Publishing information about family proceedings

Many moons ago in June 2009 I wrote a post entitled Writing about family proceedings – a blogger’s guide. A lot has changed since then. Although, oddly, the law has not. What has changed are judicial attitudes to free speech. Some would say what has changed is the balance between free speech and privacy.

So I thought I ought to take a look at that post and see how accurate it now is, in light of a wealth of judicial guidance.

Actually, it’s not as bad as you might think. The references to the Family Proceedings Rules 1991 are now out of date, but the substance of those rules survives untouched in Part 12 of the Family Procedure Rules 2010 and Practice Direction 12G. And pretty much everything else is still governed by the same law (the changes I anticipated at the time through the Children Schools & Families Act 2010 were never brought into force and were ultimately repealed in April this year).

My eleven points are still good, because what I set out there is the framework and the starting point, rather than where the balance is likely to fall in an individual case.

But I do think its worth noting that since 2009 there have been examples in published judgments of individuals being sent to prison for contempt of court after publishing information in breach of a court order, and that there have been judgments where the court has permitted far broader publication of information than many would have anticipated in 2009. For example in the case of Re J (A Child) [2013] EWHC 2694 (Fam) a father was retrospectively permitted to publish videos of the removal of his newborn baby under an EPO – but he was not to name himself or the child. It is now far more likely that the naming of social workers and professionals will be expressly permitted by the court – if asked – and that parents will be permitted to tell their story, albeit usually on an anonymous basis.

Overall, the judiciary are more alive I think to the need to permit parties to proceedings to tell their stories and air their views about the process and outcomes of family proceedings, as long as that is compatible with the safety and welfare of the children. Although the media still refer to the family courts as secret there is ever more clear water between the privacy that is justified and necessary in individual cases and the blanket secrecy that critics suggest continues to apply. That is to say, the default position as set out in my 1-10 points is still in favour of privacy, but where justified on application the court will modify the applicable restrictions. Some would say no application should be necessary and the default should be openness but that is a fundamental shift that only Parliament can achieve.

The Dirty Dozen

Yes, view 12 has hatched [edit : oops forgot the link]. And it’s a free range grade A double yoker, a veritable golden one (does this analogy make the President a goose?)…

For those who were feeling hard done by, we have new acronyms to ease your pain. To add to CAP we have MAP (it’s beginning to sound a lot like a Dr Seuss book around here) and something called an N-CDR which I think is probably a new acronym for ADR DR (sorry – keep up!), as in “Non Court Dispute Resolution”, which I think you’ll agree insinuates a sort of Re B-S “option of last resort” status for court based dispute resolution, along with a slightly incongruous mental image of a shiny computer disc.

The obligatory hidden pun is also evident in this view. Yes, I for one am still sniggering at the notion of the “uncoupling” of divorce procedure. Such is my desperation that I find such things wildly funny. I like to think that there was intentional humour in the encouragement of the “rigorous control of the proliferation of paper”. Rigorously proliferating? Anyway, I like to think this is two puns in one view, thus truly meriting the “double yolk” title (that’s a third pun, you see?).

Unsurprisingly our old chum transparency gets a mention again – more consultation to come.

FDAC is also flavour of the month, but sadly not many LAs are champing at the bit to stump up the costs that are a prerequisite for such projects to get underway locally, because although FDAC is cheaper, quicker and more effective. It’s a no brainer, but it requires an individual with energy and guts to get it going. And they’re all too busy drowning, going off sick and seeking a career change by the sea.

There is a general (justifiable) moan about problems arising from the absence or refusal of legal aid – whether that be for representation or for the payment of experts. “The wider issue remains at present unresolved” says the President, spectacularly understating the obvious.

The wider issue is due to get an airing soon though, by the sound of things. See Q v Q [2014] EWFC 7 (21 May 2014), where the President says “Get me the Minister!” in a manner I like to imagine the Queen from black adder would do (this may be prompted by endless youtube clippage of Rik Mayall in the bridesmaid scene this week, bless his foul mouthed funniness). Watch this space…

There is plenty more in this particular view. Like all the best omelettes, it is chock full of all the odds and sods that were lurking around in the kitchen.  You know : all the things you need to do something with quick, or they are going to cause a suspicious pong in your fridge. In a similar way, the President has lobbed in all the bits of the family justice system that are teetering at their best before date or have seen better days – legal aid, funding for experts and drug tests, interpreters, the IT system…

Anyway, enough of my egg related nonsense….

Proto-Manifesto

Can I run this past you? And you can tell me if I’m losing the plot. I have this brainwave that won’t go away and it’s either genius or as mad as toast.

I’m struggling for a name for it, so I’ll just describe it. And I would genuinely welcome comments, criticisms and contributions about whether its daft, brilliant, naive or just “meh” – and what needs to happen to make it a reality.

Here goes. Deep breath.

I rant a lot about transparency. I’m generally for it, without wanting to throw the baby out with the bathwater and strip families – particularly children – of privacy at the most difficult moments in their lives, and when they are dealing with often extraordinarily sensitive and difficult issues. But transparency matters. Because public confidence in the system depends upon it. Because without public confidence, and without more particularly the confidence of the individual litigants caught up in family disputes and care proceedings, the outcomes get skewed. I don’t mean skewed reporting, although there’s plenty of it about. No, I mean the actual outcomes for families are affected by a lack of confidence in the family court, because that lack of confidence alters litigant behaviour. And litigant behaviour has a profound impact on relationships with key professionals within the justice system – from social worker to judge. Solid cases can be transformed if run by angry, mistrustful, confused litigants. And both family disputes and professional concern about families can escalate as a result.

The endemic crisis of confidence on the part of litigants in the ability of the court system to provide justice or to help resolve their family dispute arises from both misinformation (which can come from poor press reporting or inaccurate material online) and from an absence of good information (either because its not there, can’t be located or isn’t readily digestible to a non-lawyer). Self-evidently this is a far worse problem for litigants in person, of whom there are now many.

And much as I acknowledge the role of the press as the so-say “watchdog”, uncovering wrongdoing or miscarriages of justice and the like – I don’t think that the press alone is a vehicle capable of or willing to perform the role of neutral provider of information, of “public legal education” if you will.

For me, it is a waste of breath wishing the press did something they are never going to do : the press comprises of commercial enterprises, who need to sell stories to survive. The range of material they report will always be selective. The manner in which they report stories will usually be interesting, entertaining or racy, but not always informative or educative. On one level it’s difficult to criticise them for that. As the fox said to the frog “it’s in my nature to be a fox”.

So the press aren’t the answer.

And the transparency reforms comprising (so far) of the more widespread reporting of judgments on Bailii is not the answer. Because the public don’t read Bailii. And the press don’t link to Bailii so that the public can read an alternative account of their storified account of a case by matching it to a Bailii report. Does a judgment on Bailii make a sound if nobody is listening?

But I think more and different reporting may be part of the answer.

But not by the press. And not by what we would describe as “law reporters”, for the Law Reports.

We need an organisation providing not for profit reporting of family cases for the public.

Let’s tell them what happens in the family court. In the interesting scandalous cases for sure – but also in the run of the mill, happens up and down the country every working weekday sort of cases too.

Let’s tell them when the system works as well as when it doesn’t.

Let’s have commentary, but let’s clearly distinguish between reporting and commentary and let’s make whatever we report accurate and balanced.

And let’s put it all in one place, freely available to the public, searchable, authoritative and updated regularly.

Would that be so radical?

So here’s my proto-manifesto (I’m not sure it’s really a manifesto or a business plan or a project outline – more of a sketch / stream of consciousness affair) :

  1. An organisation would need to be set up. I can’t think of a name so let’s call it “The Panel” for now. It might be a charity or social enterprise, but would probably need an administrator and a committee. I haven’t really got my head around structure yet. There are costs implications of having an administrator.
  2. The organisation would require a clear constitution setting out purpose and objectives, and a code of conduct or some document covering policy / operational matters.
    • the purpose of the organisation would be public legal education about family law and the family justice system
    • the aims of the organisation would be to provide legally accurate and balanced information about actual cases in the family courts to facilitate public legal education, informed public debate and to complement press reporting and official judgments.
    • it would emphatically NOT be a PR vehicle for the family justice system nor a mechanism through which to simply counter criticisms of the system. The panel would seek to present a range of cases including those which highlighted both failings and successes / strengths and weaknesses of the system.
    • the organisation would need its own website which could act as a central repository of content produced under the scheme. There would need to be a strategy drawn up for dissemination of the information to the public in a range of formats. It would need to be searchable. Reporters would be permitted to publish the material on their own blogs or chambers websites if they wished to do so.
    • material would probably be divided into three main categories : case summaries, analyses of the legal significance of a particular case, and (probably) opinion / commentary pieces – and it would be the policy of the panel to clearly identify comment / opinion as such. the panel would have to have some mechanism in place so that overall opinion pieces covered a range of views.
    • Reports would be primarily based upon attendance at court hearings and access to court documents (where permitted), but in cases where a case becomes notorious / is reported material may be published drawing together news reports and authorised judgments / other material and assisting the public to make sense of that material in the context of the law and known facts.
    • the organisation might set out to cover a certain number of different types of cases or issues in each year, including some cases which are the subject of media interest and some cases which are not. Initially this would be a small number.
    • It would be policy to link wherever possible and permissible (subject to RROs and jigsaw ID issues) to other known reports about a particular case in the mainstream press, on BAILII and on e.g. Family Law Week.
  1. Practising lawyers (family lawyers?) should be permitted in the absence of objection to attend family court hearings on the same basis as accredited media representatives in cases in which they are not involved as lawyers. This would require a rule change or practice guidance, but recent experience suggests that where there is a will there is a way. This change can be justified on four bases :
    • accredited media representatives require no particular qualification or accreditation in terms of understanding reporting / privacy rules
    • practising lawyers can be considered to either have a sufficient level of knowledge to understand the reporting / privacy rules already or would be sufficiently competent to be able to acquire that knowledge
    • practising lawyers are constrained not by the NUJ code of conduct but by their own professional code of conduct, and this should act as an effective check on any lawyer (who would wish to avoid being in contempt of court / professional misconduct / bringing the bar into disrepute) so that the risk of them publishing material that they ought not to do would be negligible.
    • the lawyers would be operating under the auspices of the panel which would have a clear code, would indemnify, and offer training from time to time.
  2. The lawyers would offer their services pro bono, and would join a panel of reporting lawyers who would either identify cases of interest they wanted to report or who would volunteer to attend and report on cases which had been identified by the panel administrator, or where a request had been made for attendance by some other person.
  3. The lawyers might be expected to commit to report (say) one case per year.
  4. Their travel and subsistence expenses would need to be funded.
  5. There may need to be mandatory basic training prior to the first case being reported.
  6. There could be a system of peer mentoring / supervision so that panel members could “phone a friend” to discuss difficult issues as to what could / should be reported under the terms of the scheme / the law.
  7. The organisation would need to set out the circumstances in which it might support a legal representative to make an application for permission to see documents or report certain matters, and the mechanism for that to happen under the auspices of the panel. It might be that the “applicant” would technically be the panel / organisation and the lawyer would be the representative of it, so that costs liability would be that of the panel.
  8. Some form of indemnity insurance would need to be provided for individual lawyers.
    • This would need to cover the risk of costs orders if (for example) an application were made in relation to reporting restrictions which was unsuccessful (usually against the organisation but hypothetically at least against individual lawyers).
    • It would need to cover professional misconduct issues IF BMIF did not cover it
  9. judges and lawyers would need to be educated about the scheme and leaflets produced that would assist judges and legal representatives to help litigants understand what the project was about if a panel member wished to attend or report a hearing.
  10. Judicial support for the scheme would need to be garnered. There would no doubt need to be presentations to judicial meetings, local family justice board meetings etc to raise awareness.
  11. And crucially a fair old number of lawyers would need to sign up. My guess would be a few legal bloggers would sign up for sure but I genuinely have no feel for how many others would sign up. My guess is it would be a struggle and this would be a slow burn…
  12. To make this work there would need to be some systems in place to assist the panel in identifying suitable cases to attend and in knowing which cases in the public domain were subject to RROs. I imagine that to subscribe to CopyDirect would be impractical for financial reasons. I haven’t thought this through properly yet, but in an age of increasing transparency there ought to be a centralised list of what RROs are in place so that any authorised person who wishes to report on a particular case is able to be clear about what is permitted or not – and that includes in cases where there are press or other reports out there which name an individual in the case, but where it is presently unclear if it is permissible to identify that named individual as the same person referred to in a much more detailed judgment on Bailii. Clearly any list would need to be kept suitably confidential so a mechanism for access to the list or for checking a particular name or case number would need to be found.

So, what do you all think? Am I mad? I certainly feel better for having got it off my chest. It’s been whirring round in my brain for weeks and I haven’t had the time to get it down on screen in one sitting until now. As I read it back to myself it seems pretty ambitious and I’m worn out just thinking about it…Perhaps it is pie in the sky? At any rate I am going to hit PUBLISH now, because elsewise I fear it might never see the light of day. So you have my apologies for it’s unpolished glory, including the wonky paragraph numbering…

And no, I have NO IDEA how it would be funded.