‘Family Law’ publishes a regular blog series by The Transparency Project. This post originally appeared in May 2017 at [2017] Fam Law 564. It is reproduced here with kind permission of the publisher.

On 5 April 2017 The Transparency Project held a panel discussion at Gresham College, London. entitled ‘Reporting family courts – are we doing it justice?’ At that event we launched our Media Guide for journalists who are interested in reporting on such matters. The discussion and the guide are two small steps intended to nudge us closer to being able to answer the proposition with a ‘yes’. But we are not there yet. Copies of the Media Guide were provided to all who attended and can be downloaded for free from our website.

The evening was a great success in bringing together different interests and perspectives and as a springboard for further dialogue. The event was oversubscribed and we were very pleased with the range of people who had registered. We therefore had an enthusiastic audience, as impressive as our panel, and the discussion was lively and constructive.

No doubt the membership of the panel was a big draw: Mr Justice Peter Jackson, Sanchia Berg (BBC), Brian Farmer (Press Association), Debbie Singleton (Association of Lawyers for Children), Gill Phillips (Guardian legal adviser), Dave Hill (past president of the Association of Directors of Children’s Services), Will Moy (Full Fact) and myself (as Chair of The Transparency Project) were all kept in line by chair and Gresham Professor Jo Delahunty QC. Contributions from the floor came from Joshua Rozenberg QC, Philip Marshall QC (Chair of the Family Law Bar Association), Jo Edwards (Past Chair of Resolution), Martha Cover (Association of Lawyers for Children), Owen Bowcott (Guardian), and other journalists, lawyers, Mckenzie friends and adults who had been involved in family court proceedings themselves. A video recording of the event will be published on The Transparency Project site in due course. Here we simply summarise some of the themes and ideas which emerged, and some of the responses to the event.

Whilst unsurprisingly there was no obvious agreement on how far we can and should take transparency, there were some areas of consensus – that achieving transparency was a ‘work in progress’, and that talking about it and familiarising ourselves with the processes and perspectives would help us find ways to do it better. For me, the thread running through the discussion was that we need to stop being frightened by transparency and instead need to gain confidence and competence through familiarity. What does this
mean? It means:
o Becoming more familiar with the processes and pitfalls of anonymisation so that it can be done better, quicker and more reliably;
o De-sensitising lawyers and parties to the presence of journalists in court. (They have been permitted to attend most hearings since 2009 but their attendance anywhere except the Royal Courts of Justice is so rare that hackles can be raised). Mr Justice Peter Jackson was fairly relaxed about this, even suggesting that journalists who wanted to sit in to look at process, rather than an individual case, should simply contact the Judicial Press Office which would identify a judge whose list they could sit in on and it may be that hearing this said will itself make those who have not encountered journalists regularly feel more at ease;
o More consistent understanding of what can be passed on to a journalist and why – both parents and journalists reported high levels of confusion and anxiety about what the rules meant in practice – this is something on which we may consider producing some further
o Helping journalists to achieve greater consistency of coverage through the provision of basic topic headings on court lists, whilst also acknowledging that press coverage will never be a representative sample of the work of the family courts;
o Helping journalists to achieve consistently better quality reporting through the provision of summaries of judgments (either the Supreme Court model or by précising the judgment at the outset of it). Brian Farmer of the Press Association, delivering the line that got the biggest laugh of the night, said that it was often forgotten that journalists are not lawyers – and whilst the High Court Judges who write the judgments have brains the size of the Milky Way, he (having only a brain the size of a milky way) would be greatly assisted by a summary.

Whilst Martha Cover of the Association of Lawyers for Children proposed that the guiding light when considering publication of information should be ‘do no more harm’, Mr Justice Peter Jackson took issue with the idea that this necessitated the airbrushing the details of abuse from judgments, as suggested by Dr Brophy in her draft guidance on anonymisation. He described one instance in her report where a judgment he had written had been criticised for excessive details. However, the teenaged children had fed back to him that they had in fact felt it important to have their story heard and told. This was a powerful illustration of the need to check whether our fears about the impact on children and adult parties are grounded in evidence and in reality (as I have highlighted before, most recently in March 2017 in my article on the Justice Gap blog, see ‘Transparency in the Family Courts evaluated – could do better’. While we should not be complacent, there is actually very limited evidence of actual harm caused by transparency reforms or anonymisation failures, and the greatest source of fear, risk and failure may be our collective lack of familiarity with the nuts and bolts of transparency and with the different perspectives of subject, lawyer, judge and journalist.

The discussion reinforced for me that the press are not there to do public relations work for the courts and, while they are often called a ‘watchdog’, they are not in fact responsible for transparency. The newspaper industry is going through a great deal of upheaval in trying to make its business model work in the internet age. It is naïve to think that the press can be forced to cover all cases or even a representative sample but we can encourage more responsible reporting by praising and recognising it.

During the week this event took place, there was a huge amount of conjecture and unhelpful comment on social media about a police enquiry into the disappearance of a mother, Samantha Baldwin and her two small boys. The fact that there were ongoing family court proceedings, subject to reporting restrictions, had led to very worrying reactions amongst the public that she must of course be a victim of ‘secret corrupt family courts’. We hope that by the time this column is published, the mainstream media will have had an opportunity to correct the record and that the public will have a better information base upon which to build their own views about the case and what it tells us about the system in general.

Making judgments available is not equivalent to open justice – we must do more than simply sticking judgments on BailiiI never to be read. At The Transparency Project, we provide summaries and explanations of as many newsworthy judgments as we can, corrections where there is misreporting and match and signpost between news articles and the full judgment. We also try to ameliorate the sometimes distorted picture that comes from the media gravitating (understandably) towards cases featuring big money and local authority failures, by covering some typical run of-the-mill cases that are unlikely to be picked up by the press. We can use these alongside the atypical but high profile cases that do reach the press in order to demonstrate what is typical by comparing and contrasting. So by way of example, the very unusual but
widely reported case of Owens v Owens [2017] EWCA Civ 182, [2017] FLR (forthcoming) has proved a useful platform for a discussion of how divorce works more generally.

Our event highlighted some encouraging steps forward. We learnt that the President of the Family Division is revising his guidance on the publication of judgments in light of the recent research funded by the Nuffield Foundation and carried out at Cardiff University by Julie Doughty, Alice Twaite and Paul Magrath, ‘Transparency through publication of family court judgments: an evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people’ (see above p
529). Penelope Gibbs of Transform Justice was one attendee who gathered her thoughts together in a blog post after the event (‘How to increase trust in the family justice system’) pondering amongst other things on whether there is a role for lay observers to attend family court hearings with supervision – an idea not unlike the original concept for The Transparency Project of sending ‘citizen journalists’ in the form of legal bloggers to observe and report cases. The practical barriers of finding time and bodies to attend hearings are no less of a problem for The Transparency Project than the commercial media organisations and so we have found and prioritised other ways of promoting transparency which fit our resources. But the possible court reporting project is not one we have abandoned – as a result of this event
we may dust it off in the coming months and give it some fresh consideration.

We will be continuing the dialogue about transparency in this regular column in this journal as well as on our blog, on which contributions are always welcome whatever your views. Our Family Court Reporting Watch project is ongoing with financial support from the Legal Education Foundation. Here we regularly clarify and explain family cases which we have seen in news reports or on Bailii, and challenge inaccurate reporting in our Weekly Round Up and additional blog posts. If readers spot cases which they think might be tough for the public to understand, which have not been well explained in the press or which might be a useful springboard to explain an often misunderstood aspect of the law – do let us know by emailing: reportingwatch@transparencyproject.org.uk or tweeting us at @seethrujustice.

Lucy Reed
Chair, The Transparency Project