A journalist’s response to the President’s draft practice guidance on how applications to relax reporting restrictions should be dealt with
Thanks 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.
Response to the President’s Draft Practice Guidance as to
Reporting in the Family Courts
Submitted by Louise Tickle, 28 June 2019
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)  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to report on family courts, which has tended not to be simple, swift or affordable, the measures outlined in this draft guidance are very welcome.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 My thoughts on how to further improve the very helpful measures detailed in the draft guidance are as follows: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  EWHC 2694, ). Compelling reasons must be given for anonymising local authorities or professionals (Practice Guidance (Family Courts: Transparency)  1 WLR 230, ; J, Re (a minor)  EWHC 2595 (Fam), , , 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
For interest, here also is the consultation response by The Transparency Project, of which I’m a member.