Written evidence from THE TRANSPARENCY PROJECT

ABOUT THE TRANSPARENCY PROJECT

1. The Transparency Project is a registered educational charity operating in England & Wales, whose charitable objects are:

1. To advance the education of the public in the subject of family law and its administration, including the family justice system in England and Wales and the work of the family courts, in particular but not exclusively through the provision of balanced, accurate and accessible information about the work of family courts and the facilitating of public discussions and debates which encompass a range of viewpoints.

2. To promote the sound administration and development of the law in England and Wales, in particular, family law, by encouraging and contributing to the transparency of processes in the family justice system, contributing to public legal education concerning family law and matters of family justice, enhancing access to justice in matters of family law and by such other means as the trustees may determine.

2. In short, our aim is to make family justice clearer to the public.

3. The Project has three trustees: Lucy Reed (barrister), Dr Julie Doughty (lecturer Cardiff University), and Paul Magrath (ICLR). Together the trustees authored the first family court practitioner textbook relating to transparency (Transparency in the Family Courts: Publicity and Privacy in Practice, Bloomsbury, 2018). In addition, the Project has a core group of volunteers, including family, Court of Protection and media lawyers and academics, and journalists (Jack Harrison, Malvika Jaganmohan, Polly Morgan, Dr Emma Nottingham, Barbara Rich, Louise Tickle, Dr Judith Townend, Alice Twaite). The Project is also supported by a ‘pool’ of occasional writers (mainly practising lawyers) and guest writers from a range of disciplines and viewpoints.

4. The Project’s core work is the publication of blog posts that furthers our charitable objectives, by explaining judgments or reports in the mainstream media, by correcting inaccurate or confused reporting by journalists, and by supporting more accurate and balanced reporting in future. Latterly, some of our blog material has been derived from attendance at actual hearings, which we have been able to report though the right of attendance given to ‘legal bloggers’, a right of access granted at our instigation, initially via a pilot scheme, and since 1 October 2021, through the Family Procedure Rules.

5. In addition, the Project publishes a series of Plain English Guidance Notes on poorly understood or problematic areas or issues, runs public debates and events, and its members are regularly invited to speak about transparency issues and legal blogging, and to train family justice professionals (lawyers, judges, social workers). 

6. We have regularly alerted members of the judiciary to anonymisation errors identified incidentally by members of the team (and by members of the public who have contacted us to ask what to do).

7. Our charitable objectives do not require us to abandon important principles of privacy or to support transparency that is unsafe, because the objectives relate to the sound administration of the law. We see our role as one of responsibility, that we should support ways of achieving greater transparency without compromising the core objectives of a family justice system or any individuals. We do not see transparency and privacy as straightforwardly opposed, though they may often be in tension.

8. We take seriously that part of our charitable objectives which refers to the facilitation of public discussions and debates encompassing a range of viewpoints. We work hard to facilitate a broad spectrum of views to be expressed, and to listen to them.

THIS RESPONSE

9. This response document is structured with reference to the five main questions posted in the consultation document.

10. We focus on the issues as they relate to family justice, as this is our specific remit as a charity. A number of our individual members have broader interest, experience and expertise and have submitted their own responses (Dr Townend, Paul Magrath on behalf of ICLR, Louise Tickle).

11. We invite the Committee to give specific consideration to the particular issues affecting family justice where the ‘normal’ operation of open justice is attenuated for reasons of privacy and vulnerability, but where the court is empowered to make some of the most life changing decisions and to make the most draconian orders of any court. Its work is of profound public importance; although achieving transparency is more challenging in that forum, it is no less important than in any other area of the justice system.

12. With that in mind, the President of the Family Division’s Transparency Review has been ongoing since May 2019 and is expected to report on 28 October 2021. We invite the Committee to consider this response document in conjunction with the written evidence submitted by The Transparency Project[1], and the published recordings and presentations relating to the oral evidence sessions. Two members of The Transparency Project gave oral evidence to the Review (Louise Tickle and Lucy Reed) and their evidence can be viewed in full.[2]

13. Due to the date for publication of the Transparency Review report falling so close to the extended deadline for submission of this response we are unable to factor any recommendations or reforms that may be contained in the Review into this response document. We would welcome the opportunity to offer our supplemental response to the Inquiry in light of whatever is contained in the Review Report, either through supplemental written submissions or oral evidence, as appropriate.

HOW THE MEDIA’S COVERAGE OF COURTS HAS CHANGED, AND WHAT THE IMPLICATIONS ARE FOR OPEN JUSTICE

14. There has been a steady decline in court reporting, particularly at the local level, and in public interest journalism more generally, as documented most recently in the Cairncross Review (February 2019)[3].                            

15. A further obstacle to reporting of local courts has been the closure of many local courts and the transfer of business to more distant court centres, and the replacement of court hearings with online or paper procedures (e.g. the Single Justice Procedure for some uncontested summary offences).

16. We would also challenge the assumption that media coverage is the only channel for advancing public awareness of the justice system. Open justice is primarily dependent on public access, both (a) to court hearings by way of a public gallery in a physical court or access to the necessary audio-visual facilities to permit public scrutiny of remote or online hearings, and (b) to sufficient information about the case to understand what is going on. Media attendance and coverage can extend the scope of public scrutiny, the media acting (in the time honoured phrase) as the “eyes and ears” of the public at large. But public awareness can also be served by providing access to other groups such as those working for NGOs, civil society or public interest groups, or in research.

17. One of the implications of the change in the volume and depth of media coverage of court hearings has been to create space for, and enhance the importance of, the role of others in researching and reporting on the administration of justice, including legal bloggers and commentators.

18. In relation to family justice in particular, there have been a number of shifts over the years in the nature of reporting, which we summarise here :

1. In 2009 journalists were granted a right of access to private Family Court hearings. They have rarely exercised that right, for reasons which we set out more fully in our response to the Transparency Review but which primarily relate to a trio of barriers :
1. journalists find it very hard to identify cases of interest
2. even if they attend, s12 Administration of Justice Act 1960 (‘s12 AJA’) means that they cannot report anything unless they make and are successful in making an application for permission to report, which is daunting and time consuming and may well be opposed and ultimately refused
3. even if they get permission, publication of anything which is said to inadvertently go beyond that permission could result in a fine or imprisonment.

Overall therefore, it rarely makes sense to even attempt to attend a Family Court hearing unless there is a known case of public interest or obvious newsworthiness and the cost benefit analysis justifies attendance.[4]

2. In 2014 Guidance was published which encouraged the increased publication of judgments from both the Family Court and Court of Protection. Prior to that point judgments were typically only published at High Court level and above and where they set a precedent. Following the publication of the 2014 Guidance there was a temporary upturn in the rates of publication of judgments at Circuit and High Court Judge level but in recent years that has declined substantially, for multifactorial reasons, including judicial and system workload and concerns around anonymization failures[5].
3. What did emerge as a byproduct of the increase in publication of judgments post-2014 was that the mainstream media began routinely producing news reports based upon published judgments (or an aspect of them which lent itself to a punchy headline) without ever having attended the court hearings or interviewing the parties (Typically these reports refer obliquely to the judgment by saying ‘details of the ruling appeared on a legal database’, without linking the reader to the full source judgment). Whilst undoubtedly that did increase the volume of coverage of Family Court cases, it did not always enhance the quality of it because much coverage was very superficial and tended to create distortion by focus on one small aspect of a judgment that was very much more complex. We have pursued a number of complaints with or against various mainstream media outlets in connection with their coverage of Family Court cases in such matters.
4. Research indicates that the frequency of highly distorted and tendentious reporting of family court cases in the mainstream media has reduced since our formation in 2014.[6] This is supported by our own anecdotal observations.
5. Over the same period there has been a marked increase in the sustained efforts of a few journalists to gain access to the work of the family court and to produce in depth coverage of it through print or broadcast media[7].
6. In 2016 The Court of Protection began sitting in public, so s12 AJA no longer applied, and any person could attend and report on hearings providing they complied with a ‘Transparency Order’ which typically protects the identity of ‘P’, the person the case is about.
7. In 2017, following the poor media coverage of the so-called ‘Muslim Foster Carer’ Tower Hamlets case, we proposed a ‘legal blogging pilot’ whereby qualified lawyers would be granted access to private Family Court hearings equivalent to that afforded to reporters. That pilot has been running since October 2018 and is now a permanent feature of the rules. Although successful, it has not achieved as much impact as we would like because of practical barriers and disincentives for eligible lawyers attending – and reporting. As with journalists, permission must still be sought to report what is observed.
8. In 2020, following the move to remote working as a result of the pandemic, Professor Celia Kitzinger and Gill Loomes-Quinn set up the Open Justice Court of Protection Project[8], as a result of which there has been an explosion in the numbers of lay observers attending and blogging about their observations of Court of Protection hearings. Notwithstanding the sensitive subject matter, the presence of observers at Court of Protection hearings is now almost entirely normalised and is dealt with as a matter of routine, although there are still some practical barriers to access to remote hearings which apply across the board.
9. In May 2020 an open letter from NGOs and academics on open justice in the Covid-19 emergency, including on behalf of the Transparency Project, noted that while efforts were being made in some courts to enable non-media public attendance, “In reality, in many cases, members of the public – including many of the signatories to this letter – have encountered severe obstacles when trying to observe the justice process, particularly in the lower courts”. The signatories “urge the government, judiciary and court service to engage with groups beyond the traditional media to improve the public’s ability to see that justice is done”, and to “expand the range of data collected on remote proceedings in order to better monitor experiences of court users, and the implications for fair and equal access to justice”[9].

19. Thus, attendance at hearings and reporting of Family Court hearings is still the exception rather than the rule, as is publication of judgments. In addition, statistical information about patterns in the Family Court is very patchy. Family Court proceedings are unique in their lack of transparency both in respect of individual cases and in respect of the bigger system-wide picture.

20. We set out in our response to The Transparency Review why we thought that the current state of affairs is profoundly damaging. It has contributed to a particularly acute corrosion of public trust and confidence in the Family Justice System and high levels of criticism based upon subjective experience.

21. In our response to the Review we cited the public concern and debate around courts’ (mis)handling of domestic abuse to illustrate the problem. That debate has continued since we submitted our response, but remains in large part subjective, anecdotal, and plagued by a lack of clear information or data about what happens in individual cases, patterns of behaviour or system responses.

22. A connected and sometimes opposing debate is on family courts and suspected parental alienation. Here, we use that issue to illustrate the paucity of information. There are around 45,000 private law cases issued in the Family Court each year. Anecdotally, allegations of parental alienation are raised in a significant number of these (though no statistics are available to enable a percentage estimate to be made), but between October 2020 and October 2021 only 29 judgments referencing parental alienation were published, mostly by High Court Judges. There is substantial public and mainstream media interest in these topics, but a real paucity of hard evidence about the justice system’s responses.[10].

23. Further, mainstream media coverage of such issues is naturally focused on publicly available information which is newsworthy. This often means publicising appeal judgments confirming an error on the part of a judge or a miscarriage of justice. A case in point is the media attention around the recent conjoined appeals in the case of Re H-N [2021] EWCA(Civ) 448[11], where 3 of 4 appeals were allowed against the decisions of 3 circuit judges asked to determine allegations of domestic abuse and rape. Whilst coverage of that case was important (and we blogged and live tweeted it ourselves), the lack of information about cases that do not go wrong or are not appealed distorts public perception and in turn erodes public trust and confidence. Lawyers would say this is the system demonstrably showing it puts mistakes right, but that is probably not the way the public see things. Conversely, arguments that errors like those in like H-N are typical or common cannot be properly challenged (or confirmed) without better information. Any well-made arguments are less likely to be effectively acted upon.

24. Speaking extra-judicially, Lord Justice Peter Jackson stated that there are about 16,000 care cases completed every year, each involving a big decision at the end and numerous smaller decisions along the way. He contrasted that figure with the fact that the Court of Appeal receives only around 550 appeals in each year, in respect of which permission to appeal is granted in about 90, with the appeal being allowed in about 60 cases. He observed that for every 1000 cases, an appeal is allowed in 4 cases, and an appeal is dismissed in 2 because the judge was not wrong. And yet, he observed, nobody hears about the 994 cases where there is no appeal.[12] The fact that a very small number of first instance judgments are published on BAILII each year, and that few of these will be converted into news reports in the mainstream media does not take the force from the point.

WHAT BARRIERS THERE ARE TO THE MEDIA OBTAINING INFORMATION FROM THE COURTS

25. There are two types of reporters who are entitled to attend private hearings in the Family Court :
1. Accredited (press card holding) media representatives, since 2009
2. ‘Legal Bloggers’ i.e. qualified lawyers meeting certain criteria, since 2018

26. Neither attend with any regularity or in large numbers. The difficulty obtaining information is a significant barrier to reporting of the Family Court and depresses the numbers of those attending. The lack of familiarity with professionals working within the system around issues of media attendance tends to promote confusion and resistance, which in themselves represent further barriers.

27. We perceive there are 3 primary information barriers : listing, access to documents, and contact details.
     

Listing

28. Family Court lists are highly encoded and singularly uninformative. They generally contain no explicit information about the nature of the case or the type of hearing, and the names of all parties will be removed. It will be possible to identify that a case concerns a child because the list will typically say ‘Re A Minor’, but many reporters will be unable to decode the case number that provides an ‘insider’ with additional information such as year of issue and broad category of case (private children, public children, adoption, finance or divorce, injunction). Even that semi-coded level of information does not assist a reporter to make a decision on which hearing to attend.

29. Family Court lists are ‘publicly’ available via Courtserve, a commercial website. Whilst there is no fee for access, in our experience many reporters are unaware of it.

30. Family Court lists are generally not published on Courtserve until after 2pm on the day prior to the hearing, leaving a very short window of time for any reporter to make contact with the court and obtain a link, or alternatively to travel to court. In addition lists are not infrequently missing or inaccurate. Although we do not suggest a reporter ought to be required to give advance notice of intention to attend, the fact that reporters are unable to do so even if they choose to, has consequences on their ability to attend, understand and report. The lack of notice makes it harder for legal representatives to obtain instructions prior to the commencement of the hearing and in our experience increases the likelihood that court time is wasted dealing with applications to exclude the reporter (such applications rarely lead to exclusion). Moreover, the lack of notice means that it is impractical to gain advance access to documents because such requests require the reporter to make contact with the judge, and the judge to take the views of the parties in advance.

31. Much of what we say here about Family Courts applies with equal force to the Court of Protection.

Access to documents                            

32. Access to documents (or lack of it) impacts upon
1. a reporter’s ability to select a hearing of interest,
2. a reporter’s ability to follow and understand that hearing in real time, where oral submissions are often heavily curtailed by reference to documents the judge has already read,
3. a reporter’s ability to make a properly informed and appropriate request for permission to report what has been observed in a private hearing (and to avoid a request for publication that might compromise privacy)
4. a reporter’s ability to produce accurate and balanced reporting of any hearing observed.

33. In family proceedings subject to practical barriers associated with late notice and time pressure, judges are generally willing to permit disclosure of case summaries or skeleton arguments on a confidential basis. It is far less common for other materials, which may contain highly sensitive and intimate detail about past abuse or traumatic experiences, to be released to reporters. We think that the former should be standard, but the latter should be dealt with on a case by case basis, and in many cases disclosure will not be necessary or appropriate. Unless relaxed, there are automatic prohibitions on publication of the information in any such documents, both in terms of identity and substance.[13] In conjunction with the existing requirement for reporters to provide ID documents and proof of eligibility to attend, these are adequate safeguards.

Contact details

34. We commend the practice that has developed since the pandemic of most court lists now providing a specified email contact for the purposes of open justice requests, which does to some extent ease the difficulty of gaining access to remote hearings in time.

35. However, the email address provided is typically a generic court inbox which is not reliably checked between 2pm on the day of publication and 10am the next day. Our experience and that of those attempting to attend hearings in the Court of Protection is that persistence is required through both email and telephone and on occasion an observer / reporter is unable to gain access in time, and is certainly unable to make any request for documents prior to the hearing. Once the individual judge is aware of the request, the process typically speeds up, but reaching an individual at the court in order to ensure the judge – and parties – are made aware of the proposed attendance is challenging.

36. It is often very difficult for a reporter to secure access to contact details of participants / legal representatives in order to liaise with them regarding requests for documents, permission to report or other issues. This has a knock on effect on the court process because a reporter must route enquiries through the court and issues that can and should have been resolved through discussion prior to a hearing often take up valuable hearing time instead, which may lead to a view that attendance is a nuisance or disruption.

37. Clearer guidance on routes of communication and expectations on court staff and professionals in terms of the sharing of contact details would be useful.[14]

WHAT COULD BE DONE TO MAKE INFORMATION ON COURT CASES MORE TRANSPARENT AND ACCESSIBLE

38. Court lists should be more informative, published earlier, and should provide contact details for someone who can facilitate access / communicate requests for documents.

39. We would like to see a streamlined process for access to documents – e.g. a default of provision of documents to an attending journalist on provision of ID and written confirmation of understanding of restrictions on publication.

40. Develop ways of working around s12 AJA (or reform it) so that anonymised reporting is the default position.

41. Proper resources for the important process of anonymisation of judgments prior to publication, to support more consistent publication of typical and representative judgments, and to minimize the incidence of anonymisation errors.

42. More data should be collected about court users, their experience of the system, and about long term outcomes. Statistics are patchy and often published late.

43. We give more detail about the above proposals and others in our written and oral evidence to the Transparency Review. We hope that on 28 October we will be told that some of our proposals have been adopted, but we are conscious that some of our requests are not within the gift of the President of the Family Division (such as reform of s12) and are more suitable for Parliament to consider.

THE IMPLICATIONS OF SOCIAL MEDIA FOR COURT REPORTING AND OPEN JUSTICE

44. The judiciary and court service engage with social media in highly constrained and limited ways, and individual judges are effectively barred from doing so under official guidance[15]. However, social media does offer a channel for public dissemination of information, public legal education, and a space where misinformation or misunderstandings can be challenged (as well as perpetuated and spread), myths busted, and facts checked. Ignoring the potential benefits of social media as a tool of public legal information risks leaving the field to the spreaders of misinformation, whether malign or merely mistaken.[16]

45. Social media is a main route for communication and dissemination of the work we do at The Transparency Project. By engaging on social media we are able to promote and engage in public debate, share information and offer explanations about individual cases, the law and the work of the family court. We are also able through those engagements to better understand where public understanding is lowest, and where public anxiety and concern is highest, in order to better direct our energies. Engagement on social media has informed our appreciation of the level of public disquiet and concern about (for example) handling of domestic abuse, and has enabled us to drive the transparency agenda forwards. It is an important mechanism both for engagement of the public at large and the professionals working within the system in an understanding of the need for open justice and the benefits it can bring.

THE EFFECT OF COURT REFORM AND REMOTE HEARINGS ON OPEN JUSTICE

46. Whilst the move to remote access during the pandemic has presented a real opportunity for increasing levels of observation and reporting through the removal of geographical barriers, it also brings some additional challenges and different barriers. Where an observer or reporter attends in person they can identify and make themselves known to an individual upon arrival (usher or court clerk) through whom to pass messages, and also identify and make contact with participants in the case, check whether there are any reporting restrictions, and deal with any anxieties about attendance or reporting, thus reducing the likelihood of time being taken up in the hearing on such issues. They can request documents and more easily switch to observing another case if it becomes apparent that the case that they had intended to attend is not interesting or appropriate.

47. In a remote hearing context a reporter may have invested substantial energy into gaining access to a hearing about which they know almost nothing, only to find that once they gain access it is of little public interest.                           

48. These barriers are obvious disincentives to commercial media organisations and to freelance journalists, and they compound the substantial economic risk associated with attending or attempting to attend and report on Family Court hearings : whether by deploying resources to a hearing which is may not be accessed or from which they are excluded, may not turn out to be newsworthy, or in relation to which their reporter is NOT permitted to report – and the financial risk of a fine in the event that something is reported which ought not to have been.

49. For legal bloggers these barriers operate as disincentives but in different ways. Legal bloggers are typically fully employed as legal professionals, either at the bar or in academia. As such they typically attend hearings at short notice in the event of an unplanned diary collapse, and may be more likely to attend hearings ‘on spec’ rather than selecting a known case for actual or perceived newsworthiness. Legal bloggers are more likely to be happy observing and reporting a ‘typical’ but not necessarily ‘newsworthy’ hearing. However, the act of legal blogging is voluntary and unpaid, and for a self-employed barrister represents a loss of earnings. The ‘cost’ of legal blogging is mitigated where remote access is possible, but a lack of information about a case, and in particular what stage it has reached and how long the hearing is likely to continue for, can make it very difficult for a legal blogger to commit to attending a hearing.[17]

50. Whilst in the Court of Protection the Open Justice Project was able to capitalise on the ability to access hearings remotely, that opportunity has been harder to capitalise on in the Family Court for two main reasons : firstly, because of the more limited group of individuals eligible – and available - to attend hearings at all whilst the court continues to sit in private (lawyers working in Family cases have been flat out trying to clear the backlog); and secondly, because of the ongoing chilling effect of s12 AJA which is not operational in the Court of Protection due to the court sitting in public. To allow larger numbers of non-media observers to regularly observe and report on the work of the Family Court, with all the associated advantages for open justice and public / professional legal education that could bring, there needs to be a broadening of access and a mechanism to mitigate the effects of s12 AJA, whilst also maintaining appropriate levels of privacy.

51. We note the remarks of Mr Justice Hayden at the FLBA conference recently, indicating his hope that it would be possible post-pandemic to preserve remote access whilst also facilitating attendance at court by attendance at a court building. We hope that will be possible in the case of the family court also. We agree with his remarks to the effect that to do otherwise would represent a step backwards in transparency which should not be countenanced[18].

52. In the longer run we do think that robust systems through which observers and reporters may access a hearing with ease should be a priority that supports the open justice agenda.

53. We note the increase in the rates of livestreamed appeals in the Court of Appeal, including some family appeals and we think those are important and that livestreaming of appeals is to be encouraged wherever possible. The level of public attendance and engagement with the case of Re H-N, which was accessible to the public (via Teams rather than livestream) was significant – with up to 200 members of the public on the link at various points. Our live-tweeting and blogging of that hearing was only possible because of our ability to attend via remote access, and this also generated substantial engagement from the public, all of which contributed to public debate about the important societal issues of domestic abuse and its impact, and around the handling of such issues by the Family Court.

Lucy Reed

Barrister and Chair of The Transparency Project

For and on behalf of The Transparency Project Team

20 October 2021