No frills justice

I spent Monday in ridiculous lacy frills and an itchy wig watching judges process through Westminster Abbey to mark the start of the Legal Year – and the swearing in of the first Lady Chief Justice. This was an exhilarating day to be sure, and filled me full of renewed enthusiasm for all things justice.

 

But grand surroundings and rosy faced judges dressed in gold, purple and ermine isn’t the justice system that most punters see. And it isn’t the coal face that most of those judges work at when they put their fancy robes back in the cupboard and go back to their leaky-roofed court building in an ordinary drab, dark suit.

 

Here then, as a counterpoint to that, is a small snapshot into what goes on in the Family Court. Or at least what went on in one ordinary courtroom in central London on an ordinary afternoon in September 2023. This is justice writ small….

 

The ancient stained carpet tiles speak silently of years of spilt coffee if not milk. Everything is a bit grubby, and I’m pretty sure it hasn’t been redecorated since I was first here as a fresh faced pupil barrister 22 years ago this month. The courtrooms look exactly the same too, apart from the awkwardly stowed screens that are now used to give comfort to vulnerable parties, and which make half of the courtroom a trip hazard.

 

District Judge Cassidy* is quietly spoken, with a soft Scouse accent. He guides the advocates and calms the parties with skill, and without them even noticing. There is no drama at all. If I were a journalist I’d probably be disappointed. The judge has already dealt with a busy morning list which has overrun and made the two o’clock hearings late, but he is surprisingly on top of both cases I observe (noting what he has read, pausing respectfully to read documents that advocates have sent him but which the online court document ‘portal’ has gobbled up, and reassuring apologetic advocates who have been unable to prepare a document due to shortness of time).

 

In the first case I observe, a young mother is sat near the back of court, just in front of me. She is tiny, almost childlike, and is separated from her lawyer in the front row by a large expanse of empty desk. The only person facing the mother is the judge, but she is curled in on herself looking down. All others are backs turned to her and to me, and except when the judge speaks directly to her to reassure and thank her, I wonder if she may feel as if she isn’t a part of what is going on. I know from experience that clients can’t reach you on the front row in those courts, so are forced into doing a stage whisper, a dash and a shoulder poke or throwing a piece of paper to get your attention, none of which an anxious client would ever dream of doing.

 

The child’s social worker is to her left, separated by a gangway down the middle of the courtroom. She can be seen regularly leaning across and quietly explaining what is going on to the mother, in hushed whispers. I am watching these interactions and thinking to myself that I’m glad the social worker is there and offering support, because the layout of the court doesn’t really allow her lawyer to check in with her without stopping what she is doing and craning her whole body around. Not all social workers would make that effort, and not all mothers would accept it. These two seem to have a trust, a rapport – albeit probably a fragile trust, as they always are when a social worker is tasked with deciding whether to ask the court to take away your baby forever.

 

At the start, the judge introduces me, seeking confirmation of whether there is any objection to my observing. The advocate for the mother explains she has not spoken to her client about my attendance ‘due to her vulnerability’. At this stage I don’t know what these vulnerabilities are, but she looks small, folded in on herself and alone. I feel a pang of sympathy for her, who is now hearing for the first time in court that a reporter is here, sitting right behind her. The judge does a grand job of a simple summary of the rules that allow legal bloggers to attend, and gives me an opportunity to say that I may ask for permission to report at the end and will not identify anyone, and the hearing moves on. I always prefer to be able to say this out loud at the start of a hearing, because it seems to be the thing that most often makes people anxious – the idea that their name or face might be in the paper. I’m glad to have had the chance to give explicit reassurance, but it would have been better if the mother’s own lawyer had done it by explaining to her before the hearing.

 

My guess is that this mother is probably in her late teens, maybe early twenties. I hear that she is pregnant (not visible to me from where I am sat at the back of court) and she doesn’t have long to go until she delivers. The case isn’t about her unborn baby though, it’s about another child, Sam**. Sam is around a year or so old, and living in foster care.

 

Today’s hearing is to ensure that everything is ready for the final hearing, which is coming up in a few weeks time. That will decide whether Sam is returned to his mum or adopted. Although it’s not discussed at this hearing, it appears that there are no other options on the table for Sam, so the choice is stark for them both.

 

I glean that Sam’s dad has not been confirmed. The man whose details the mother has provided has been avoiding doing a DNA test and ignoring messages. Perhaps he too is a young parent, and not in a place to deal with such responsibilities. Perhaps there is another explanation. Either way, Sam’s mum is on her own. The judge makes directions for him to be told about the date of the final hearing and the fact that the baby may be adopted permanently, so there can be no later suggestion he hasn’t had a chance to step up, but if he doesn’t the case will move on without him.

 

The lawyer for the local authority explains that the mother has reconsidered her response to the threshold (the facts that justify social services bringing the case to court) and that part of the case is agreed. The lawyers haven’t had time to get their agreement down on paper yet, and the judge wants to see this in writing before approving it. It is through this discussion that I come to understand that the main reason for the local authority bringing the case was a mental health episode that made his mother acutely unwell and put Sam at risk of harm.

 

The mother’s lawyer explains that she is in a new relationship with a supportive partner. Another London local authority are carrying out a pre-birth assessment and everyone is agreed that they will need to see the papers in Sam’s case to do that properly. The plan is for mum and baby to go into a residential assessment unit when the baby arrives, which is hopefully an indicator that there is some prospect of her being supported to care for this baby. Judge Cassidy is told that the mother has taken a ‘realistic’ position about Sam’s case, reflecting that the social worker is supporting twice annual contact with him and it would be difficult for her to pursue a residential unit and manage with the new baby with Sam in her care too. I think to myself, ‘she’s probably been told she has to make a choice between her children’. I hate those conversations.

 

As a result of this ‘realistic’ position, the mother’s lawyer suggests to the judge that the time estimate for the final hearing can be reduced from four to two days. To the lawyers in the room this signals that the mother will not be running an active case against the likely plan for adoption, but the lawyer explains that the two days is likely to be needed to iron out issues about contact. Mention is made of section 26. This is the section of the Adoption and Children Act that gives the judge power to order contact between the making of final orders and the adoption. It doesn’t deal with contact after adoption, and I’m not sure whether this will form part of the longer term plan. Was the mother considering not pursuing return of Sam as long as she could be sure she would still see him from time to time? Was everyone on the same page about how long this contact would continue, and how certain it would be? (orders after adoption are really unusual, and although increasingly adopters are encouraged to agree – and do agree – some direct contact, this is still relatively rare).

 

I breathe a sigh of relief when the judge gently probes for clarification on the mother’s position. From what has been said it’s apparent that this was a position reached at court on the morning of the hearing, and the mother had only met her barrister today. And so the judge asked, ‘Based on your instructions today have you arrived at a point where the mother’s position can be formally recorded in an order or a recital or are you giving an indication?’

 

The mothers lawyer responded to clarify that she thought she was just giving an indication (just as well he checked) and that ‘realistically her case will be to try and persuade the court to allow direct contact with other people caring rather than her, as she will be focusing on her newborn’.

 

District Judge Cassidy probed a little further – did she realise the outcome might be stranger adoption? The barrister’s response was notably non-committal: ‘I have said those words’.

 

When asked whether, in fact, the mother perhaps needed more time to consider her position, the barrister conceded that was the case. I am not sure all judges would teased out that this was really not a certain position at all, given the way that it was initially presented. Based on my experience, many judges would have taken the mother’s stated position at face value and reduced the time estimate – in essence that the mother had realised she had to choose between her children and she had chosen the prioritise the child she had a better chance of keeping. Family Courts depend on advocates giving realistic time estimates based on their instructions, and the position of a barrister instructed for a hearing of this sort, when they are expected to meet and advise a client all in the pressured hour before a hearing is not easy. I think some advocates would have allowed the client breathing space and ensured they had clear settled instructions before inviting the judge to reduce the time estimate on the strength of instructions received at the door of court from a vulnerable client facing such an impossible choice between her two children, but there is a lot that goes on behind the closed doors of the conference room and things are not always as clear cut as they seem to an observer who wasn’t in the room. From what I had heard it sounded like a sensible position, but a very painful one to reach nonetheless. The other parties agreed with the judge that the time estimate should be maintained for now so that the court had time to deal with the case properly if the mother’s position shifted. I think the judge was right to give this mother more time to think about her position and, if it is ultimately the choice that she makes, at least she will hopefully be able to feel that it was her decision, rather than being swept along with it. From another perspective, if she does change her position and seeks to challenge the local authority case and to have Sam returned to her care, this approach ensures that it can be done fairly without the delay that would be caused by having a time slot that wasn’t long enough to complete the case in.

 

As I was pondering all this, a potential problem arose with the planned final hearing – it couldn’t be found in the court diary. This is sadly not an uncommon issue. There is a brief discussion about whether the matter is booked but simply missing from the new fool-proof ‘List Assist’ system. Whilst the problem is being looked into by the court clerk, the lawyer for the local authority efficiently runs through some logistics around ensuring the hearing is ready for a decision – there is an internal process that has to be followed if a local authority wishes to seek authority to place a baby for adoption, and it has to be dovetailed in with the court process. It is always jarring to hear that process being described as if it is an inevitability – a sequence of decisions that will be made and documents that will be produced. Lawyers know that the ultimate decision is made by the judge, but the parents often hear the message that it’s a done deal.

 

The judge proposes modest time estimates for the questioning of witnesses, receiving nods from each advocate to acknowledge he has made a fair suggestion. He tots it up and agrees that the case can be dealt with in 3 days rather than 4 even if there is a full contest. And by the time that is sorted out the clerk has returned from the office with the news that ‘it’s not been listed!’. Ultimately however, the listing is found and all is well. The case can proceed and another judge will decide in early October what should happen to Sam. Other families travelling through these courts are not so lucky – cases being pulled due to lack of judges or listing mix ups happen more often than they should.

 

Before concluding, District Judge Cassidy thanks the social worker for explaining things to the mother as the hearing has gone along, and says he is sorry if some of what has been said might have been hard to follow. He suggests she has a chat with her lawyer outside court, and wishes her the best with her pregnancy. The mother remains silent, as she has been throughout.

 

Before we leave, I briefly outline that I’d like to report on what I’ve heard without identifying the family. I describe how I’d like to do that. No objections are made and I am given permission. Everyone files out of court, and shortly after, the other 2pm case in the list is called on, ready for District Judge Cassidy to . You can read about that in part 2.

 

* Full disclosure: I hadn’t really registered when I selected which cases to attend on this date, that the judge was District Judge Cassidy, who I do know as we are co-authoring a textbook together. We occasionally exchange emails and participate in group teams meetings about the book with other authors.

** The child’s name has been changed.

An appeal in an end-of-life case with broader application

Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 is an appeal judgment, which arises from the challenge by two sets of parents to continuing reporting restriction orders (RROs) that were made during separate proceedings about their children in relation to their end of life care. The RROs have endured after their poorly children both passed on and the court cases concluded. The parents wished to be able to talk about their experiences, but were being prevented from doing so by the continuing RROs. These orders had been made to prevent the identification of staff at the hospital, at a time of high emotion. In other high profile cases involving end of life care of children, protests outside hospitals have caused fear and disruption to staff, patients and their families, and seeking such reporting restriction orders has become more commonplace as a way of managing these issues.

 

The decision isn’t just relevant for end of life cases. It holds broader potential relevance for other sorts of family court cases where there is an issue about reporting restrictions or publication, given the increasing interest in open justice across the spectrum of the family court’s work. This is so even though most family proceedings are heard in private and (at least where children are concerned) will typically be the subject of statutory reporting restrictions – the same issues arise albeit from a different statutory starting point. This post explores that potential broader application.

 

The original decision was made by the President of the Family Division Sir Andrew MacFarlane (see Abbasi & Anor v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam), [2022] 1 FLR 348). In that judgment the President rejected the parents’ applications to discharge the injunctions and left these in place. He had some pretty strong words about the decision of his predecessor Sir James Munby in a case called A v. Ward [2010] EWHC 16 Fam; [2010] 1 FLR 1497. In Ward, Munby J had said that anonymity should not be afforded to a class of individuals in the absence of “compelling reasons”. The (current) President said:

 

‘Standing back and looking at the issue as it is presented now, in 2021, the time has come to draw a line under A v Ward insofar as it purported to establish that anonymity is not to be afforded to a class of professionals unless there are compelling reasons for doing so. The approach in law is that set out by Lord Steyn in Re S and in respect of the requirement for ‘compelling reasons’ the judgment in A v Ward must be regarded as per incuriam and should not be followed. In accordance with Re S, there should be no default position, or requirement for ‘compelling reasons’, in such cases. Any such application should turn on its own facts, including the overall context, where that is made out, as to the significant negative impact that the unrestricted and general identification of treating clinicians and staff may generate.’

 

Not only that, the President was heavily influenced by evidence of various eminent medical professionals said to show ‘the potential for there to be a highly negative impact on individuals, and upon the staff collectively, in the event that the parents’ stories are taken up and given prominence in social and/or mainstream media’, and considered that the more stringent approach to class claims in Ward was now outdated. Where Sir James in 2014 had said that

 

‘One can sympathise with conscientious and caring professionals who cannot understand why they should be at risk of harassment and vilification for only doing their job – and a job, moreover, where participation in the forensic process is not, as it were, part of the ‘job specification’ as in the case of social workers and expert witnesses. But the fact is that in an increasingly clamorous and decreasingly deferential society there are many people in many different professions who, however much they might wish it were otherwise, and however much one may deplore the fact, have to put up with the harassment and vilification with which the Internet in particular and the other media to a lesser extent are awash.’

 

Sir Andrew’s riposte had been this:

 

‘Why should the law tolerate and support a situation in which conscientious and caring professionals, who have not been found to be at fault in any manner, are at risk of harassment and vilification simply for doing their job? In my view the law should not do so, and it is wrong that the law should require those for whom the protection of anonymity is sought in a case such as this to have to establish ‘compelling reasons’ before the court can provide that protection.’

 

The disapproval of Ward is of broader relevance, because it is not only in end of life cases or in respect of medical professionals that anonymity is claimed – and indeed Ward didn’t relate to medical professionals at all, it related to social workers. There has been a long rumbling debate about the expectation of anonymity on the part of certain classes of professionals operating within the family court (predominantly social workers). The Ward ‘compelling reasons’ was ported into the 2014 guidance published by Sir James Munby relating to the publication of judgments:

 

  • ‘Where a judgment relates to matters set out in Schedule 1 or 2 below and a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published…
  • Public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named…
  • Anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.’

 

Social workers, it was made clear, could not expect anonymity as a class. In subsequent practice however, when judgments were published individual social workers were often anonymised (even by Sir James) because of the tendency for undue focus to be directed towards hapless frontline social workers when management failure or systemic issues were to blame. Children’s Guardians, to whom such issues did not apply in quite the same way, continued by and large to be identified routinely on the rare occasion that judgments were published, and lawyers and judges are invariably named. As recent criticism of the social work profession by the Prime Minister reminds us, social workers are often the subject of strong and very public criticism, some of it unjustifiably harsh, and this has meant that they have felt vulnerable.

 

The President’s Reporting Pilot that is currently running in three family courts adopts a standard ‘transparency order’ which (subject to adjustments to suit the needs of the particular case) affords anonymity to not only frontline social workers but also to Cafcass guardians and report writers. Arguably this approach is neither consistent with prior practice or principle, but it is no doubt a piece of pragmatism that enabled the pilot to get off the ground. The transparency order template was drawn against the backdrop of these long rumbling debates about the protection of individual social workers and in the shadow of the long awaited appeal decision in Abbasi. The President’s decision in Abbasi was based upon a raft of impressive sounding evidence about actual harm and difficulties that had arisen in other similar cases, an evidence base which is notably better than that the hypothetical worries and non-specific anecdotes usually relied upon when seeking anonymity for social workers as members of that profession, but even so the Abbasi first instance decision had seemed to reflect a shift in the tide away from an emphasis on transparency that made it rather harder to argue that the caution against class claims in Ward was an important principle to maintain’.

 

So what does the Court of Appeal say about this?

 

The Court of Appeal went back to the case of Re S [2004] UKHL 47; [2005] 1 AC 593, which the President relied upon in indicating that Ward should no longer be followed. Re S is House of Lords authority, and sets out the approach a court must take when required to weigh up competing Article 8 and 10 claims. The first of four propositions is that neither article has any precedence over the other ‘as such’. The Court of Appeal reviewed a number of well known cases where senior courts had carried or considered out such exercises.

 

At paragraph 77 Lord Burnett says,

 

‘All of these cases demonstrate the high value attached to freedom of speech in our domestic common law order which is reflected in article 10 of the Convention. The use of the language of the need for “compelling” evidence to curtail free speech reflects that importance recognised in domestic authority and Strasbourg caselaw.’

 

He went on to say,

 

‘The absence of hierarchical primacy between articles 8 and 10 shows that there is no separate legal test arising from the use of the word “compelling” in discussion of the balancing exercise. Rather, the practical realities of the balance in such cases will be that evidence of a compelling nature is needed to curtail the legitimate exercise of free speech. That explains the use of the term “as such” in Lord Steyn’s formulation in Re S at [17] and the emphasis he gave to it’

 

The judgment spells out the legitimate purposes of the orders having been made in the first place:

 

‘The RROs were concerned with the integrity of proceedings, the welfare of the children in question and the wider immediate impact on the staff concerned in the cases and on the operation of the hospitals in circumstances where tensions were high. Experience suggested that social media could explode with vituperation and some people would translate their strongly held views into inappropriate behaviour.’

 

The Court of Appeal effectively reinstates Ward, whilst also acknowledging the obvious truth that some scenarios will give rise to the sort of compelling evidence that justifies imposing a restriction – here, end of life cases around and shortly after the time of the litigation, treatment and death. But such serious restrictions are only likely to be justified after consideration of the specifics, and only on a time limited basis.

 

Article 10 – how much detail is required?

 

As regards the approach to those who seek to exercise their Article 10 rights, the President had ‘laid considerable weight on his view that there was a ‘lack of any specificity’ regarding the substance of the allegations that the parents wished to make, or the identity of those they wished to name when doing so’, though he had ‘recognised in terms that there was no requirement on the parents to tell the court what they wanted to say’.

In any event there was not a lack of specificity as had been suggested.

The Court of Appeal said that,

‘Clearly, the more information a court has when balancing rights, the easier it is to undertake an intensive scrutiny on each side to conduct the ultimate balancing test. The President was not suggesting that before relying on article 10 a person was required to provide copy to the court or to get pre-approval for publication. The point travels no further than that if a person comes to court and speaks in general terms of article 10 rights when there are powerful qualified rights on the other side of the balance, the article 10 rights may not weigh very heavily.’

This is useful because it is not uncommon for those who seek permission to publish reports relating to family proceedings to be asked for more and then more details of the proposed contents of a publication – in effect for copy approval, and this judgment confirms that copy approval is not a requirement, but also endorses the common sense reality that the more detail that is given about a wish to publish or to tell a story the easier it will be for the court to appreciate the strength of the Article 10 rights that are engaged.

 

What falls within Article 8?

 

Importantly, the court observed that ‘Many of the reasons advanced in support of the continuation of the RROs [did] not bear on the article 8 rights of the NHS staff.’

 

The court here was referring to arguments relating to staff morale and recruitment, which had clearly influenced the President. These are familiar arguments to many family lawyers: here they were deployed by the health trusts, but they are more commonly deployed by local authorities who seek anonymity for their social workers or the authority itself. Quite properly, the Court of Appeal pointed out that whatever these arguments are, they are nothing to do with Article 8 or Article 10 and should not be weighed in the balance. That isn’t to say that evidence of a risk of harm to an individual social worker (perhaps a threat, or a particular vulnerability) might not give rise to Article 8 arguments, but a generic ‘this will make things difficult for our profession or institution’ argument has no place on the scales in a competition between Article 8 and 10.

 

There is also an interesting discussion about the ‘unusual’ nature of the (so-say Article 8) risks in question:

 

‘The circumstances in which Article 8 is being relied upon are rather different from the usual, because they concern a risk of behaviour that may result in a lack of respect for the private life of NHS staff; and a risk that results not directly from what is planned by the parents in these cases, or the mainstream media if they were to take up the stories, but the uncertain behaviour of others.’

 

This ‘third party actor’ risk was said to be unusual because it involves an uncertain consequence rather than a known, measurable outcome, and depends upon the actions of people not involved in the litigation (I’m not sure how unusual this really is to be honest). The Court of Appeal struggled to find any helpful case law to help it work out how to carry out the balancing exercise:

 

‘In so far as Article 8 is engaged on one side of the balance there must be a careful analysis of the realities of the risk. We were shown no Strasbourg authority establishing generally how to balance the future risk of an interference with Article 8 against a concrete interference with the right to free speech; still less how to balance the right to free speech against an indirect and speculative interference with Article 8 rights not arising from the immediate exercise of the right to free speech itself. It is difficult to construct a hard-edged rule, as there is when considering unqualified rights, because whatever approach is adopted, assuming that the risk is real and not entirely speculative, the court will be required to undertake a balance.’

 

The court drew by analogy on the approach of courts in Article 3 (prohibition on torture) cases, which ‘makes clear that the evaluation of risk in that context requires an objective assessment and a significant threshold’, and concluded that they should adopt the approach set out by Peter Jackson LJ in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761; [2019] 1 FLR 779, namely that:

 

‘…there must be… an intense focus on the type of risk that is involved, how likely it is to happen, and what the likely consequences might then be. Only by carrying out this exercise is it possible to know what weight to give to the risks before setting them alongside other relevant factors.’

 

The President’s view was that ‘the detailed and substantial case for protecting staff anonymity comfortably outweighed the parents’ basic assertion of their right to freedom of expression. The outcome of the balancing exercise was therefore plain to see and did not require an intense focus.’

 

By contrast, the Court of Appeal took the view that this was not correct, and that perhaps this intense focus might have brought to light the fact that much of the evidence presented did not bear on article 8 at all.

 

The actual risks contended for were summarised by the Court of Appeal:

 

‘It is a striking feature of the evidence supplied by the Trusts to resist the applications of the parents that it contains nothing specific about those they seek to protect. The risk, as we have identified, is of a social media reaction from third parties who might vilify individuals and lead to their harassment or physical peril. The right relied upon is a right to be protected from personal or possibly physical attack with its consequences on personal and private life.

There is also the underlying concern about the parents criticising the professional judgment of those involved and thus damaging their professional reputations.’

 

Reputation

On that latter point, the judgment contains a useful reminder that Article 8 cannot be waved around as a shield against potential damage to reputation – unless that criticism reaches the threshold identified in the Strasbourg caselaw as bringing such damage under the auspices of Article 8….namely that “the publication in question had constituted such a serious interference with his private life as to undermine his personal integrity”. If that threshold is not crossed the remedy is a defamation action.

 

In this case, in the absence of any individualised information, there was ‘no basis to conclude that the parents’ proposed discussion of the events surrounding their children’s cases would reach the required threshold.’

 

Generic class claims and ‘systemic issues’

There was no individualised evidence, the case was presented as a class claim of a ‘generic’ nature.

 

Given that there was no evidence of any actual harm or harassment to date, and after a review of the coverage of the cases to date, the continuation of the orders was not justified, even if it had been justified at the outset – the Article 8 rights as at the date of the appellate decision carried limited weight, whilst the rights of the parents had real force.

 

Dealing with the issues around potential systemic impact – the Court of Appeal took a principled approach, reminding itself that higher courts had previously dealt with the issue:

 

‘The effect of the decision in these cases to continue the indefinite injunctions against the world has, in effect, created a generic class of anonymisation which endures after the end of proceedings and which is divorced from the individual circumstances of the cases or the individuals involved.

In analogous circumstances the House of Lords in Re S at [20] emphatically held that it is not for the courts “except in the most compelling circumstances” to create new exceptions to the principles of open justice’

 

That refers to the passage in Re S where Lord Steyn said this:

 

‘Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by process of analogy, except in the most compelling circumstances, further exceptions to the principles of open justice.’

 

So, said the Court of Appeal, ‘In recognising that the court might do so in exceptional circumstances Lord Steyn recognised that the court would have jurisdiction, but that it should refrain from exercising that jurisdiction; and in that sense had no power to do so.’

 

The Court of Appeal is not throwing the baby out with the bath water here:

 

‘The courts will be astute to protect from harm individuals caught up in litigation when it is appropriate to do so. In appropriate circumstances that protection will include the use of injunctions to mitigate the risk of future harm. The civil and criminal law both provide protection from various aspects of online attack, some preventive and other to provide a remedy for legal wrongs. To that extent nobody is obliged simply to ‘put up with’ abuse.’

 

‘However’ said the Lord Burnett,

 

the courts cannot shut down legitimate debate save when the rights of those affected by that debate, or put differently, the adverse consequences, are of such strength as to outweigh the right to free expression…

No Strasbourg authority was cited … to support the proposition that in Convention terms a right to freedom of expression could be curtailed because of the sort of systemic concerns identified in the evidence and submissions before the President and us….The core concerns advanced before the President were that naming health care professionals might undermine morale, make it more difficult to recruit into the relevant speciality and increase pressure on staff and hospitals. We are aware of no Strasbourg case which has come close to allowing concerns about morale, recruitment or general well-being of health staff to provide a justification for curtailing the right to free expression about individual experiences whilst being cared for, or on matters of general public interest. It would be a strong thing for public debate to be curtailed in these circumstances and, in line with established domestic authority … the domestic courts should not run ahead of Strasbourg in finding a principle in the Convention which has not emerged in Strasbourg.’

 

Covering all bases, the court concluded that even if these matters had fallen to considered in the balance, they were not capable of justifying interference with the Article 10 rights of the parents.

 

Jurisdiction

The final point of broader relevance is this:

There was a difficult technical issue about jurisdiction raised in Abbasi at first instance, and it also featured on the appeal – the issue centring around what power the court had to make the orders, to continue the orders or to interfere with them. It’s not necessary to wade through the arguments put forward, only to note that the Court of Appeal resolved the issues by stating emphatically that the jurisdiction to make RROs in end-of-life cases was well established and fell under the Parens Patriae inherent jurisdiction of the court, and the court’s powers and duties under the HRA 1998 – and was not dependent on the specifics of the rules of court.

 

The court also concluded that,

 

‘There is, moreover, no need for distinct causes of action to be identified to enable the court to make appropriate orders, including RROs…the Convention rights of those affected by the proceedings must be considered and, seized of the proceedings, the court may make such orders as are just and convenient under the inherent jurisdiction and section 37 of the Senior Courts Act 1981 . In particular, it may make such orders as it considers necessary to protect the integrity of the proceedings themselves and the administration of justice…

Furthermore, the High Court had jurisdiction to entertain an application to set aside the RROs made earlier, not only by virtue of the explicit terms of the orders but also, as in the BBC case, on the basis of an application from a person with a proper interest founded on a change in circumstances. ’

 

So, no difficulty with the High Court making RROs in the context of existing family proceedings where appropriate, even if there would have been no freestanding cause of action in the absence of those proceedings. Nor is there any difficulty with the High Court being asked by an interested party to review such orders.

 

Conclusion

 

As we consider the response of the Court of Appeal to the somewhat impassioned judgment at first instance, I note that in rejecting the applications, the President had stressed that,

‘all of the authoritative material relied upon [relating to class anonymity] emanated from Sir James Munby sitting at first instance, or in guidance as President. No authority has been produced to indicate that the approach taken in this line of cases has either been endorsed by the Court of Appeal or followed by other judges of the Division.’

 

By this judgment, the Court of Appeal has provided the endorsement of the approach in Ward that was said to be lacking. All in all, a helpful judgment which clarifies (or reaffirms) a number of points from an open justice perspective – as long as it isn’t appealed to the Supreme Court!

 

Aspirations for Legal Blogging in 2023

I’m starting out with a modest and hopefully achievable goal :

1 Do SOME legal blogging. Not necessarily a lot. Just SOME

(By which I mean attending court and observing hearings as a ‘legal blogger’ ie a lawyer attending in a quasi journalistic role, rather than simply any old person who blathers on about legal related stuff online)

It’s so super hard to find the time to do this. Neither experience nor a strong sense of the potential benefit of doing legal blogging make it easy to squeeze a day out of my overloaded diary to do unpaid work miles away where everyone pulls faces at you when they think you aren’t looking. Plus, well, there has been a lot going on around here lately, and I don’t think life is about to get any less pressurised. So…achieving ANY legal blogging in 2023 will be a victory.

2 Try and identify and write about cases that enable me to write about particular areas of interest

This is tricky because the court lists are frankly, useless. Not only do they give me zero information about what a case or hearing is about, they aren’t published until the afternoon before the hearing. It occurred to me yesterday whilst pondering the new pilot that where I’d really like to be a fly on the wall is cases involving a QLR (qualified legal representative). These are cases where the new statutory prohibition on cross examination in person created by the Domestic Abuse Act 2021 will apply, and where an unrepresented party will have questions asked on their behalf by a QLR (but don’t be misled by the ‘R’ part of that acronym because they aren’t the representative of the party). Any day now these cases will suddenly start coming through the pipeline at high volume. I have some predictions (which I will keep to myself for now, because they might be wrong) about how smoothly this will all work, and about the potential challenges for all involved in case managing such cases, in drawing the boundaries of what a QLR is and is not / can and cannot do, and in achieving fairness. The point is, I’d like to see it in practice. Because how this works is really important. And we all need to learn from our collective mistakes or at any rate from experience. And because people (litigants) need to know what to expect.

I don’t just want to see the questioning. I want to see the ground rules hearing, the PTR. I want to look at the process.

The question is how do I identify a case involving a QLR on a day when I am actually available to spend in court legal blogging? Tricky. If I had nothing better to do I’d just turn up daily and watch as many cases as I could until one turned up. But I don’t and that won’t work.

I could attend on a particular day and ask court staff to point me to anything in the list involving a QLR. Even if they know which cases involve a QLR as opposed to a ‘normal’ lawyer, I’m not entirely sure they would tell me. I could indicate to the local judiciary that I hope to attend on a particular day and seek assistance in identifying suitable cases. Maybe…

I could ask QLRs to let me know if they have been appointed and to tell me their hearing dates. A coincidentally helpful quirk of the QLR scheme is that a QLR is NOT a legal representative with lawyer-client duties in the ordinary sense, so actually I think there would be fewer barriers to a QLR letting me know the bare fact of their instruction and the date and time of their GRH and FF hearing / trial than usual. I would not alert the media to a hearing unless my client consents, though I think views do vary on this.

At the moment I think these hearings are probably few and far between – but they are starting to filter through. I met an advocate this week whose clerks had just had a call from the court to establish her availability for a hearing, and I have certainly had a couple of post July cases cross my desk, albeit that they have mostly not yet reached the stage of listing fact findings / trials of evidence.

Of course, there is nothing to stop a party notifying me if their case involves a QLR, should they be happy for a legal blogger to attend their hearing, and there is some information on The Transparency Project’s legal bloggers page about what can and can’t be shared with legal bloggers about children cases (in cases under the new pilot it will be possible to share more information, but in other cases the information that shared should be limited to the basic nature of the dispute (i.e. a summary in a sentence or two), the date, time, duration, type and location of the hearing. Contact details can be found at www.transparencyproject.org.uk/legalbloggers.

Goal number 2 is, of course, entirely pointless if I can’t make goal number 1 a reality…but I’ll do my best. If anyone reading this blog in whatever capacity can assist in pointing me in the right direction I’d be very grateful. I make no promises as to whether I will attend or what I will write, but I will do my best to come, and do my best to write a fair and accurate account incorporating legally informed observations.

3 Get other people legal blogging

I know. Number 1 isn’t selling it really, is it? But it really is worth doing, even if you aren’t terribly enthused about the public benefit of the exercise. As my mother would say (albeit not of legal blogging) it’ll do you good. Much like a crisp winter’s walk you were dragged out on but which you returned back from invigorated and red cheeked, you really will feel better from it and you will have seen all sorts of interesting things in the hedgerows along the way.

This one seems to be starting promisingly. The Transparency Project are running online training for potential legal bloggers on 2 Feb, to coincide with the launch of the new Reporting Pilot (running in Cardiff, Leeds and Carlisle from 30 January in children cases, where the presumption against reporting will be reversed and journalists and bloggers will be able to report anonymously in most cases – details here). Lawyers who think they *might* want to give it a go can come along and find out more by emailing me at trustees@transparencyproject.org.uk. Quite a few have signed up already. It’s an hour of your life you won’t get back if you think it sounds awful, but why not stick it on your CPD plan and come along?

You can either undertake legal blogging at one of the pilot courts (in which case you will not need to make any application for permission to report), or you can do the same at a court near you (in a non-pilot court you will still have to apply for permission to report at the end of the hearing, but this is not terribly difficult, and in my experience is usually successful).

 

There we have it then. A short legal blog (in the general sense) about legal blogging (in the more particular sense). I suppose that, were it not for the fact I didn’t think of them till it is now officially too late to even say HNY I would call them New Year’s Resolutions. Probably just as well I haven’t called them that because I always break my New Year’s Resolutions.