Talking transparency to the President and panel

This morning I logged into Teams just before 9am. I was to give oral evidence to the President of the Family Division’s Transparency Review panel.

I was filling in a space that came free on Friday just gone – I was actually expecting to be asked to the session in May – so somehow grabbed a hasty hour yesterday to put together some preliminary comments. I think it’s really important to say ‘yes’ if you can to opportunities like this which come up unexpectedly, rather than put things off because you’re anxious you won’t be prepared enough, won’t be good enough, won’t do the best possible job you can. I mean, if I can’t answer questions about transparency in the family justice system now, when will I be able to? This is probably as good as I’m going to get!

The session was recorded, so at some point you will be able to see me answering the panel’s questions, which were all highly relevant and when challenging, entirely suitably so. God knows what I said now – it’s all a bit hazy – but I sort of think it was fun. More to the point, I really hope I managed to get across what I wanted to, but of course, you always kick yourself for what you didn’t say, and in one case, I felt I hadn’t given a strong enough answer. Hey ho.

Here, anyway, is what I started off with before the session was opened to questionns.

1 – I don’t think the status quo is sustainable, and I think that very considerable movement towards greater transparency will happen one way or the other pretty soon – possibly even a change in the law that bans reporting of what goes on in family courts. 
That change can come with impetus and input from within the family justice system, constructively meeting impetus and input from the outside… which would give the system more opportunity to comment on the changes, and help shape them, and build in thoughtful and well-informed safeguards, training, collaborations etc.

or… the family justice system, together with its culture of resisting openness that has percolated through almost everyone working in it like the word Brighton through a stick of rock, will find itself dragged kicking and screaming into a situation that it can influence little,…. and will lose even more public legitimacy in the process. 
Six years on from having started trying to report on this aspect of our justice system, and observing the vociferousness of the anger, the campaigning work, and the contempt with which the family courts are held by so many of those who use them, and by MPs and academics I talk to, who roll their eyes before launching into expostulations of outrage on behalf of their constituents, and detailed criticisms of what they think is going wrong…. my assessment is that this is pretty much now a situation of bend or break. 

2 – There is no point in fiddling round the edges. That was tried when journalists were allowed into family courts in 2009. It has proved almost entirely pointless. It could never have worked on its own given the restrictions that exist. And it hasn’t. 
There needs to be a change in the law, which I appreciate is not in the gift of this panel. But there also needs to be a sustained effort to secure a wholesale change in attitude in those working inside the system – not just the lawyers and judges, but local authorities and Cafcass, who have been protected from any really meaningful accountability for far too long, as human rights breaches highlighted in the very occasional published judgment demonstrate.
I have just set up a social enterprise called Scrutiny. It’s strapline is “Scrutiny keeps the state honest, and keeps citizens safe”. 
The organisation’s vision is for people to know that the state is enthusiastically openwilling to take responsibility for its mistakes and keen to learn from the harm it has caused. 
“Enthusiastically open” would be a very good starting place.

3 – I have had my applications to be able to report what goes in in family courts described as “satellite litigation” by two high court judges now. 
One was David Bodey (who actually gave me very extensive permission to investigate and report on a case for the Guardian, and who I was very pleased to get the chance to thank when I met him at the Judicial College a couple of years later). The other was Mr Justice Williams, recently. 
The point I want to make is this: a media application to be able to report on the detail of extraordinary powers exerted by the state that would otherwise happen in secret is not, in my view, when looked at properly, “satellite litigation.” 
Citizens and media ability to effectively scrutinise the various arms of the state is fundamental. A healthy democracy demands it. 
When enormous state powers are wielded in secret, the expensive, time consuming, onerous efforts by the press – or indeed by a party – to open up whatever has happened to public debate, should be viewed as a valuable opportunity to be accountable for a system that normally operates in the shadows. 
Open justice is not an add on. It is not satellite. It is critically important, most of all to the most vulnerable people the system exists to serve

4 – Finally, when I started off as a freelance journalist, 20 years ago… and I got lots and lots of knockbacks….I had this quote blue-tacked to my wall over my desk. It was there for years: it’s by Calvin Coolidge, who was an American politician and lawyer who served as the 30th president of the United States from 1923 to 1929. 
It goes like this (you may know it).
“Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent.”The calls for more transparency, scrutiny and accountability in the family justice system are not going away. And because they are based both on people’s real experiences of injustice, as well as widespread and deep perception of injustice, my sense is that the more they are resisted, the more persistent – and irresistible – they will become. 

Questions you just don’t ask

Second bit of blogging today. Shorter, I hope. But no less moany (sorry).

This morning, I explained that at the start of the hearing I attended this week, the judge asked me a question: she wanted to know why I wanted to attend that particular hearing.

This is problematic. But before I say why, I’ll explain something that happened before I attended a different remote hearing, a few weeks ago.

I had emailed to find out how to log in to this hearing – at that point I only had the case number, so I asked the Judicial press office to enquire for me. If I’d known who the judge was – I don’t think one had been assigned at that point – I’d have emailed the clerk (again, by going through the Judicial Office Press Office to find out what the right email address was). I don’t suppose the press office adores these requests of mine, because I don’t think it’s strictly their job to sort out media attendance (they are very obliging, nonetheless!), but I had earlier written to the supposedly correct email address and hadn’t heard  back.

I was helped out by a couple of people in the court service, and my email explaining I wished to attend the hearing was passed to the judge, as by that time, one had been appointed to the case.

I then received an email from the judge. He wrote that he was interested to know the basis on which I wished to attend the hearing. Had I been asked to attend by one of the parties, and if so, which one? Or was my interest in the case “non specific”.

Sooooo many problems with this too!

Let’s unpick why these judges’ questions make me so uncomfortable.

First of all, accredited media can attand most private family court hearings as of right. I don’t have to explain to anyone why I’m there or how I found out a case was happening.

There could be times when to do so would involve me revealing a source. Revealing sources is something journalists shouldn’t do. Particularly when my distinct sense is that if I were ever to disclose that one party (or maybe an organisation) had either suggested I might, or positively asked me, to attend (and people do, ALL the time), the judge might well take quite a dim view. Not to mention the aspersions that would doubtless be cast on a party for having done so, by the other side.

But… but… picture this. At the point at which a judge is deciding on the objections to me being there that are often raised by one or more of the parties, it would set a hearing off to quite a confrontational start if I was to refuse to answer a question such as “why are you attending this hearing?” or “has a party asked to you to attend?” by saying something along the lines of:  “I am entitled to be here, and my right to attend is not contingent on the court understanding my reasons for choosing this case”. Hoity toity or what?

Still… I think from now on, I am going to have to take this approach.

In the case I mentioned above, I was able to say, perfectly truthfully in response to the judge’s email, that no party had asked me to attend. In the second case, I simply said that I was attending a number of cases during the pandemic, and was interested in remote hearings. That too was true. But I now wish I hadn’t responded to either question, but had simply said “I never justify my attendance – I may come to court as part of my job, and so I do.”

Another thing judges – and counsel – have asked me, which can also be tricky:

“What are you wanting to write about this case?”

I do not have to explain to anyone, before I’m allowed to attend, that I intend to publish anything that I may lawfully report without permission, much less what I intend to write about.

Further, once I’ve attended a hearing,  the fact that I have published something should not be any reason for criticism – whether implied, as per Wednesday’s skirmish – or explicit, unless someone is saying that what I have done is unlawful.

So, to sum up;

Don’t ask me what I’m doing in court.

Don’t ask me how I found out about the case.

Don’t ask me – or assume that you know – what I’m going to write.

And don’t raise my reporting with the judge unless you are going to argue I’ve done something wrong.

Or – as neutrally as I possibly can (and this will be a stretch, given the indignation that will be surging inside me) – I am going to have to push back.

 

 

 

 

 

To tweet, or not to tweet (about a family court case)

On Monday, I attended a  family court hearing at London’s Central Family Court – in very general terms, it was a private law dispute about contact with children, of which many thousands are  heard up and down the land every day. It was a hybrid hearing, which means that some people are in court, and others attend remotely.

In this case, the judge and two counsel were in court. The expert giving evidence was remote. On that day, the parties, the Guardian, and counsel for the Guardian were also logged in from home, as was I. I think there was also a local authority social worker logged in remotely.

At the start of the hearing, the judge, HHJ Brasse, asked me why I wanted to attend this particular hearing. It was asked in a perfectly friendly way, but it is not a question I think a judge should ask, and I’ll come back to this in a second blog.

She welcomed me to the hearing, and made it clear to all parties including me that I could not report the detail of the case without making an application to the court – she had clearly anticipated that this was something I might want to do. That is always welcome, because it means in my experience, it means it’s likely a judge will ask at the end of a day’s hearing if there is anything the media might want to raise. This is really helpful, as it is nervewracking – whether in physical court or remote court – to raise your hand and go ‘ahem, excuse me judge’ when everyone is briskly packing up for the day.

Anyway, I was only able to attend 90 minutes or so of the hearing on Monday. I tweeted as follows that same evening:

Screenshot 2020-08-12 at 12.00.18

(This is not a post about the merits or otherwise of different types of hearing, but I point out that family barrister Lucy Reed, responded to my tweet agreeing, while pointing out that for parties themselves, it is sometimes their preference to be able to give evidence, in person, in front of the judge. Clearly this is a very important reason for attempting to ensure fair process in a way that works for the people who are most directly affected in a case).

As you will see in the tweets, there is no reference at all even to the general gist of the case I was attending.  Case law has confirmed that I am permitted, even within the constraints of S12 AJA and S97 Children Act, to give a broad outline of the matters being considered in a private family court hearing. What I am not allowed to do is go into any detail. In fact, I hadn’t done either.

On Wednesday, I had time to attend again (this is all unpaid, uncommissioned, and with very little likelihood of ever being able to publish much if anything about the case, but I’m interested in family court cases, so attending is something I try to do, when I can; especially during the pandemic, it feels important to me that the media’s watchdog role is made use of, when state powers are being exercised remotely, and there has been so much concern about the fairness of hearings, and attempts to work them better in the interests of all parties). Before the case got underway, the judge said hello to everyone, noting that I was present again, and said something along the lines of ‘shall we get on’.

The following narrative is what I have just sought and gained permission to publish – though I feel it is ridiculous that the way the law is framed requires me to do so in order not to risk being in criminal contempt (everyone who knows about S12 AJA thinks it is very poorly drafted, and this unfortunately, is the result).

Wednesday’s hearing

At the start of the hearing, counsel for the Guardian, Giles Bain, said he wanted to raise with HHJ Brasse that I had tweeted two tweets about the part of the hearing I attended on Monday. He did not inform the judge what was in the tweets. He said he wanted to raise the fact that I had tweeted about the case so that the judge was aware.

I felt astonished. What I had done was completely within the law, and entirely unremarkable. What on earth was he playing at, I wondered?

Given the way this matter had been raised, the judge, I think  perfectly understandably, did indeed express her surprise and dismay that such a thing should have happened when she had made it clear at the hearing on Monday that I would need to make an application to report on the case. She then invited me to respond.

As you can imagine, I was pretty cross.

I explained that I had tweeted no detail at all about the case, but had simply commented on Twitter that having now observed a hybrid hearing earlier on that day, and comparing it with fully remote, I felt that hybrid was considerably worse.

I also said I was frustrated and angry at the suspicion I meet with regularly from counsel, to the point that my tweets are now being monitored, and points are raised about entirely innocuous reporting that might give alarm to a judge, without explaining the content of what I had said.

I pointed out that the law permits me, in any case, to report the general gist of any private family law case without special permission, but simply not the detail.

I made the point that I was not at all happy that the fact I had simply tweeted about the hybrid nature of the way the hearing was being conducted had been raised in such a way as to make the judge feel – in that moment – concerned.

And then I drew breath and thought I should probably stop .

The judge immediately said that now she understood what the tweets contained she was not concerned about them.

Giles Bain then protested that he had simply raised with the judge that I had tweeted about the case, and his comments had gone no further. I should clarify here that in this morning’s hearing, he said that in raising the fact of the tweets, he had specified that he took no issue with their content. I don’t recall him saying this. If I had heard this, I think I might have been less indignant at the time. But I may be misremembering. And I should also note that it is also perfectly possible that he raised the issue of the tweets on instruction.

Back to the hearing on Wednesday:  having thought I’d said all I needed to say, I now felt I had to pipe up again to pount out that I had not in fact tweeted anything at all about the  case.

The judge reiterated that she was not concerned about the tweets.

It felt like a very sticky start, and unneccessarily so.

___

Why does this matter – why am I so cross?

It’s just this: I am getting very tired of encountering what feels like passive aggression when I attend family court hearings that the media has been entitled as of right to attend for ELEVEN years.

I think it is unfortunate, to say the least, when entirely lawful and unremarkable reporting is “raised” by counsel with a judge in a such a way that will inevitably cause alarm.

While in this case, nobody sought to exclude me from this hearing, and the judge has continued to clarify that I am welcome in her court, I also observe that my overall experiece is that some people – generally Guardians and local authorities, and certain counsel,  very rarely parties – seem at times to be inherently hostile to a journalist taking up their right to attend.

By raising the fact of the tweets AT ALL, given their entirely lawful content, the barrister seemed to me to be, for some reason, making something out of nothing. What was the point of raising perfectly ordinary, unremarkable reporting, leaving out the content of the tweets which would have made it obvious just how innocuous they had been? In my view, it wasted everyone’s time. Basically, there was nothing to see here.

I should note that in today’s hearing, that I am just out of, where I asked for permission to report what happened, the judge said again that “having seen the tweets, I’m not concerned about their content at all” and further, said that she did not think it was anything to do with the court.

She later said “Mr Bain properly brought them to my attention”.

So I’m a bit confused. If every time a journalist writes or tweets a lawful report about any part of the justice system, and counsel keep bringing it to the attention of the judge, then an awful lot of time is going to be wasted on something that is of zero relevance to the case in hand.

Now to the issue of judges and the questions they ask – will post that this afternoon as I have to scoot.

 

 

 

 

 

 

The family court in lockdown – part 3

An incursion

2pm – Lunch despatched, I’m back in court for the final case of the day. This is a hearing about the making of a special guardianship order.

Bristol City Council is the local authority involved, and it’s another case where the pandemic has adversely affected children who are urgently in need of a settled home: the transition plan created for these siblings to move from foster care to relatives has been impossible to put into effect because of lockdown restrictions.

We access the meeting log-in. The judge goes through all the usual warnings; make sure you’re alone, no recording, this is a private hearing. There are no objections to me attending.

The parties and their counsel appear on screen. From what I am able to make out – introductions go fast and I’m not familiar with the case – for the LA there is a barrister and two social workers; the mother’s barrister but not the mother; the Guardian’s barrister but not the Guardian. One father has no facility to join remotely; one father has had to go to work and sends his apologies. The prospective special guardians are in attendance and visible, sitting in what looks like their living room.

This is effectively a hearing to update the judge as to progress, or rather, thanks to lockdown, lack of it.

As the barrister for the Guardian makes her points, it’s suddenly apparent that someone is approaching the open patio door behind her. A teenager in shorts and t-shirt wanders into the room. Everyone watching can see. It takes a couple of seconds for the Guardian’s barrister to grasp what’s happening behind her.

Horrified, she turns around and says something to the effect of “You have to leave. Now.” She says it again, with increasing emphasis, at which point the teenager skips across the screen and out of shot.

Profuse apologies follow. The judge is understanding.

Fortunately, this is not an upsetting hearing. Children are not about to be removed from their parents, as was the case at the morning’s interim care order application. We are not in a hearing with a mother in hospital, who, having just given birth, is facing the loss of her newborn compounded by no physical contact for untold weeks. So on this occasion, the fact that the solemnity of the courtroom was broken didn’t actually hurt anyone who was already in a  vulnerable position.

But it demonstrates clearly one of the dangers of remote hearings under conditions where people have no option but to work from home. To me, it was a graphic example of how, despite everyone’s best intentions, virtual hearings could go badly wrong for someone who has to enter the family justice system at the most distressing time of their life.

The family court in lockdown – part 2

 

Another quick (I hope) post to detail the second hearing I attended in a Bristol family court yesterday.

12 noon: Next up is a private law case, with ex-partners appearing in person (ie, without a lawyer to represent them). Judge Wildblood tells me it will be done by telephone, using BT MeetMe. He puts his loudspeaker on for me to hear the parties. This means I don’t need to dial in as I did for a previous remote telephone hearing I attended, when I was sat in my study at home.

The woman is dialled in first. She comes through loud and clear. Her ex partner is dialled in next. He is quite muffled but just about audible for me – I imagine it’s a bit better for the judge, who is close to the speakers.

Judge Wildblood takes both of them through the usual warnings about confidentiality, no recording, are they alone. Then he informs them that a journalist is in court, ‘as the press is entitled to be’ and asks if they have anything they would like to say about that.

The woman says “I don’t have a problem with that”.

The man does have a problem. “This is my child and I’m not happy to have a journalist hearing my personal details” is about what I can make out.

Judge Wildblood explains that there are only certain lawful grounds on which he can, if he agrees with a party’s objection, exclude a member of the press. He goes through the reasons (I should know these off by heart but ALWAYS have to look them up). Here they are, bowdlerised from Adam Wolanski QC and Kate Wilson’s super document on reporting family courts produced in 2011 (Transparency Project, really sorry, I looked for them in your also super Media Guide, but couldn’t instantly locate them – so shoot me):

The media may be excluded from all or part of the proceedings if it is necessary (my emphasis) on one of three grounds specified or if justice will otherwise be impeded or prejudiced.

The three grounds are that it is necessary (my emphasis) –

  • in the interests of any child concerned in, or connected with, the proceedings;
  • for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness;

or

  • for the orderly conduct of the proceedings.

The judge also explains that I will not be able to report any details of the case, or anything that could lead to him or his children being identified. Given that, he asks, does he still have an issue with a journalist being in court?

The man does, saying he has had a poor experience of the media in the past. I have decided not to be any more precise about the substance of his objection in this regard.

The judge then asks me if I would like to say anything in response. I’ve decided that I want to continue to attend this hearing, and I don’t think any of what the man has said amounts to a legitimate ground for me to be excluded.

I say:

  • a simple preference that a journalist is not in court is not a valid ground on which to object to the media’s presence
  • I’m sorry he has had a bad experience of the media before, but I think it’s important that the media is able to attend private hearings to scrutinise how they operate, and particularly so in lockdown when they are being held remotely
  • I think should be allowed to stay

The man isn’t able to hear much of what I say, but the judge briefly recaps. It is evident he is still not happy, but Judge Wildblood decides there is no valid basis on which he can ask me to leave the courtroom, and continues with the hearing. It feels like a sticky start. I don’t envy parties or judges being caught in the middle of this sort of difficulty at the beginning of a hearing about your  family life. But that is where the legislation has left us.

This  is a directions hearing, where the judge helps parties to sort out what has to happen before the next one. Because both parties are litigants in person, the judge has to take them painstakingly through what will be required.

It becomes clear that the man has fundamentally misunderstood how he will have to engage in the next hearing, and the judge clarifies what is required and spells out to him the paperwork and process he will need to undertake. If this had not been done, it is absolutely certain the man would have been fatally disadvantaged in his case when he next came before a judge.

Judge Wildblood  also warns them that the chance of them being able to have a hearing in a physical court with a real live judge is going to be difficult not just in the short, but even into the medium term future. The judge asks them “can you think about whether you will be able to accept a hearing by Teams or Zoom, or whether you want to come to court?” he says. “Don’t answer now, but by the next phone hearing.”

This case has been going on for many months already. The next phone hearing is fixed for midsummer. It will clearly go on for many months more before any resolution is achieved for this separated couple and their children.

The judge finishes the call. “Because they are litigants in person, I have to go and draft the order now” he says with a wry smile.

12.45 – I spend lunchtime totally alone, perched to eat my oatcakes and wedge of Brie on top of one of the inexplicable concrete plinths randomly plonked on the plaza in front of Bristol’s Civil Justice Centre.

1.45 – I head back into court. Again the lobby is deserted and so I whizz up to the fourth floor in the lift.

To be continued….

The family court in lockdown

Here’s a very quick, diary style post about my day spent in court 17 at Bristol’s Civil Justice Centre on 28 May 2020, as the family justice system grapples with the practical, moral and emotional implications of hearing family cases during the coronavirus pandemic.

9am. Arrive at the court and go through security. Nobody else is waiting to go in, or I’d have had to queue – no more than one person at a time may now step inside the glass doors  to have their belongings checked and go through the body scanner.

The security manager tells me that people entering the court will have to take out all the contents of their bags and pockets and put them in one or more of the five red trays laid out on the table. Then they will step back as security checks the items.

Once that’s done, they may step through the scanner. I point to the scanning wand used for when your belt goes beep. What will happen about that, I ask? You’ll have to come within two metres to scan people. The security manager nods. They’ll have to try to scan people as little as possible, he says. How long does he reckon security checks will take per person, I ask. About three to four minutes, he tells me.

There is now a one way system for the lobby, which you have to walk through to get to the lift. Only one of the two lifts is working. This is a modern court centre on four floors; lifts are essential. But only one person may travel at a time in the single operational lift. And stickers on the floor show that only a maximum six people will be allowed to queue for the lift after getting through security. Meanwhile, court users will be queueing outside to get into the building. Lucky it’s nice weather at the moment. In winter on a busy court day, if you’re elderly, or infirm, or if you have a baby in a buggy, that wait could be less than fun. There’s no shelter.

Back inside, as the lobby is deserted I march straight to the lift and head up to the first floor to check in with the ushers. Colin the head usher is sitting behind the main welcome desk, socially distanced from the milling public (none of whom are in today) by yellow and black incident tape that’s been installed on poles at just below waist level.

Colin takes me to a court that has been newly set up to operate on a socially distanced basis. He’s done two per floor so far.

In this small court, he’s removed chairs so there are now just two chairs per long bench, rather than the usual six. The ‘witness stand’ is a chair in the corner of the room, at the end where the judge sits. Colin does all his measurements with a two metre stick, and has spent days if not weeks going around the entire civil justice centre making sure that no-one will sit or move closer than two metres to another individual.

The biggest court here, which would typically be be employed in long-running, highly contested cases with large numbers of parties (and their accompanying silks, juniors, solicitors, note-takers, social workers and expert witnesses) has a total capacity of 85. But it can now accommodate only 15 people, along with the judge and a clerk. Almost all the chairs in here have been removed,  stacked and taped off at the back. How will these big cases be heard now, I wonder.

Back in the main waiting area, and I see that only one person can go into the loo at a time. Colin has niftily taped labels on the doors which you’re meant to turn around so it says Engaged when you enter. I am here all day, and keep forgetting to turn it back to Vacant on the three occasions I come out. Sorry Colin.

I glance up the staircases that lead up to the next floors. No way can two people pass by each other while keeping two metres apart. Even one metre is doubtful. That one working lift is going to be busy.

Remote hearings in lockdown

9.45am – Designated family judge Stephen Wildblood is sitting in court 17. This court hasn’t been taped out so it’s socially distanced, but it’s just him and me in today, so it’s easy to observe the rules. Judge Wildblood puts a spray bottle Dettol in front of me, together with a wad of kitchen roll, so I can clean my desk top.

I sit in for three cases. In this blog, I’ll describe the first one  (as it’s not long till teatime and the kids want barbequed burgers) and the other two later.

This case is an application for an interim care order. This means the local authority – Bristol City Council – is asking judge Wildblood to agree that the Police Protection Order***  under which a young child was removed in emergency circumstances from the care of her mother (PPOs last three days, and this one is about to expire) can be replaced with an order that – without prejudice to any eventual outcome – means the local authority retain the care of the girl, who is now in foster care.

*** Note added at 7.45am the morning after I posted this blog: It has now been pointed out to me by a social worker, a law lecturer, a barrister and a solicitor that there is no such thing as a Police Protection Order. Police can remove children with no notice under police protection powers, but there is no judicial oversight of this action, which is why the power only lasts for 72 hours before the removal has to be examined by judge. At that point, the judge can either make an order to keep the child in care, or refuse, at which point the child must immediately be returned. In my defence, the term PPO was used in the hearing, so I thought it was correct, but actually, if I’d thought about it a few seconds longer, I’d have worked out that there is no order at that point because no judge. With her permission, I quote the solicitor Emily Boardman’s message to me: it said “The use of PPO is my absolute bugbear though – professionals use it sloppily to indicate to parents it is more powerful than just a police decision – so they elevate it to an ‘order’ when it is not.” Something to cogitate on.

10am – The hearing starts. The judge takes everyone carefully through the points that there must be no recording or its a criminal offence, that everyone must be in a private space and alone, that it’s a confidential hearing, and that everyone must be able to hear throughout, and to alert him if they cannot.

Before I’m allowed to join the meeting, and the judge states to all on the Zoom call that I am in court, physically in front of him, and that I am entitled to be there. (Everyone has been informed in advance I wished to attend). He carefully checks that nobody wants to object to my presence. Nobody does, but the mother’s barrister says that her agreement is contingent on my video being turned off. It seems entirely reasonable that a mother  who is anticipating the enforced loss of her child does not have to engage with a journalist’s face on a computer screen if she doesn’t want to, so that is quickly agreed. (In fact, I wonder if that might be a really good idea for future hearings? I’d be interested to know if people think there are advantages to a journalist being visible in a remote hearing? I think it is potentially distracting for parties, and unnecessary.)

I enter the Zoom, and it’s realised that I’m on a log in that shows my partner’s name. He installed it on my laptop, I realise with a sigh. Luckily, this is dealt with calmly by the judge, who spares my blushes. He is also Zoom savvy enough to be able to change the name that shows against my blank postage stamp presence. Note – make sure you are set up as yourself on whatever virtual platform you enter remote hearings on: as a journalist, you don’t want to create problems.

It emerges immediately that this has been a very heavy week for Bristol child protection social workers. Workloads are stretched.

At some point the mother’s connection drops out. This is realised by Judge Wildblood after the Local Authority, Children’s Guardian and mother’s barrister have made their points.

This is clearly not good. The judge tries to log the mother back in. It doesn’t work. The local authority barrister tries. It doesn’t work. The judge says he will try again using a different method. Again, no contact can be made.

I think of that woman, all by herself, at home in lockdown, unable to hear at least some of what has gone on in court relating to a distressing decision about her child. Whatever the circumstances that led to this hearing, she will be anxious for her daughter. And she will not know how she is going to get back into the hearing.

At this point – again, very calmly; the whole hearing is very measured – the judge asks the mother’s barrister if she can phone her to ask her to log back in. She has her number, the barrister says, but the mother is using her device to attend the hearing.

She calls her and the mother is logged back in.

The judge then checks if the mother has heard what her own barrister had said. “No,” is the answer.

“Did you hear what the Guardian’s barrister said?”

“No,” she says. She is evidently distressed.

The judge asks the Guardian’s barrister and the mother’s barrister to repeat what they have said. They do so, fully.

This has all added ten minutes to the hearing.

Soon after there is a 10 minute break for the advocates to meet and discuss a few points. The recording is stopped, and the judge and I both exit the courtroom to ensure there is no technical glitch that means we can hear what people are saying.

Outside the court,  judge Wildblood tells me that when cases resume in front of him with people attending in person, he will insist that there is break every hour for all those in the hearing to wash their hands. So we now take the opportunity to go and wash our hands. How long this will take if people in a ‘normal’ sized hearing go out two by two for handwashing, (only one person per toilet, remember)? About 25 minutes, he reckons. Hearing time will be reduced, he assesses, from 5.5 hours per day to about 4 hours per day. That’s drop in capacity of just over a quarter.

The hearing resumes.

For the first time, the mother is now seen clearly, as she moves from silhouette in front of a window to another part of the room. She is managing to cope with the hearing, but is evidently extremely upset. It strikes me again how very difficult it must be for any parent faced with losing the care of their child not to have the reassurance of sitting next to their solicitor who can take them, minute by minute, through what is happening, and what is to come next. I’m sure those conversations still do happen by phone, afterwards. But at a human level, it is hard to watch anyone suffer in this way, alone, with no opportunity for human contact.

The judge says he will make the order asked for. He emphasises to the mother that this is without prejudice to any eventual outcome, and also emphasises that he is sure that opportunities for contact between her and her child (which must now be done remotely) will be facilitated by the social workers.

About 15 minutes in, the Guardian’s barrister notices that the recording has not been restarted. That means the judge now has to recap everything that has been said. The recording is restarted, and he patiently does so. There is only one way to approach remote hearings, I realise – with a determination to exert a Buddhist sense of calm.

As the hearing concludes, the judge checks methodically if anyone has anything to add. At the end, he asks me.

I ask to be able report the figure cited at the start of the hearing for the high number of referrals made to the council’s child protection team on a particular day this week.

The judge has no issue with this – it has no relation to this actual case –  but asks the social worker if she would like to refer this request up within the council. She nods, and says she will do this, but also says she has “no issue with confirming it has been extremely busy this week for Bristol Children’s Services.”

Everyone is thanked. The recording is stopped. I leave the Zoom call.

….. right, I need to go and do bedtime now. I’ll do another blog about hearing two and three – much shorter ones – later.

Freedom of expression doesn’t just arrive on a bleedin’ plate

When a child’s privacy rights compete with the right to impart and receive information, sometimes, the media has to take the trouble to argue its case.

Last week I got an email from Brian Farmer, the PA reporter on family courts. He’d just been alerted to two judgments, then up on Bailii, written by Mr Justice Hayden.

One judgment told in great detail of the very serious failings of the disabled children’s social work in an unnamed local authority.

The second told of how the local authority and the Children’s Guardian had asked for the name of the council to be anonymised.

It was made clear in that judgment that the media had not been put on notice of the council’s attempt to restrict its name from being put in the public domain – the judge pointed this out, and said it should have been done. It was also clear that the judge had rigorously tested the local authority and Guardian’s barristers as to their evidence on the risk of identification of the children if the council should be named, and whether this would put them at unacceptable risk of harm. These are the right tests. And he decided, on balance, that the council should remain anonymous. This means that he felt the public interest was outweighed – but, I sensed, only just – by the risk of harm to the boys.

One sentence in particular stood out from the judgment concluding that the council could not be identified – the judge said:

“I do not think that I have ever had to criticise a Local Authority to the extent that I have found it necessary to do in this case.”

Mr Justice Hayden is a very experienced high court judge. As such, this sentence is remarkable. And it meant I felt that the media absolutely had to try to persuade him that the public interest was so overwhelming it had to be named. At that stage, I didn’t know which council it was. Nor did Brian Farmer, who felt just as strongly as I did that we had to challenge the ruling.

Despite the care Hayden had very evidently taken to take account of Article 10 freedom of expression rights – which is not just the right of the media to impart, but of the public to receive, information – I was pretty indignant. The outcome for two children had been disastrous, in very large part because of really culpable failings of social work practice in the team which dealt with disabled children. These failings had been going on over a long period of time. The family had, again, not solely, but substantially as a result of these failings, ended up being split apart. Two brothers who had dearly wished to grow up together, now could not. One of them, a severely disabled child, now lived in an institution. This, absolutely tragically for this child, had not needed to be the case. It was, in short, an absolute shitshow, and Hayden did not hold back from saying so. I felt we had to challenge his ruling on anonymising the council – and I also felt he should not have taken that decision without involving the media. Somewhat ironically, I pointed out to the judge in an email, his ruling on banning the name of the local authority without the media having been in court to contest it was handed down on the very day the President’s consultation for his Review into transparency in the family justice system closed to submissions.

In the same email, I also asked if he might be willing to take down the judgments so that, together with the counsel for the various parties, Brian and I might be able to try to locate certain details that were particularly identifying, If they could be removed, thus mitigating the risk of the children being identified if the council was to be named, we might, I reasoned, stand a better chance of making a successful case.

Very helpfully, Hayden agreed, though only the substantive judgment was taken down off Bailii. The one which detailed the reasons why the press could not report the name of the council remained up – this still had quite a lot of detail about the case. But very far from all of it. The judge also immediately listed a hearing for the media to make its arguments for 2pm on Monday 18 May.

Meanwhile, Brian had managed to identify the council without needing its name, just from the detail in the judgment. I’d tried, but hadn’t managed it, but he is a better Google researcher than me, and the judgment had specified there had been previous media coverage of this family.

Last Thursday, he and I had a Zoom meeting with the advocates. We realised quite quickly that it wasn’t going to be possible to remove anything from the substantive judgment that would make much of a difference to the level of risk that the family might be identified, should the council be named. So that was a dead end.

The next day – last Friday – Brian wrote to the judge setting out his arguments, and after doing my nightmare afternoon session of ‘home-learning’ with the kids, I managed to send mine in too at just after 6pm. I’d used the time between the advocates meeting and Friday to do some research. And I found out that Ofsted’s most recent full inspection, just 18 months before, into this local authority’s children’s services had found it to Require Improvement in all areas. Inspectors had also been highly critical of its disabled children’s social work team. Extraordinarily, their criticisms were virtually identical to those that the Guardian and the judge had identified, and which had led to such a terrible outcome for the family.

This felt really important, and I suddenly felt that maybe we had a chance.

There had been a recent ‘focused’ inspection into the local authority too, late last year, which had been much more positive. But it hadn’t looked at the disabled children’s social work team.

Thanks to remembering the advice of an editor I’ve worked with for years – Patrick Butler, social policy editor of the Guardian, who once told me that council scrutiny committee meeting minutes can be very revealing – I had a look to see what the local authority’s councillors had been hearing about its children’s services department. Unsurprisingly, they’d been told about the progress that had been made as detailed in the latest Ofsted letter. So, I surmised, they would be feeling quite reassured that things were on the up. There was nothing to tell them the information that was crystal clear from the judgement – that practice was still poor in the disabled children’s team, which dealt with some of the most vulnerable children in the area.

This, I felt, meant that it was even more important that the council was identified – to councillors, but also to the parents of disabled children in that area, and to professionals such as teachers, GPs and safeguarding leads. Also… the voters! They needed to know. Otherwise, how could they hold their council to account?

I wrote all this down in my email to the judge. I’ll do a separate blog tomorrow on the arguments made in the hearing – I have Hayden’s permission to report that level of detail – but for now, all I need to say is that we all convened at 2pm on Monday just gone, and Brian and I made the best case we could. We asked to be able to name the council in the public interest. We did not ask to be able to name the social workers. (They may have done a very poor job indeed, but there was no question of anyone having been either dishonest or fabricating evidence or having done anything else of that nature. That sort of thing is, I think, probably the only situation in which I would now seek to have a social worker named.)

Hayden said he would write his judgment and have it ready for end of play the day after (ie yesterday) and we all had it through at around 6pm. I think it’s important to state that at a time when the family justice system is working above and beyond to make decisions for vulnerable children – who must be the urgent priority – it is a testament to the judge’s commitment to both get this decision right and get it out there as quickly as possible that he a) convened a hearing very fast in what I’m sure is a full list and b) turned a complex judgment dealing with finely balanced competing rights around so very quickly.

It’s very interesting to me that Hayden makes it clear that there was no intention to exclude the media from the initial hearing where submissions were made that the name of the council should not be made public. The local authority barrister had, in an oversight – I imagine, probably caused by sheer pressure of work at this incredibly busy time – not put the press on notice. Once the judge had realised that, I actually think he should not have gone ahead with the hearing. But…. the family justice system is horribly, horribly stretched. All the advocates were there. Listing time is hard to find, I imagine. I am not inclined to cut judges much slack, but at this very particular time, when everyone is grappling with remote hearing arrangements, I imagine it is hard to keep your eyes on every ball and make the decision that everyone agrees with all the time. So, maybe the learning should be this for the future – advocates, the media has a right to know if you want to restrict the name of a local authority that is being criticised, and judges, please please don’t hold hearings on such applications if you realise we don’t.

Part of the reason I say this is principle. But part of it is distinctly practical. The media not being put on notice from the getgo has resulted in a bit of a mess.

Yesterday, the Daily Mail put out a piece based on partial information from the only judgment that was still online, ie, the original judgment that restricted the name of the council from being being published. Of course the fact that a judge had banned us from publishing was high on the list of complaints. The Mail piece didn’t explain that the judge had specifically invited the media to make their case if they wanted to report.

Screenshot 2020-05-20 at 15.14.11

And nor did the Mail bother to do so. Sure, it takes time and effort – and frankly a bit of journalistic research – to fight effectively for freedom of expression, but if I, a freelance journalist, unfunded (because uncommissioned on this story) can do a bit of Googling into a local authority’s Ofsted ratings and make an argument for Article 10, then a well funded paper like the Mail can too.

Still, at least that piece didn’t, I think, contain any inaccuracies.

This morning however, the Mail ran a piece by former MP John Hemming about secret family courts. I don’t object to that. I deplore the secrecy of our family justice system too. What was absolutely appalling was the headline, which blared:

Screenshot 2020-05-20 at 15.08.57

Hemming wouldn’t have written the headline. But whoever did was completely and utterly wrong. Whatever the failings were of the disabled children’s social work team, they did not include sending a child to live with a paedophile. Nor, according to any information in either judgment, had either child indeed ever simply ended up living with a paedophile.

I read that headline and just put my head in my hands. Then I commented below the line. Then I emailed the journalist who wrote the Mail’s piece yesterday. “It will be enough what the council actually did to to fail this family, surely! We weaken our case for more scrutiny of family courts if we report what happened inaccurately.” I wrote. “Could I persuade you to ask that this headline is altered so that it doesn’t go further than the actual facts of this case?” I understand he has passed my email on to the managing editor who deals with such requests.

So, I can now reveal – actually, I tweeted an hour or so ago – that the council involved is Haringey. Here’s the judgment explaining our arguments and where Hayden decides that the council can be named. More to come on why it mattered that we could say so – Haringey has a long and uneviable history in terms of child protection. This blog is about the process that the media had to undergo to be able to reveal it – and to show how a series of events came about, which has led to vociferous protests about secret family courts, when in fact, a judge had made it clear that the media could challenge the restrictions he had imposed. In fact, certain members of the media actually had contested his first determination, and were in the process of succeeding in the attempt when the Mail ran its article without taking the trouble to make the same effort.

Justice delayed by, ooh, all of a week was not – in this particular case – justice denied

Ends

 

Consultation response to the President of the Family Division’s Review into transparency in the family justice system

This is the document I emailed earlier today to the office of the President of the Family Division, in response to his call for responses to his Review into Transparency.

A quick heads up – I am asking for the urgent repeal of Section 12 of the Administration of Justice Act (1960), which prevents virtually all reporting of what goes on in family hearings,  stifling freedom of speech and preventing scrutiny of a system that many no longer trust.
________________________________________________________________________

I am a freelance journalist with a particular interest in reporting on the family courts, which I have been attempting to do, with varying levels of success, since 2014. My reporting on family courts was shortlisted for The Orwell Prize for Journalism in 2016, and in the same year I won the Bar Council’s Legal Reporting Award for a Guardian investigation focusing on the effects of legal aid cuts to family law cases. I write a quarterly column for Family Law Journal, and over the last five and a half years, have made a number of applications to report details of private hearings, both orally during or at the end of hearings, and more formally by way of written application during or after the conclusion of proceedings.

Three of these were substantial written applications; in two, the investment of time, effort, expertise and money was immense and onerous to the point that the commission was i) in one case lost ii) in one case nearly lost.

One of the applications required considerable advice and drafting support from The Guardian newspaper’s in-house legal team. Two have required counsel’s advice and representation in court hearings over several months. The first of these was a request to relax restrictions in order to report the details of a public law case; it involved a council’s application to place for adoption a baby who had been removed at birth, which was abandoned at the 11th hour in favour of the child being returned to his mother (the subject of a Guardian Weekend Magazine longread published 20 Feb 2016). The second is an ongoing application to be able to report certain details of a private family law case; this is for a documentary I am making.

In addition, in February 2019, and as a freelance, I successfully appealed a reporting restriction order I believed had been unlawfully made by a deputy high court judge in a Portsmouth court, and which would have prevented the public interest reporting of the outcome of a complex and important story about an adoption placement order on a young girl. (I append my Guardian comment piece published the week after the appeal hearing, and also two Guardian leader columns on the issue of transparency in family justice).

As part of my submissions in my appeal (which benefited from significant pro-bono advice and representation from a family barrister, a human rights QC and solicitor’s firm, without which, I came to realise after initially attempting to manage it solo, the endeavour would have been virtually impossible to contemplate, let alone succeed at) I requested that the President issue guidance as to how family courts should in future approach media applications to relax the statute preventing reporting. He agreed, and the Guidance was published a few months later in October 2019. I have had several opportunities to use it in subsequent applications to the family court, and will comment later on the results.

In late 2018 I was awarded a one-year Ideas and Pioneers grant by The Paul Hamlyn Foundation to explore with users of family courts possible ways to recalibrate the current balance between privacy and openness. My aims and some of the work I did with this funding was described on my http://www.openfamilycourt.wordpress.com blog, which also hosted guest posts from lawyers, parents and social workers. As part of my research, I visited the Republic of Ireland to see how they had pursued greater transparency, after amending their law to allow anonymised reporting of family law cases. As of February this year, I hold follow-on funding from the Paul Hamlyn Foundation to help me set up an Open Family Court Reporting Pilot (discussed last year in principle with the President), the planning phase for which I had just embarked on when the Covid crisis hit.

Since 2016 I have been an active committee member of The Transparency Project and contributed to its very full response to this consultation; this much briefer personal response is intended simply to add some details from my experience as a journalist in the hope that they may be helpful.
_________
1 – The President has asked respondees to consider particularly whether the line is currently drawn correctly between, on the one hand, the need for confidentiality for the parties and children whose personal information may be the subject of proceedings in the Family Court, and, on the other hand, the need for the public to have confidence in the work that these courts undertake on behalf of the State and society.

2 – The assumption in this debate has always been that confidence versus confidentiality is a zero-sum game. I do not think it has to be. It does not fully encompass the options for more openness and scrutiny that are possible if the culture of the family justice system were to change, as I think, given the state it now finds itself in with regard to public confidence, it now must.

With measures in place to properly anonymise family members in any media reporting – such as operate very successfully criminal cases where sexual assault is alleged, or where young people are ordered not to be identified – far more detail could be published of the processes and decisions that take place in family courts, leading to greater understanding, more scrutiny, better quality debate, and, hopefully, more legitimacy for a system that – however painful this might feel to those within it – is currently failing to maintain public respect.

While secure anonymisation procedures do not address the issue of identifying information being placed, often by family members, on social media, the fact is that the publishing of such information is already very extensive, as a cursory search of Facebook, Twitter and other online platforms quickly demonstrates. By contrast, the ability of the media to publish details of a family court case and interviews with all those involved (an issue of balance frequently occurs currently where a local authority is unwilling to offer any input into an article for fear not only of intruding on a child’s privacy, but also of falling foul of contempt laws) does offer a legitimate route to complaint for family members who wish there to be investigation and reporting of their case. Meanwhile, not all reporting would involve investigation of this type of allegation of injustice: my interest is far less in cases where individuals approach the media than it is examining the overall process of family court hearings; it is vital that with secure anonymisation, journalists are able to undertake public interest reporting of both ‘bread and butter’ and complex family law cases. Such investigations are currently almost always far too risky for editors to contemplate commissioning.

3 – I also suggest that to take no action to increase transparency will not mean that public confidence in the child protection and family justice system remains in its existing state, whatever one assesses that to be. The longer no action is taken to improve openness, scrutiny and public acountability, the greater will be the loss of confidence, and even the contempt, felt by so many of those who find themselves embroiled in the family justice system.

This is not a sustainable situation for any system of justice where great powers are exerted that intrude into and change people’s lives forever – even less so for one whose raison d’etre is to protect some of the most vulnerable children in society. It matters enormously that the family justice system is trusted by those who use it. Virtually all my experience of speaking to, interviewing and being contacted by many hundreds of family members, and probably by now, scores of concerned professionals, suggests that today, in too many cases, it is not. Even given the fact that people primarily approach journalists when they are unhappy, angry or dissatisfied, the level of concern, plus the sheer, unrelenting number of the contacts I have received – incomparably higher than on any other issue I have dealth with in nearly two decades as a journalist reporting for the national press on a wide variety of education and social affairs issues – would indicate that trust in the system is broken.

4 – Regarding the President’s Guidance as to reporting in the family courts:
This has been useful.

For instance:

a) Last spring/summer, when it was still in draft form, I quoted sections of the Guidance in correspondence with a court centre when making a request for a transcript of a hearing related to the Portsmouth adoption case mentioned above. Where some family courts have in my experience been wary, slow or even obstructive in assisting my media enquiries, Section 8d “Courts should be astute to assist reporters” can now be helpfully employed to speed up the response. In this case, it worked – not wonders, but it worked.
b) More recently, I quoted the finalised Guidance to back up my requests for documents in advance of attending another freelance journalist’s application to the family court for sight of the paperwork and evidence in the Portsmouth adoption case mentioned above. I was given all parties’ skeleton arguments which helped me follow the oral submissions made over the next two days in court.

The setting out of a defined process with which a judge should approach an application to relax reporting restriction is very helpful in showing how an unrepresented journalist should be involved in the courtroom process, and actively invited by the judge to make their arguments.

Though it should not have needed to be said, it is right given the RRO which I appealed that judges have been plainly told that in approaching the decision as to whether to relax S12, they “should conduct the balancing exercise between privacy and transparency by balancing ECHR, Article 8 and Articles 6 and 10 …”

Finally, and speaking from experience, it is a huge relief that the Guidance says that unless the media has acted unreasonably or behaved poorly, a journalist or publisher is not at risks of a costs order if an application to relax the statutory restraints is not successful.

5. Journalistic experience of attending and reporting on family courts

It is is important to say that I have had some good experiences of attending private family hearings, and also of applying for and being given permission to report on family cases. Although often, I think, slightly anxious, some solicitors and counsel have been helpful and respectful of the role of the press in attending a case, whether they opposed my applications or otherwise. I think particularly of an occasion when a barrister representing a father whose child had died explained how difficult it would be for his bereaved client if I was to attend his final hearing. The barrister asked if I might consider not coming in. I had not been following this particular case for an article so there was no reason to insist, and in human terms it felt right not to go into court. What was important in this interaction was that the barrister did not question the media’s right to be there, but asked if I might be willing to forego that right given the circumstances. That approach was respectful of the role of the media while explaining the potential impact on his client. It left the decision to me, and in my view was the correct understanding of the right balance to strike in seeking to protect his client.

By contrast, I have been repeatedly unimpressed by local authority and Guardian opposition to my attendance at and/or reporting of a number of family court cases. I have been more unimpressed still by the widespread ignorance I have encountered of the law relating to the media’s rights of attendance, the grounds on which it may be objected to, and the way in which, once I have made an application to report, some experienced family lawyers and even in one case, a senior judge, have attempted to block reporting without recourse to any consideration of Article 10 rights versus Article 8 rights.

An example of this was set out by HHJ Wildblood in his judgment on the media’s application to report on a 2017 case: in the following excerpt he comments on a hearing on 20 October 2017 convened solely and specifically to consider the prospect of publication of certain details of a case.

In court, I observed, just as the judge describes, no reference by counsel to any of the competing human rights, or the need for them to be balanced, but instead simply a self-justifiying rehearsal of the social worker’s perspective on the care proceedings that had concluded.

6. The hearing on 20th October 2017 was disappointing. Although the Local Authority, guardian and mother all attended with legal representation there was no mention in any of the skeleton arguments or position statements of the legal considerations that arose in relation to the grandmother’s application. Specifically, there was no mention at all of Articles 6, 8 or 10 of the European Convention on Human Rights or any of the relevant case law (LT bold)The Local Authority had produced a statement from the social worker seeking to justify its actions during the proceedings and the written submissions were to the same effect. It was necessary for me to repeat many times that I was not conducting a hearing to decide upon the validity of the grandmother’s complaints (how could I do that in two hours without hearing witnesses?). I had to stress repeatedly that I was deciding whether the grandmother should have the right to disclose her statement (LT bold) and a contextual statement within the public domain.

I refer to this in particular because:

a) it is a reported example– a judicial description – of what I have experienced several times in attempting to attend and report on private hearings: not only a kneejerk, often legally unsustainable, and in one case, unpleasantly aggressive, opposition to a journalist’s simple attendance (an objection not made on any of the recognised grounds was most recently made on 6 May 2020 when a Guardian was informed I wished to attend a remote ICO application) but also –

b) because the longstanding private operation of family court hearings appears to have been so deeply ingrained into many lawyers and social workers working in the family justice system, my experience is that some cannot envisage, have not considered, and worst of all, do not especially value the reasons why scrutiny of a justice system is, in principle, a healthy and necessary aspect of democracy.

I believe that both factors a) and b) demonstrate a genuine, deep-seated cultural problem – an opposition to transparency, a complacent attitude to practice, and an unwillingness to see any benefits that might result from scrutiny – that has simply not been touched by the rule change allowing journalists into court that happened now eleven years ago. Nor indeed has the fact that it has always been possible to ask a judge to relax or remove the restraints imposed by S12 AJA by successfully making the argument that Article 10 and 6 (and indeed sometimes Article 8) override the right to confidentiality, been fully grasped by many professionals in the family justice system. Although this is incredibly frustrating, I say this not to express that frustration, but to make the argument that attempts to report on family law cases have been difficult not simply because of the complexities relating to the existing statute, but because some of those working daily in the family justice system have not demonstrated that they value the principle of open justice enough to learn in what circustances even our current law on private hearings does allow reporting, under certain conditions, to take place.

6 – This takes me on to Section 12 of the Administration of Justice Act (1960).
This law is, in practical terms, utterly chilling to freedom of expression and scrutiny of state powers.

First of all, it is generally agreed that Sec 12 is poorly drafted, such that the best legal minds have, over decades, lengthily and expensively wrangled with the meaning of its phrasing to decide what and is not permitted in terms of publication. The most senior judges in the land have had repeatedly to navigate – and sometimes create – tortuous routes through that phrasing.

Any law that requires such constant, costly and onerous litigation cannot be fit for purpose, particularly when what is in question is the proscription of human rights – primarily freedom of expression in relation to the exercise of justice, but also in some cases, it is argued, Article 6, the right to a fair trial, and an absolute right – which are so fundamental to the healthy operation of democracy.

The powers of which S12 AJA prevents public interest reporting are extremely draconian – in public law, for instance, the evidence and process leading to the removal of children from their parents, the forced adoption of children and the extinguishing of their legal relationship with their entire birth family including siblings, and the immediate separation of a newborn baby from its mother. In private law, these powers can, for instance, result in the total loss of contact between a child and a parent, or the enforced movement of a child from one parent to the other when the resident parent truly believes – whether or not they have been able to prove it to a court’s satisfaction – that abuse or harm will result.

These state powers, the process by which they are exercised and the judicial decisions which are made as a result of the legislation, need to be regularly, thoroughly and independently scrutinised, described and debated by citizens. At present, because of the immense costs in time, money and expertise of any contested application to publish the details of private family proceedings, this barely happens at all.
While ensuring sufficient measures are in place to protect children’s anonymity (while bearing in mind that courts have accepted that, depending on the case, harm does not necessarily result from identification) I believe that S12 AJA 1960 must urgently be repealed.

7 – The Republic of Ireland may offer some useful experience to inform moves to open up the family court system to independent scrutiny. I reproduce in full here my blogpost of the visit I made last year, mentioned earlier, because – although I would not favour the establishment of a similar Child Care Law Reporting Project as our sole means of scrutiny – the Irish experience offers interesting and perhaps surprising reassurance as to the overall long-term reaction to, and effect of, removing the automatic ban on the anonymised publication of details of private family cases.

Scrutiny of family courts – what can we learn from Ireland?

29 March 2019

I’m recently back from Ireland, where I went on a mission to explore how the country’s Child Care Law Reporting Project (CCLRP) works to provide scrutiny of their family courts and family law system. This blog should certainly have been written sooner, but I’ve been felled by a vicious bug, and am only now really able to collect my thoughts and attempt to analyse what I learned.

I made this trip because I am trying to figure out what might work in terms of achieving greater scrutiny of the family law system in the UK, so there is more transparency when the state intrudes into families’ lives, and better accountability for its methods, ethics and outcomes.

I’m tentatively calling this an Open Family Court pilot, and am hoping to advocate for it in meetings I have coming up with some people who might be able to help to make it happen.

Dublin visit

I met with solicitors, barristers, civil servants, the head of the biggest provider of Guardian at litem services, a human rights charity focusing on children with experience of care, and with judges. I also interviewed a journalist by telephone, spent a morning in a family court with one of the CCLRP’s rapporteurs (she is both a qualified barrister and a journalist), and interviewed the Project’s director, Dr Carol Coulter (who last autumn presented to the Association of Lawyers for Children conference in Bristol – here is her speech).

I tried over several weeks to arrange a meeting with Irish social workers, but this didn’t work out. I also didn’t have the chance to speak to any families who had been through the care system. Both are a real shame and I acknowledge that it is a significant gap.
The reactions from everyone I met to the Child Care Law Reporting Project were broadly very positive, with some criticisms. I will do my best to set out both in this post.
The first thing to note is that applications to remove children into care in Ireland are made not by local authorities, but by a central government body, the Child and Family Agency (also known as Tusla). This means that accountability issues on care applications are predominantly for central government to face. And helpfully, if you don’t need to name a local authority in order to hold the state to account, then worries around family identification relating to geography substantially fall away.

Of course, local authority areas in England hardly comprise tiny populations, but the fact that the Child Care Law Reporting Project does not need to – and indeed has chosen not to – name where care cases are heard, has probably helped considerably in countering arguments that detailed reporting of hearings risks identifying families.

Secondly, there is considerable protection given to families in the Irish Constitution.
There is no constitution in England and Wales. And I was told several times that the protections provided in the Irish constitution results in the courts being exceptionally wary when considering the removal of children from their parents. Interim care orders are made for 28 days, and often renewed repeatedly rather than applications being made for full care orders. Longer time-limited – one and two year – care orders  are common. Adoption without parental consent almost never happens, though the conditions in which it can take place have recently been very slightly relaxed. And care numbers in Ireland are currently going down, though numbers of voluntary agreements for children to live with their wider family members are going up.

Thirdly, the fact that families are highly unlikely ever to have their child adopted, does, I sense, takes some of the fury and heat out of the child protection debate. Here there is undoubtedly very great fear within families that care proceedings, particularly when they concern young children, might lead to parents, siblings and relatives losing their relationship with a child for ever. Not having the spectre of adoption hanging over them also, I venture, may well affect the relationship parents in Ireland have with the state and therefore the social workers they come into contact with: because the government is vanishingly unlikely to intrude quite this drastically into family life, there is perhaps not the visceral terror related to anticipated permanent loss, and therefore maybe a better chance of constructive working.

Fourthly, journalists in Ireland do not only have the right, as does the media here, to attend family court cases held in private: quite differently from in the UK, they are permitted to report the detail of those cases, and this does happen, though only typically for controversial cases. The legislation provides for the ability to impose restrictions on publication of information from family cases, and there are really draconian penalties – 50,000 Euro fines and a possible three years in clink – for any reporting that identifies a child or family.

But, critically, the starting point is that journalists may publish details of family cases held in private.

This is the direct opposite of the situation in the UK, where the starting point is that they may not. This is something I would very much like to reverse.
Nevertheless, I was told by Shane Phelan, legal affairs editor of the Irish Independent, the penalties have a rather chilling effect on editors’ willingness to cover family cases, even if they could stomach the resource implications of sending reporters to multi-day trials.

Finally, it’s important to understand that the Child Care Law Reporting Project does not, apart from specifying when cases are held in Dublin, identify the area of the country in which a case is heard, nor name the judge, social workers, experts or Guardians. Families of course are not identified either.

 

On the Monday morning that I arrived at the offices of the CCLRP, it had just released a report to the media. This report was unusual in that it did not detail any individual family cases, but described instead the pressures of lists in the district courts around the country that sometimes ran to 90 and 100 cases. District judges in the smaller towns, the Project’s rapporteurs had found, were dealing with issues like child contact, maintenance and domestic violence as well as public law care cases, all in the course of a day. While in bigger cities, care cases are dealt with on dedicated days, in the smaller and commuter towns, these cases were being squashed into more general lists, and the media was running stories about it on radio, tv and in print.

Coulter had previously told me that every time the Project releases a report, there is considerable media interest and even though there was no “sensational” family case described in this report, the media was certainly talking about the issues it raised: Coulter had been up early doing radio interviews, and dashed out of our meeting to give another one mid-way through the morning.

Only shortly before, a different report detailing six-months worth of lengthy, highly contested and problematic family cases had shown that homelessness was an increasingly frequent reason for courts being reluctant to allow children to return to their families: this issue too had been comprehensively picked up by the media.
“At the outset, civil servants and the Child and Family Agency (CFA) were not enthusiastic about us,” Dr Coulter told me, between radio interviews. “They had this fear that all journalists do is look for problems, which I understand. But we designed our attendance at court to be as randomised as possible, based on court statistics on volumes. I think, with some caveats, we get a more or less representative sample, and I think they were at least somewhat reassured.”

Coulter  designed a reporting protocol based on anonymisation best practice as carried out by responsible media outlets: the protocol is the mechanism whereby the Project’s reporters do not breach legislation on identification. “It wasn’t reinventing the wheel: it was based on how the media ensures it doesn’t name, for instance, victims of sexual offences,” said Coulter. “We train our new reporters in it.”

Coulter explained that many of the cases the CCLRP has written about are not contested, or are short and relatively simple, with only a very small number being highly contested. “If you were doing this journalistically,” she pointed out, “you’d go for highly contested, and that’s certainly important. But it’s not very useful in looking at the issues faced by vulnerable children across Ireland.”

This measured approach was specifically noted, and regarded as important by several of the people I later spoke to in the sector.

“The beauty of Carol’s work is that she’s not only looking at the worst cases,” said Freda McKittrick, a social worker by background who has worked in both England and Ireland, and is now assistant director of the Guardian Ad Litem service at the charity Barnardo’s Ireland.

She  believes that by describing the detail of public law care cases, the Project has given policy makers an insight into what is happening in child protection across the board. “That might be on the ethnicity of parents, or what proportion of care orders are granted compared to those asked for. This is not data that’s collected by the state.”
McKittrick also believes that reporting has raised society’s awareness of and sensitivity to child abuse. “Our perception is that the general public have had no idea of the level of misery that these children experience, and we can’t talk about it,” she said.
She expressed concern about whether children’s views on whether their cases should be reported, even anonymously, are ever solicited, let alone taken into account.
“The Guardian Ad Litem relationship has limits to its confidentiality already; we have to tell children that their information will appear to parents, also to other lawyers – should we also be saying ‘and it might also appear in the papers’?”
But she also observed that, as a Guardian who had built a relationship with a child, “you would know a child who was very sensitive to information and other children who would like people to know what happened in their case”.

Overall, McKittrick’s view was that “you need to look at the value of the reporting. And balance it against the rights of the individual child and also their anonymity and their consent.
“Having said that,” she concluded, when the Project began reporting, “the world didn’t fall in.”

I met John McDaid, the chief executive of Ireland’s Legal Aid Board, and a lawyer who formerly worked on child care cases, on my first afternoon in Dublin.
Is the Child Care Law Reporting Project effective in holding the state to account, I asked him.

“I think we’ve made giant strides but there is a way to go,” he said. “I think the fact Carol’s team even go into the district courts may make people behave a little more carefully than might otherwise have been the case. “Historically there was no scrutiny and everything was private, so anything could go on.”

I laugh to myself a little hollowly. That’s pretty much where we are in the UK, I thought.
But what about more overt media interest in family cases… what would he think of journalists reporting more enthusiastically from family courts?
“I’d have no problem with it.” McDaid said firmly.“In terms of greater levels of press scrutiny it’s good. The risk is the level of experience of the journalist, and the level of understanding of what is taking place in court.”

Catherine Ghent and Seona Ni Mhurchu are solicitors who represent children and families. Ghent introduced me to the delights of breakfast at the food emporium and cafe extraordinaire Dollard and Co, on the south bank of the river Liffey, before dashing to court on the Tuesday morning. Ni Mhurchu was kind enough to meet me in her office the following day before her court commitments.

Of journalists reporting on family cases, Ghent said: “I see public discourse as a way to hold judges, lawyers and the state to account.” However she also felt strongly that it was important that entire cases were observed, rather than journalists coming in for one day out of three or four.

“The problem is you need to be there for a long time, not only so that you get to see the whole progression of the case, and get a feel for the dynamics between professionals, parents, lawyers and the judge, but also so the judge forgets you’re there. It’s then you’d see how conduct of the case affects the evidence put before the court, affects how professionals give their evidence and how – and if – it’s properly heard.

“In cases where solicitors and social workers are bullied into not putting evidence they want to before the court, or are stopped from cross-examining for spurious reasons, it’s really dangerous for the system because it’s having a knock-on effect in terms of what case will be put forward on behalf of the child,” she continued. “Courts then make decisions with incomplete information. These are cases where children are at risk from dangerous decisions being made. And then you have other judges riding roughshod over parents’ rights, and if that had been reported at all…”

She also said that there are some “excellent judges trying their best to deal with difficult cases, who are very skilled and do a great job”: her view is that problematic judges are thankfully a rare minority “but one is too many given the ramifications for children and parents”.

I’m surprised she’s willing to be so publicly critical, but Ghent says she has made her opinions openly known.“The whole system becomes complicit,” she says. “It’s a human reaction to want to avoid conflict. “You need a complaints mechanism beyond judicial review. There needs to be an accountability mechanism. Because you have judges who are conducting family hearings in camera, and in courts that are open, you don’t get away with that.”

Although she said there is some excellent reporting and it plays an important role in terms of informing the public, Ghent is not uncritical of the Child Care Law Reporting Project: “What’s missing from the reporting is an analysis of the atmosphere (in court),” she said. “Where the judge’s conduct is relevant to how the case has proceeded and if that conduct is problematic, then that should be reported to give the full picture.” She felt this was a difficult line to walk for the Project in terms of its remit and observed that it highlights a need for a wider mechanism for accountability within the courts system.

Across the river, in Seona Ni Mhurchu’s office, the solicitor recalled the reaction among lawyers and social workers when the CCLRP was first proposed: “Oh, the scaremongering!” she laughs.

I ask whether she believes the potential risks of children being identified as a result of family cases being reported have ever materialised.

Ni Mhurchu says there have been only a very few instances: identification has occurred not because of CCLRP reporting, she said, but because individual news journalists had failed to understand the law which states that no child who is in care may be publicly identified as such. She cites one case, in which a journalist reporting on the inquest of a child (who had not been not in care), wrote that they had a sibling who was fostered.
She also emphasised that there are situations in which reporting public law family cases “really matters.”

“I think the Child Care Law Reporting Project has brought to the fore the extent of child sexual abuse in our society – around 70% of my cases have an element of that in it,” she explained. In one such case a few years ago, reporting by the wider media was, she says, “really helpful.”

Is reporting worth the danger of identification, I asked?

“I think it’s so important that there is scrutiny. I think it trumps any downside.”
“Unfortunately you have to take that risk. Before (the CCLRP) here was no oversight at all. Having that journalistic oversight – it changes things. And there is an overwhelming benefit to people in understanding what is happening in these cases and how difficult social workers’ jobs are.”

Pol O Mhurchu, her father, a renowned family law solicitor in Dublin, popped his head round the door. I grabbed the chance to ask what he thinks about the CCLRP, and scrutiny of family law systems. “It’s very good idea, very important,” he said. “Because it’s starts right here. I need someone to check on me. Because it’s much healthier. I know that I need to be open to that.”

And yes, he said, he would accept the risk of a family being identified for the benefits gained through better scrutiny.

He also says that everyone involved “must make every effort to avoid it.”

Terry Dignan, chief executive of the human rights charity EPIC which supports children with experience of care, had tried very hard to arrange for me to meet some of the young people he works with, but this had unfortunately proved tricky to achieve.
Instead, I met with both him and EPIC’s head of policy, Karla Charles.

Dignan offered a surprising perspective on the right to privacy as it relates to family cases. “Talking about the ‘in camera’ principle,’ he said, “whose interest is best served? What about young people who go on social media and identify themselves as being in the care system?” Under Irish law, he pointed out, this isn’t permitted.

Of this blanket rule not to identify children who have been subject to care proceedings, he said: “You wonder why it’s being used as such a blunt instrument. Obviously, we shouldn’t be publishing the details of why they’re in care. But just the fact that they are in care – why are we increasing the stigma? Rather than reducing the stigma by normalising the fact that a child is in care.”

When I asked about the possibility of children being identified as a result of reporting, Dignan’s response was: “I have no doubt that some children feel that they don’t want it known. But others do tell their peers that they are in care.” Karla Charles then posed a fascinating question, to which of course we don’t know the answer: “It would be interesting to go to care leavers and ask, would it have bothered you to have your case anonymised and published?”

My final meeting – apart from a fascinating lunch with a group of senior family judges, which I can’t report on – was with a civil servant at the Irish government’s Department of Child and Youth Affairs (DCYA). He oversaw the recent three year funding agreement with the CCLRP.

It was this official’s perception that the Project’s reporting is “scrupulously neutral.”
“It’s more like a research project,” he said. “It’s not positioned as existing in order to call out the failings of the judiciary or others. Its reports are descriptive rather than commentary.”

In terms of people’s original fears that the Project’s work risked identifying children and families, he points out that while this is not a widespread problem, court rules occasionally already fail to prevent families and professionals being identified on social media, as people release details of their own cases across various online platforms. “Carol has established an effective protocol to ensure that the reports do not in any way identify parties and that this has been effective now for a number of years,” he said.
The DCYA has made a significant financial commitment to support the Project’s work: the benefit, the official said, is that its reports bring emerging trends in public law care cases to the attention of national media and the attention of government. “As an example, reports have highlighted the length of time children are spending in care under renewed interim care orders,” he said. “This has implications for their wellbeing and also has resource implications, so clearly that’s an issue that may require a policy response.”

And what if the CCLRP didn’t exist?

“We would miss it,” he said. “It’s a good spot check, and while it has to be seen as indicative, and as flagging issues rather than analysing them in depth – we couldn’t make policy on the basis of its findings alone – it does tell us where we need to look and where we might need to do more.”

My conclusions from my visit, are as follows:

Despite widespread initial misgivings throughout Ireland’s family law and child protection sector, the CCLRP appears to have become widely accepted as a valuable tool in holding the Irish state to account in public law care cases, and is used and appreciated by policy makers for the information it provides that is not otherwise available.

The Project’s neutrality is valued, as is the fact that it does not cherrypick the “juicy” cases, or attend only those which are highly contested.

There remains a degree of concern that children might be identified via reporting of family courts, though this has very rarely happened, and never so far as a result of reporting by the CCLRP. This may be because its reporters are specifically trained in its anonymisation protocols and also, there is no pressure of time in terms of publication, as there will always be in news reporting (though less so for longer pieces/documentaries/investigations).

There was a strong sense from everyone I spoke to that the risk of identification needs to be tolerated in order to ensure the state can be held to account for its intrusions into family life, and very importantly, in order that those who are involved in the system, and those whose policies shape it, can improve on what they do to protect vulnerable children.

Reflections

As a journalist, my job is make things that are hidden, known: to help people see what currently they don’t – or can’t.

The media doesn’t itself reform, though it may at times campaign.

So my ambition for this Open Family Court pilot – in whatever form it takes – is to allow people to understand better what they currently have little chance of grasping, because family law processes are private, and hearings are held in such restrictive conditions that despite UK journalists’ entitlement to be present in court, we are left with what I’d argue amounts to a judicial process exercised in secret.

The only consideration, in my view, which needs to be taken seriously in relation to reporting, is the risk that children might be identified. The CCLRP has two significant mechanisms to help avoid this: the distance in time between a case being heard and the reporting of it, and the fact that there is no need in Ireland to identify a local authority as the agent of the state.

My feeling is that arguments for some degree of delay in reporting may have some value in helping prevent identification, even if in journalistic terms, a time-lag is very far from ideal – if you do not report something at the time it happens or very shortly afterwards, you might easily find you can never report it at all.

But in the UK, where local authorities are the arm of the state which both propose and heavily influence drastic and life-changing intrusions into families’ lives, failing to identify who is doing what would make the exercise of reporting pretty well pointless.
Not only would it mean we could not identify where poor practice and human rights breaches were taking place, so that the prompt of public knowledge can add salutory impetus to drive change: it would also mean that councils’ good practice could never be identified either.

Next week, I’m meeting with three other journalists who between them have considerable experience of reporting on family courts, to try to thrash out what we feel might be an acceptable and useful way forward for an Open Family Court pilot.  I’ll follow that up with a blog about what we’ve discussed.

If anyone has any feedback on the findings of my Dublin trip, or constructive suggestions on how an Open Family Court pilot might shape up, I’d very much welcome your comments!

Oh, and yes, Dublin did have excellent cakes.
—————————-
Appendix

1 – Why I fought for the right to open up family courts to greater scrutiny, The Guardian, Tuesday 19 February 2019
Louise Tickle

On Friday, I was at the Royal Courts of Justice for a hearing in front of the most senior family judge in the land. I was challenging a reporting restriction order (RRO) that I believed had been made unlawfully last autumn in a Portsmouth family court. The restriction order banned the media from reporting on Southampton city council’s attempt to remove a young child from her mother, for ever.

The child had been placed in foster care in 2015. In 2017, the council applied for her to be adopted. The family law court judge ruled in the council’s favour. But the mother appealed against the decision and at the beginning of 2018 the court of appeal declared that Southampton children’s services had offered “only the slimmest of evidence” to back up its assertion that the little girl should be adopted. The judge, the appeal court continued, had “fallen into error” in analysing whether adoption would be best for the child, and his ability to do so was “compromised” by weak evidence from the local authority. It ruled that if the council still wanted the child adopted it would have to make its case again. A date was set for October. Yet, unbeknown to any journalist, during the summer the council reunited mother and daughter. A court hearing did go ahead in October 2018, however, at which the council applied for a RRO banning the publication of names of professionals who had been involved in the case, or the ages and ethnicity of the family.

Family court proceedings often cannot be fully reported and there are some good reasons for privacy to safeguard children and their families. But court of appeal judgments are in the public domain unless, as happened in October, a judge slaps a RRO on it.

I emerged from court on that day feeling furious – and frightened. It is shocking enough that family courts are not subject to anything approaching the level of openness in the rest of our justice system. But when one family judge acts, in secret, to remove a child from her mother, and a more senior family judge then says that the media may not report how weak local authority evidence, compounded by questionable judicial decision-making, has almost destroyed a family, then it’s dangerous territory.

Since then, I’ve discovered that fighting for the right to freedom of speech is scary, time-consuming and far too expensive for most people to contemplate. There is no automatic legal aid for a parent to appeal against an adoption decision. In this case, the mother scrabbled together the £60,000 to mount a legal challenge. A number of lawyers warned she had almost no chance of success. But, she told me, she had wanted her child to know that even if she failed, she had tried her hardest to keep them together.

But the RRO meant that the public would never know that a terrible judicial decision could have resulted in a child losing her relationship with her mother. And this is why, risky though it is as a freelance reporter to go to court – I stood to pay everyone’s costs if I lost – I was determined to argue the case.

I crowdfunded to cover the costs; £528 simply to apply for permission to appeal, then a further £1,199 for the hearing itself. The mother was represented for nothing by solicitors Boardman Hawkins & Osborne and barrister Lawrence Messling. My legal bill – representation was provided pro bono by human rights silk Paul Bowen QC, family barrister Sarah Phillimore and solicitors Simons Muirhead & Burton – plus the risk of paying the costs of the other parties had I lost, would have been in the many tens of thousands of pounds.

This is the price of fighting for the freedom of speech required to keep the state accountable: the cost to this mother to protect her daughter’s right to be brought up in her birth family has been incalculably more. Their story deserves to be told – and, thanks to help from so many people who believe that family courts must urgently become more transparent in their dealings, it now can be. And following this important victory the country’s top family judge has vowed to make rules covering reporting restrictions in cases involving children much clearer.

2. The Guardian view on family law: Transparency is in the public interest
15 February 2019

3. The Guardian view on the family courts: Openness is the cure, 31 August 2017
Editorial

 

A journalist in family court asks to report on a journalist in family court

“Journalist tries to report on journalist trying to investigate” is perhaps not the catchiest phrase you’ll ever read. Frankly, I’ll admit that things are getting a bit meta when you have one freelance reporter taking the early train to London to ask a family court judge for permission to report on the efforts of another journalist to get sight of restricted papers in a flawed adoption case. But… bear with me.

Tomorrow, freelance journalist Melanie Newman will embark on a two-day contested hearing in front of Mrs Justice Roberts; she wants to be able to read the papers that were submitted by Southampton city council as evidence for a little girl to be adopted.  A judge gave permission for the adoption to go ahead, but the girl’s mother, bravely and thanks to huge financial sacrifice by all her family, appealed. Very unusually, she was successful. The Court of Appeal described as “only the slimmest of evidence” the paperwork and oral testimony given to the court by the local authority in support of it’s case to remove the child from her family, forever – and, after a huge amount of trauma for everyone involved, the girl returned to live with her mother.

Being a dogged investigative journalist, Melanie wants to know what is in the papers, and is trying very hard to find out. I estimate she formally applied for sight of the court bundle – to see what this “slimmest of evidence comprises – ten months ago.  The mother is in agreement that she should be able to see the documentation. The local authority and child’s Guardian are opposed. There have been several court hearings to date: the opposing parties have instructed counsel including Deirdre Fottrell, one of the country’s most eminent family law QCs to argue their case contesting Melanie’s application. Melanie herself is now, thankfully and incredibly generously, represented pro bono by barristers Anya Proops QC and  Kate Temple-Mabe, and Mark Stephens of Howard Kennedy solicitors.

From my own experience of successfully appealing an unlawful reporting restriction order made to gag the media from reporting the outcome of that case, I know all too well the immense amounts of time and energy that Melanie – a freelance reporter, working on her own  – will have put in to try to find out what on earth the local authority felt was adequate evidence to support an application to have a child adopted. Evidence that the Court of Appeal, remember, did not believe was remotely sufficient. Journalists are frequently criticised for not reporting family courts accurately: it’s important to underline the point that Melanie’s efforts to interrogate source documents are in the very best traditions of rigorous journalism. And what stands in her way is Section 12 of the Administration of Justice Act 1960– a 60 year old law that restricts anyone from knowing what goes on in closed family court proceedings, even when the state, in exerting its most draconian powers – to remove a child from its family, and extinguish the legal relationship between them – clearly made a terrible mistake.

Using the President of the Family Division’s recently published Guidance as to reporting in the family courts, I emailed the judge on 20 January this year to let her know – as a courtesy, there is no requirement to do this – that I would be attending the hearing tomorrow and Tuesday, and to explain that I would, at that hearing, be making an application to report the parties’ arguments both for and against Melanie having sight of the documentation. I also applied, via the email, to be able to see documentation in advance of the hearing. Eventually, though it was opposed (though not by Melanie), I gather from a short excerpt from an order that I was sent by the judge’s clerk that this was agreed, subject to anonymisation of the documentation.

So, to conclude: I’m on not-quite-the-most-crack-of-dawn train to London tomorrow to get the Royal Courts of Justice for 10am, then staying at my sister-in-law’s overnight, then back in court on Tuesday. I’ll make the best case I can to Mrs Justice Roberts that reporting Melanie’s efforts to investigate what went wrong in this adoption case is in the public interest,  that in doing so I will not identify the family members (remember, there has been significant national coverage that successfully protected their anonymity), and that I should be able to let you know what arguments the state makes – at very significant public expense – to ensure a journalist cannot even read (not, at this stage, publish) the evidence the Court of Appeal  said was insufficient for a judge to have ordered that a little girl should lose her relationship with her birth mother, and be placed for adoption.

Please support this reporting!

I am paying for my own travel to London tomorrow (rail fare  £171.81) and am giving up two days of time to report on this case. This is not the kind of story that would be commissioned by the national media, but I feel it is important to show the efforts being made to try to hold the state to account as it exercises its powers in the family justice system. If you feel able to support my Patreon, which will help pay for me to make these applications to report on family court cases, I would be hugely grateful.

 

 

 

 

 

 

Frankly, it’s all getting a bit meta. I’ll try to explain.

 

 

Thoughts from the back row of the family court

A journalist’s response to the President’s draft practice guidance on how applications to relax reporting restrictions should be dealt with

 

Screenshot 2019-06-28 at 13.42.07Thanks to Flickr

The consultation period for the President of the Family Division’s draft practice guidance on how courts should approach applications to relax reporting restrictions in family court cases will end on Sunday 30 June. So… if you’re interested in submitting your views, get yer skates on – this is a significant opportunity for journalists and others who are interested in how transparency intersects with privacy in the world of family law to have their voices heard.

I’ve published my response below, and am looking forward to seeing the thoughts and ideas put forward by other individuals and organisations when and if these are published.

Louise

 

Response to the President’s Draft Practice Guidance as to
Reporting in the Family Courts

Submitted by Louise Tickle, 28 June 2019

__________________________________________________________

Introduction

1. I am a freelance journalist specialising in reporting on family law. I am also a committee member of the charity The Transparency Project which has submitted its own response to this consultation. This response is my personal submission which I have prepared with the assistance of the two barristers who represented me pro bono in my recent appeal against an unlawful reporting restriction order – Paul Bowen QC and Sarah Phillimore – out of which the current consultation document emerged: Re R (A Child) (Reporting Restrictions) [2019] EWCA 482 Civ. .

2. Given my experience of attempting to report on family courts, which has tended not to be simple, swift or affordable, the measures outlined in this draft guidance are very welcome. They will go some way to ease the process of applying to relax or lift reporting restrictions, as well as, I hope, offering helpful clarity to reporters, lawyers, judges and parties as to the process required when the media, legal bloggers, or indeed parties themselves, seek to exercise freedom of expression in relating what happens in family courts to the wider public. My thoughts on how to further improve the very helpful measures detailed in the draft guidance are as follows:

Timing of journalist’s submission

3. It is typically difficult for an unrepresented reporter to know at what point in a hearing they may stand to make an oral application for reporting restrictions to be lifted. We have no clear “standing” in court, and it can feel as if we are interrupting or even being disrespectful to draw attention to ourselves in order to ask the question. There have been situations when a hearing has been wound up by the judge without me having any obvious opportunity to ask whether I may report aspects of the case, and one is then left in the much more logistically difficult situation of having to contact the judge and parties afterwards.

4. In practical terms, therefore, it would be extremely useful if there was a commonly understood point or points in the hearing where the judge briefly asked whether reporters wished to address the court. It would seem to make most sense to do this at the start of a hearing – a reporter may well know that they wish to report in advance, and this allows parties and lawyers to be thinking about any issues they may ask to be restricted from publication – and also at the end of a hearing – a reporter will have a better idea at this point of exactly what they wish to publish.

Provision of case papers

5. It can be difficult for a reporter to understand what is being discussed in a family court hearing without knowing the background to the case, the names and roles of professionals, and the names and ages of the parties involved, Giving accredited journalists and legal bloggers sight of the paperwork being referred to by counsel at the hearing would allow greater understanding of the issues being dealt with, enable them to follow proceedings, and help to ensure greater accuracy in reporting.

Proposed additions to the draft guidance

6. I would like to make the following two suggestions for additions, which would run after paragraphs 4 and 14 respectively:

6.1 Proposed paragraph 4A: “The automatic reporting restrictions in s 12 AJA and s 97(2) do not apply to local authorities, their social workers, expert witnesses or other professionals unless the disclosure of their identities is intended, or likely, to identify the child (J (A Child), Re [2013] EWHC 2694, [22]). Compelling reasons must be given for anonymising local authorities or professionals (Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230, [20]; J, Re (a minor) [2016] EWHC 2595 (Fam), [24], [28], Hayden J).”

6.2 Proposed paragraph 14A. “In conducting that balance, the same approach is to be taken when considering whether to reduce or lift the automatic restrictions in s 12 AJA and/ or s 97(2) CA 1989 as when considering whether to impose reporting restrictions under the inherent jurisdiction that are not provided for automatically. While the starting point – privacy in the first case, openness in the second – may differ in each case, neither value has automatic priority over the other. What matters is the weight to be attached to the competing values in the particular context.”

Publication of written judgments

7. In my experience, some of the problems in ensuring the publication of judgments appear to stem from the fact that judges and lawyers are put to additional time and expense in ‘anonymising’ a judgment after it has been handed down in order to make it suitable for publication. It is therefore understandable why there continues to be significant non-compliance with the existing practice direction on publication of judgments. I understand that the Courts have experience in other contexts in writing ‘Open’ and ‘Closed’ judgments and that a similar approach to judgment writing might make it easier for family court judgments containing sensitive information to be published. It may be that if judges were to receive training and guidance in applying a similar approach to the writing of judgments, so that any confidential information is identified at the outset and placed in a confidential annex, the process of publication would become less expensive and time-consuming. This would also make it easier for members of the press or legal bloggers to identify the information that is considered to be sensitive upon which they can focus any argument that more information needs to be opened up for publication.

President’s Anonymisation Guidance

8. Finally I would like to use this opportunity to comment on the President’s Anonymisation Guidance, issued in 2018. It pertains directly to the decisions that a judge will be asked to make in assessing what details may be published when an application is made to relax or lift reporting restrictions, and difficulties with aspects of the checklist were raised by my counsel Paul Bowen QC in the court of the appeal hearing on 15 February 2019.

9. It is worth saying that the mainstream media – as opposed to individuals irresponsibly using social media – is very well used to successfully anonymising people involved in legal cases in order to prevent jigsaw identification: this is commonly done in cases of sexual assault and sexual abuse for instance, and will often go further than simply not publishing the name of the person involved. Notwithstanding the recent case where a serious but genuine mistake was made and a journalist was prosecuted, these anonymisation measures are almost always successful in keeping the names of victims or alleged victims out of the public domain. I do not believe that the media would act any differently in cases related to children in family court proceedings, and while some may deplore the facts that certain media choose to highlight from published judgments, there is not, I think, evidence to suggest that ordinarily even the red-tops actively seek to publish information in order to identify vulnerable individuals involved in family law cases.

10. Although I have serious concerns about the overall level of micro-management of what details the Anonymisation Guidance says a judge may include in a judgment, I am most concerned about what it says about the naming of local authorities, which are agents of state, and must, most particularly in cases which are held in private, be capable of much greater scrutiny than this guidance would appear to permit.

11. Under the section relating to local authorities in the Anonymisation Guidance, the wording runs as follows:

After redaction/abridgment of a judgment intended for publication and following consultation with advocates and consideration of the number of potential applicants served by the court, the judge concludes that naming the LA would carry with it no risk (my emphasis) of identifying the children (or any of them); or…

12. However, there can never be a situation in which there is no risk. This wording is therefore worrying to any reporter who wishes to hold the state to account for the drastic intrusions it makes into family life when the law is exercised in the family courts.

13. There is also an important difference between the exercise of judicial discretion and a highly prescriptive checklist issued as official guidance: the above paragraph is indicative of the conservative approach taken throughout the Anonymisation Guidance, which does not acknowledge the value of open justice, and the importance for public confidence of the media’s ability to robustly scrutinise the workings of family courts.

14. I hope that within his Transparency Review, there might be an opportunity for the President to look again at the Anonymisation Guidance and consider whether certain aspects of it might be refined to take account of these concerns.

15. I intend to publish this response on my Open Family Court blog (www.openfamilycourt.wordpress.com), and very much hope for the opportunity to read others’ responses if they are published either by the President’s office or themselves.

Louise Tickle 28 June 2019

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For interest, here also is the consultation response by The Transparency Project, of which I’m a member.