-life). The criminal courts also appear able to protect the anonymity of complainants in rape cases.
The tension remains that we are attempting to weigh against each other two very important considerations; the protection of the welfare of individual children as against the impact of lack of reporting on public trust and confidence in an entire system. The issues raised by both McFarlane LJ and Louise Tickle suggest that there is now a worrying body of evidence that the family justice system has not paid sufficient attention to how the weight and impact of these issues has shifted over time.
I appreciate this is going to require some considerable thought, as it represents for most family practitioners a shift from ways of thinking and operating that have dominated for decades. Thus we do not at present have the kind of infrastructure or administrative support to make this any easier: the President referred to the significant difficulties for judges who not only work under great time pressure to produce judgments as quickly as possible but are then expected to ensure that this judgment is rigorously edited to reduce any possibility of ‘jigsaw’ identification of the children involved.
The Transparency Project will continue its work to promote both passive and active transparency in the family justice system. In May 2018 we are launching a further guidance note about the use of experts in children’s proceedings and on 15 September 2018 will host the third multi-disciplinary child protection conference (CPConf2018) examining the use of risk of future emotional harm as a justification for the state removal of children. However, I suggest that we should permit ourselves only a limited period of time to continue to identify issues and ask questions about them. Issues of lack of trust and understanding about the family justice system are unlikely to dissipate or even remain constant. Lack of trust is corrosive and needs to be tackled before serious and long-lasting damage is done to the very structure of our family justice system and the rule of law.