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.

50 thoughts on “Proto-Manifesto

  1. Jacqui Gilliatt

    Hi Lucy great idea – have had complementary one – will say more tomorrow in email

  2. To make it work for the public, you would have to:

    1. Keep lawyers off the panel
    2. Keep the judiciary off the panel
    3. Keep Social Services off the panel
    4. Keep CAFCASS off the panel
    5. Keep others who make an income from the family courts off the panel

    Use independent persons who have no link to the family courts and Users of the system.

    Then it might have some credibility.

    Otherwise it is more of the same from the point of view of many in the public.

    We already have solicitor, barrister, social services, Cafcass and judiciary organisations telling the great British public how it is from their point of view.

    The great British public no longer for the most part trust professions to monitor or inform about impartially about the effectiveness of their own area – Whether it is politicians, the NHS, Police etc.

    Certainly not lawyers in the closed (often pilloried by their Users and by some within) family court system.

    • Chambers,
      Erm. I think what you are describing is something entirely different.
      I have thought a lot about your independence point, because I know that it will be said lawyers are not independent.
      But I think we have to do this incrementally and independence or at least impartiality can be achieved through other mechanisms.
      I’m proposing that the panel is made up of lawyers because they know the law in this area – this means they can write stuff that is accurate and makes sense AND that they are unlikely to do a whoopsy by reporting something they shouldn’t – both because they know the law about privacy AND because they really really don’t want to be in contempt of court / struck off etc. They also understand court process so won’t disrupt proceedings.
      So I think the legal qualification / practising certificate is a safeguard which enables the court to say (potentially) that this is a class of person who should be allowed access to courts as a default position. Just like reporters, who are by virtue of their press card “deemed” to be a similar class of person – they don’t want to lose their jobs, they have lawyers back at the paper who can make sure they don’t do a whoopsy.
      I think the independence issue is dealt with through a clear and transparent governing document / policy statement, the bare bones of which I’ve laid out above. It won’t be all “what a wonderful court system” (it certainly won’t if I’m writing for it). It will be range of views and types of cases.
      There are some suggestions in comments I’m about to moderate that legal academics could be part of the panel too. I think that’s a good idea.
      It might be that in time once the organisation is formed it could recruit and train and mentor / monitor non lawyers – but I don’t think the scheme could work that way from the start because it would never gain the approval of the President / FR Rule cttee that all panel members should be allowed in by default – and an application would have to be made at the start of every hearing.
      The committee should no doubt have people who are not lawyers on it to ensure that a range of views are represented.

      • “””””””””””””I’m proposing that the panel is made up of lawyers because they know the law in this area – this means they can write stuff that is accurate and makes sense AND that they are unlikely to do a whoopsy by reporting something they shouldn’t – both because they know the law about privacy AND because they really really don’t want to be in contempt of court / struck off etc. They also understand court process so won’t disrupt proceedings.”””””””””

        Perhaps just a little condescending!

        There are plenty of intelligent, balanced and measured individuals who could manage to master these basics (probably in 15 minutes), and their commentary could be proof read by a clued in family lawyer anyway for ‘stupid non-lawyer whoopsies’.

        We already have the Judges providing their obiter dictum/ratio decidendi plus lawyer case summaries when there is an interesting judgment. Plus lawyer blogs such as the excellent ‘suesspiciousminds’.

        Sadly for family lawyers and others within the system; relatively few outside of this circle are going to be convinced that the system is working by ‘more’ lawyers and legal academics reinforcing why Judges and the system got it right, and the Users are just stupid, ignorant, angry and emotionally illiterate ******* who just need to be put right (using other less objectionable words of course with a lovely patronising smile).

        As for “”””emphatically NOT be a PR vehicle for the family justice system nor a mechanism through which to simply counter criticisms of the system””””

        Of course it is a PR vehicle, nobody on the panel is going to say the Judge was completely off the mark or poor or bonkers. Nobody on the panel is going to say the system is not working for Users and particularly children – Except when they can use the opportunity to decry the lack of legal aid or other lack of resources to excuse inadequate performance.

        Unless it is to be more than just part of the vast family law system ‘defence/promotion’ lobby, the panel needs to be wholly independent of the system.

        Now; I’m going much further than you of course by suggesting that what is needed is something along the lines of the Police IPCC, NHS CQC, school Ofsted, energy Ofgem; financial (FCA) etc. Who could also provide the bodies for this panel you are proposing.

        Even using the Legal Services Consumer Panel would be a move in the right direction.

        However well intentioned; what you propose is another protective shield for the system, manned by those within the system. It aint gonna work for Users or the public.

        For any kind of confidence in the family law system to be regained or established; it needs independents; not those from within. A real effort at providing transparency by not having the system being monitored by its own.

        Sadly all the great British public have at the moment is the likes of Christopher Booker and the other extreme of those working within the system. Or with your proposal ‘lawyer commentators?’.

        Who would you believe as an interested outsider and member of the public? An independent journalist or more commentary from lawyers?

        Good luck!

      • I support the idea of a panel that could promote transparency, understanding and ultimately lead to changes to the family law system .Family proceedings is an emotive area of law where all involved in a particular case sort of co – exist in separate boxes, side by side , each have a different need a different aim and a different point of view . I think to change the family law system for the better , a panel of all those involved in family proceedings needs to be formed.

        I think such a panel would benefit and work well if it included a lawyer, a mother , a father, a social worker a cafcass officer,a judge, a person from the NSPCC and a Fraser competent LAC child!


        The panel could consider reforms, poignant cases , access to justice, the care system as a whole and provide a multi dimensional view from all angles on how things work in practise and the impact on all , especially the child.

        A lawyer can explain the legalities, the social worker the assessment process and how they came to their end plan and why , a mother and a father could voice whether they agree with the plan / or how such a plan could have been avoided from a parents point of view , a cafcass officer can say how the plan fits with a promotion of the childs welfare and NSPCC can talk about the impact of such plans on the child long-term and a looked after child ….who can tell how it really is!

        A report could be produced of all the points and no doubt arguments raised and suggest changes to consider?

        I am qualified Children’s Panel accredited solicitor, who is without work locally as a solicitor, so I have just decided to stop practising and provide support to litigants in person as a paid McKenzie Friend. The biggest barrier to parents and families keeping their children within the family is often the simple facts of 1) A parent does not recognise they cannot provide good enough parenting, so do not access resources ( even if they exist) to raise the level of their parenting. 2) Parents naively do NOT give the social worker the names of family members to be assessed for care of their child if they cannot – then are stunned when their children are placed outside the family. 3) Parents have little understanding of the impact of DV on a child , especially when a child ‘only’ observes it ( time and time again I hear we hit each other but not the child, from parents).

        The papers recently covered a case where a child ended up being placed with her grandparents, after a hard fight. They presented the one sided view of social services being baby snatchers and overlooked the fact that the mother involved was mentally unwell and would not disclose names of family members, plus the grandparents were withdrawn from proceedings as parties, due to a misunderstanding between them and their lawyer none of this was social services fault! BUT as usual they ended up the scapegoats! Which helps no one as the actual issue of HOW CAN A SOCIAL WORKER ASSESS PERSONS THEY DO NOT KNOW ABOUT was overlooked.

        Sorry I waffled as usual but I am very passionate that there needs to be more understanding to enable change!

        • Thanks Sue. Do you have in mind that the parents and NSPCC bod and the others you mention would go to court and report cases? I’m not sure about that. If you are suggesting that whatever committee running the organisation should include representation from those groups to ensure the correct direction of travel and balance of coverage – I agree that would be sensible, at least after it’s up and running.
          I’ve read the article you are referring to – but I don’t think its sensible to get into a discussion about that case because it appears to name the child, the carers and otherwise gives quite a lot of identifying information about mother and child. I don’t know what the position is with reporting restrictions on that case.

  3. Jerry Lonsdale

    Of Late, I feel that the confidence of Litigants In Person not just in Family law but more generally has gone, many LIP’s are facing an huge mountain to climb with the reports, surveys et al about the litigation process being one of delays, problems and the snails pace “caused” by them, Litigants in Person are at the moment painted very dimly, just reading the most recent report from Magistrates shows this, that is not helpful if the whole picture is not sought, a snapshot of one issue is made into such that then the reporters through the media/websites and blogs mislead on the reporting Law Gazette is just one example of that happening by the report published by the LSCP.

    I am blessed with a vast experience of the court process in may types of litigation and having travelled like most legals through many corners of the country, I do see very much a varied and differencing of local level legislations and procedures, in which, some courts may address matters one way and very well however across the next county the processes are very different, the confusion that causes to Litigants is overwhelming even down to the way in which clerks can be approached varies wildly.

    On this matter at hand, I feel the negative outcomes from family courts is 50/50 split, 50% of the many negatives litigants feel they had are through their own personal experience and the other 50% is from speaking to others who have or are facing the same problems, the reporting of cases in the media can only give a snapshot and for obvious reasons the media cannot report the true nature of the beast, for Litigants, parents and other family members that have approached the media to try and report their experiences many are faced with a closed door approach, the media feel the reporting of family cases is a no go area and red lights flash, obviously, there is a lot more work that has to go in to reporting family cases, there are, as we know only a handful of Media reporters who report on Family Law, I would say in some instances not very well either.

    I came across a story yesterday that was reported at local level the facts of the case however when it was picked upon by a national red top the reporting had become very distorted and painted a very inaccurate picture.

    The wrongful reporting does nothing to help the need for transparency, if we look back at the Statutory Instruments of 2009 regarding this matter that were heavily campaigned for by Sue Reid and a few other reporters, those SI’s that were produced by Sir Mark Potter, P and the former Secretary of State for Justice Jack Straw, (oh dear, how long have I been doing this, hmmm) , specifically, part 11 of the provisions were to address the communication of information from proceedings relating to Children,
    debate about transparency was top of the agenda back then, the SI’s for FPR amendments (2) revolved around the disclosure of specific documentation to various parties, more significantly was the reins for the media were slacked a little, it was then permitted for the media who were “Press Passed” to attend Family Law Proceedings, sadly though, that very very rarely happened, I think in all the time I have been dealing with the media in reporting of cases I am involved in the BBC at local level were the only ones I could say had been involved in one case from the start to the finish of the proceedings, the reason or lack of this happening is the length of time it took cases to reach a conclusion which If I remember rightly cases took some 2 to 3 years or even longer to conclude, the Media only wanted to know the final outcome, not the ins and outs that led to the final decision,

    One would say that I would fully support the reporting of Family cases by the media if the reporting was from the outset of the proceedings and not mid way or final, this is where many troubles in the reporting of cases stem from, a lack of insight by the reporters as well doesn’t help,

    It does seem quite sad that five years on from the “Need” for transparency it is still in debate.

    Which ever way in which the decision is made in this, I do like the approach you have taken Lucy, however, like with most things there is always those who would be sat around the table in complete disagreement, I am sure those are born to just simply disagree, hey ho, it is a modern world after all, well, fairly modern

    SI 857 of 2009 can be found here, specifically for this topic of debate

  4. I am thinking genius!
    A couple of initial thoughts:
    It would be useful for the commentary pieces to draw themes together as well. I agree that access to run of the mill cases may help to increase confidence in the system and address press fed concerns about secret courts but I’m not sure how much practical use they would be to a LiP. The commentary would be essential to help them make sense of how it fits together. It’s not as if anyone’s written a book to help them out or anything 😉
    Is there any reason why family law academics couldn’t participate as well? Esp if they are qualified as practitioners, even if non-practising.
    I fear it’s difficult to see government funding it though. It’s not going to get more people to mediation after all…
    Really interesting idea – I will let it percolate and see if anything useful results…

    • Yes I think themes are a good idea.
      I’m not sure that I really intend run of the mill cases to be of “practical use” to LiPs in any concrete sense. I would hope that they would be things that those who are and are not involved in the system might read and that they might flick through some to get a feel for how things work on a day to day level. I would hope that some of the nuts and bolts procedure that normally doesn’t get into law reports might go into some of these.
      I don’t know why I didn’t think of academics – yes I think that would be a great idea.
      Like you I don’t see government funding being magically available….Ho hum.

  5. You may soon have Govt policy officers knocking at the door. As a mediator, I love the idea of impartiality and neutrality of reportage.

    • Well I don’t think they’ll be knocking once its costed! And anyway, would it be better funded by something NOT a commercial entity and NOT an arm of the state???

  6. I think that it is a good idea – and am willing to help with it however I can. I do end up reading most of the judgments that come out (even the pure transparency ones) – the column I did for Family Law this week was a quick statistical look at the ones published since April 22nd “Launch Day” and part of that was saying that if nobody is reading these judgments we’re missing an opportunity to learn from them.

  7. Sarah Phillimore

    I will sign up. Anything is worth a shot rather than leaving the field to the likes of Booker et al.

  8. Jerry Lonsdale

    I dunno, pfftt! I left a response and its gone, it had it all, links to legislation, jokey bits, what else, yeah, the usual ol’ drivel from me, *off to wallow in self pity* Meh!!

    • You did. I have just moderated it – sorry but the site broke last night, and been in court all day. Just done all the comments now!

  9. Jerry Lonsdale

    I know Lucy, you mentioned last night, blame him in doors, Mr Sues’ I think that unless folks read blogs like Lucy’s and your own people do not know the judgments exist, it is fine that the Judgments and case analysis are posted on Bailii, Family Law week and others, those reporting on the cases tend to be and are from a legal background, Lucy’s idea I feel will address that quite considerably in that there will be essentially a “Hub” where one and all can see the whole “story” from one place, in a simplistic way and without any bias

  10. Nick Langford

    Hi Lucy, can I say from the off that I think your idea is basically a good one, with considerable potential? My good wife, however, would like clearer guidance on what you mean by the “public”, as in “public confidence” and observes that in a Facebook thread she came across yesterday, some people weren’t even aware we had a Ministry of Justice. If by “public” we understand “litigant” that may make it easier to target the appropriate information. I also agree that the information a litigant (especially one representing himself) has before entering court can make a significant difference to outcomes. The litigant who demands recognition of the rights he believes are being abused is unlikely to have an easy ride.

    But Chambers is absolutely right, a panel made up entirely of members of one of the least trusted professions is unlikely to restore public confidence in their own profession – it will require a panel made up of individuals from a variety of backgrounds and with different interests in the family justice system, including end users. And for the record, I trust academics even less; the OXFLAP lot, Trinder and co., are a major part of the problem. Without trust in the Panel there is no merit in the idea, and that trust must come from litigants – it’s no use if the lawyers in the panel are trusted by their fellow lawyers.

    After trust, funding will be a major challenge, and again, it will be easier to secure funding if the scheme is trusted and has more widely representative membership. I can’t help observing, however, that Bailii, which is widely trusted and respected, struggles with funding, and perhaps our priority should be ensuring that Bailii survives, rather than seeking funding for a separate venture. Having said that, could this be incorporated in some way into Bailii?

    The major flaw in the idea, however, may not have occurred to you. I am a member of the public, and the family justice system has completely lost my confidence. That is not the result of misinformation or the lack of good information; quite the reverse. It is entirely possible, therefore, that increasing the public’s access to good, accurate, unbiased information about the system could further undermine trust.

    • Hi Nick,
      I mean the public in general, although no doubt litigants are likely to be most interested.
      I see that it would be easier to secure confidence in the panel if it were a broader base than just lawyers, but I think that is really difficult to achieve – at least at the off – for all the reasons I have set out. Which is why I favour other mechanisms to ensure impartiality / independence etc – whatever you want to call it. I don’t doubt there will be (is) skepticism about the ability of lawyers to be critical of the system / impartial about it, and I don’t fail to understand why that skepticism would exist – but I think we will have to prove that fear wrong by DOING it. And if the scheme is a success we can consider broadening it.

      I also get your point about public confidence – well, if it exposes the failings and people get upset about that so much the better. Maybe the system will improve. But at the moment I think that whilst there is lots about which we can criticise the system, many of the criticisms “out there” are the wrong ones, by which I mean a lot of complaint is made about things which aren’t actually a fair representation of what happens. So at least if the public are going to lack confidence they’ll lack it for the right reasons! As you know I have lots of criticisms of the system, some of which match with yours, some of which don’t – but that doesn’t mean that every criticism lobbed at it is fair or right. My main aim is good information really. Then whatever view the public take will be a legitimate one.

      • Reading that back it sort of sounds like i think the system is completely broken. I don’t actually, but I do think it’s creaking a lot and is in danger of breaking, and that there are always better ways to do things. And of course there are always individual failures which should cause us to challenge our ideas of how things should be done and whether the old ways are really the best ways.

      • AND. I suppose I want to say in response generally to comments on this thread that I don’t foresee this a total cure for anything, just a piece of the jigsaw – an improvement rather than a fix. It doesn’t stop others doing other things, it doesn’t stop the press reporting more, it doesn’t stop individuals seeking permission to attend hearings or setting up website to help explain things to the public etc etc. I envisage it complementing other material / sources.

  11. I’m with Chambers on this one. To suggest that the problem is not the system, but the perception of the system by the public and that what we need is to draw a panel of impartial people from the Family Law Industry to educate the public is frankly ludicrous.

    What you could do with is more documentaries following cases from start to finish, seeing exactly how the parties are treated, the delays, how the children grow up while the poor excluded parent tries to re-establish a relationship, the allegations and evidence that are thrown around and believed, etc., etc.

    We don’t need lawyers further interpretting the judgements of the Family Courts in an effort to educate the public into understanding that wide scale child abuse is not going on behind closed doors and the Family Justice System, together with all those profiting from it are doing a wonderful job.

    • Brian,
      Who’s suggesting the problem is perception not the system? You’ve set up a false dichotomy there. Why can’t it be a bit of both? For sure there is more than one problem.
      More documentaries would be a good idea, although you seem to have written a plot already, so maybe you are talking about drama not doc.
      I have to say I think you are wilfully misunderstanding what is being said here. I have said in terms that as I conceive of it this would be a project that attempts to show a range of views and a range of cases.
      By the way, doctors, nurses, policemen, teachers all “profit” as you call it from doing their jobs. Judges, lawyers and journalists are no different than any other worker in that regard.

  12. Hi Lucy, really interesting idea! I wonder if it’s something that potentially law students might be able to help out with, perhaps summarising judgments or something? I’m not sure if they could attend court because they wouldn’t have the network of regulation and safeguards that you describe, but I think that it might be something that a law student might be interested in getting involved in, with the right supervision etc etc?

    • Yes Lucy, I think maybe law students could contribute, but I think a careful structure would need to be in place. As you say, attending court is more difficult. But, for example, identifying, comparing explaining and analysing a range of publicly available material about a single case might be something a law student could do – press reports compared with judgments or other material, that sort of thing.

  13. Julie Doughty

    Interesting idea and one worth exploring. I just read this case on BAILII where the judge requests publicity of this case and others which end well, and he names and praises the social professionals involved. (Family are praised but not named of course.) I only noticed it via Marlyn Stowe on twitter, which may say something about my not keeping up, but i fear is probably more because it hasn’t had any publicity.

    • No I hadn’t read that one either – it is precisely the sort of case which does get forgotten and which will never reach the public eye through commercial media. And it isn’t terribly interesting to lawyers either – so we have not noticed as we are desperately trying to read the ones which are starred as *essential reading* before getting caught out at court. This sort of case is not top of our priority list, but it should be out there – and being hidden away on Bailii (much as I think Bailii is great) is not “out there”.

  14. Simple as usual :- All Courts, especially Family courts and the Court of Protection should be open to the public ,(except where genuine questions of national security are involved.)There should be no gagging orders and no orders restricting indirect contact between children and parents orclose relatives.No children taken from non criminal parents.
    Easy to enforce but alas those who live off the present system will defend it desparately if need be……..

    • National security? Seriously? That is the single basis upon which you would exclude the public?
      What about privacy Ian? What about privacy? Someone sexually abused you and the hearing in which it is all raked over, where you have to give evidence – should be public? You’re accused of some hideous child abuse of which you are not guilty – and it should be public? You are a teenager with self harm issues and are vulnerable to exploitation – and it should be public?

  15. Familoo haven’t you read the papers lately? Do the names Jimmy Saville and Cyril Smith ring even the teeniest little bell? Did you ever learn as a student that justice must not only be done but be seen to be done? Or do you think that privacy should only apply when social workers have been involved and might be revealed for the ruthless child and baby snatchers that so many of them are?

    • Again Ian, I think there is an important difference between privacy and secrecy. I don’t think that there should be secrecy but I do think people are entitled to a bit of privacy. I understand full well that justice must be seen to be done, and I think it can be and should be done without laying all the most private and hurtful things open to the public. That doesn’t mean that matters shouldn’t be reported or social workers anonymised – but the families and children involved don’t need to be named and the public don’t need to be sat there with their popcorn whilst people’s lives are picked over.

  16. Familoo ,Sir James Munby recently said that parents who felt unjustly treated when their children are taken should be free to protest openly.(Presumably without being jailed for doing so)
    I agree, Do you ??

    • I do. He in fact said they should be free to protest providing the children were not identified or put at risk. I agree with that also. Do you?
      Do you also accept that many parents will not want to expose themselves to publicity in this way and that in some cases one person will want to protest whilst another will feel violated by that? The court must balance article 10 against article 8 rights – and must also ensure fair trial under art 6.

  17. Familoo,I agree but I also believe that parents should be allowed to identify themselves as they already do in criminal cases.
    I advise by phone in more than 1000 cases per year,and have been doing so for more than 10 years. I have yet to come across a single parent who was worried about publicity in spite of frequent stern admonishments from social workers that they must not discuss their case with anybody except their own lawyers.
    On the contrary nearly every parent I speak to is outraged and indignant that their children have been taken from them and beg me to get maximum publicity for the injustice they claim to have suffered !The captured children when aged about 10+ also beg me to get their story in the newspapers via letters smuggled out from care in the hope that they can go home.
    Yes some criminal parents are glad to be shot of their children and vice versa but they just do not seem to be the ones that contact me .
    Now that judgements are on line those who can understand them can see how perverse they are even if one believes the social workers and disbelieves the parents.Forced adoption can never be justified in any case.

    • Ian, I don’t imagine for one minute that the cohort of care parents that contact you are representative of the “average” parent (whatever that is). Many of the cases I deal with are intensely private to the families involved. You seem to equate those families who don’t want publicity with those who are “glad to be shot of their children”, but again I think that is unfair and has no basis in reality. Personally I struggle to recall a case where a parent, however heinous their crimes or abusive their parenting was glad to have lost their children. Even very bad parents love their children and want to be good parents.
      By the way what about the judgment that Julie Doughty refers to a few comments back – was that one perverse? Just like your client base, the cases reported in the press are just not representative of what happens in the majority of cases. The picture is a lot more complex and diverse.

  18. Familoo; I never equated anybody ! In fact I said that there must be SOME parents who want to get rid of their children but that I had never met any ! Not much equating there…….
    Parents ;like rape victims should perhaps have anonymity if they choose it, but should be free to tell their stories to the media and scream to the skies in protest if they believe their children have been unjustly snatched;
    It is inhumane and inexcusable to take a baby at birth from a non criminal mother and then gag her so that she goes to jail if she protests under her own name.
    Every parent who has contacted me (must be 15,000 at least over the last 10 years) has wanted to protest with NO EXCEPTIONS !Nearly all have been warned to keep silent or face dire consequences !
    Nice to see one case (quoted by Julie Doughty) where a baby has been restored though it was unclear why it was lifted in the first place and no doubt sufficient grovelling to social workers etc in this case worked the oracle !

  19. On the face of it this is a really good idea, something which will help the public understand that the system does work and not just feed on the stories the press are interested in – which are usually negative.

    My wife is a reporter for a newspaper and has done her fair share of court reporting, I showed her this and her main worry is that there will not be the audience for this kind of publication/avenue.

    The reason the press chooses the stories they do is because they are interesting enough (read: controversial/scandalous) to sell copies. As you rightly point out, the press is a corporate machine designed to make a profit, not educate the masses on the intricacies of family law or other law.

    I think this is genuinely a brilliant idea and, with enough lawyers and bloggers signed up, could be a real coup for the way the family courts are perceived in public.

  20. To return to Lucy’s idea;The concept is basically very sound in my opinion PROVIDING that both adversarial parties have their points of view represented.The problem with judgements on line is of course 1:- The public do not know how to find them 2:- They would rarely understand them even if the did find them (sometimes their lordships’ philisophical ruminations completely baffle me !) 3:-The point of view of the judge is that of the winning side (nearly always the LA in public law cases).
    To gain public confidence the lawyers responsible for the reporting would have to use language readily understood by readers of the Sun or Daily Mirror .They would be duty bound to provide the arguments put forward by both sides in turn followed by the reasons why one side won and the other lost.
    On this basis such a site readily available and understandable by the public would be both popular and successful !

  21. I think your idea is a good one in principle, Lucy, and on that basis perhaps you could answer the question that Christopher Booker has just posed in his latest piece about the Family Courts.

    • I presume you mean this rather sweeping question? “The real mystery is why the courts and social workers think they have the legal authority to act in this utterly inhuman way. If any lawyer can tell me precisely which law allows them thus to trample on one of the deepest and most natural of human instincts, I would be very grateful.” It is of course an impossible question to answer unless you accept all the preceding propositions about the manner in which the family court acts or has acted in specific cases. Which I’m afraid I don’t. There is plainly much more than meets the eye to most of what Booker reports, and often some…erm…tension between his version of events and that set out in the published judgments of the same case that he never links to. The scenarios he describes where all contact between a child or young adult and their parents or close family members is cut off are rare and are justified and justifiable only on the very specific facts of those cases. The court will not make such an order unless it is to protect the child from some greater harm than would be caused by the prevention of contact. Such steps are sad and painful and difficult, but sometimes it is sadly necessary. The law which permits it is the children act (or the mental capacity act for adults) and the human rights act. None of those acts would permit such draconian steps without the sorts of justification I have described.

  22. Except of course Lucy,that neither the children act nor the human rights act contains any clause that specifically justifies severing contact both direct and indirect between parent and child to such an extent that non criminal and therefore non dangerous parents are jailed for sending a birthday card or waving at their children in the street.No such authority exists.
    The human rights act was designed tp protect families from State intrusion not to protect the State from parents who want to keep in contact with their own children !

    • Of course it doesn’t. It is an act that deals in principles, which are to be applied depending on the unique circumstances of each case. As much as it does not specifically permit these sorts of things neither does it specifically prohibit them. Few of our human rights are absolute rights, and the HRA / ECHR does not prevent states from taking action that interferes with family life where that is necessary and proportionate and for a legitimate aim. The protection of children is a legitimate aim. The real issue is whether the interference is necessary and proportionate – there are clearly divergent views about when we should treat interference as necessary. You would say it is not necessary / justified unless there is a criminal conviction. Others would disagree, including it seems, Parliament.

  23. Judges have limited powers .No UK judge could order you Lucy, to run down Oxford street stark naked,or more mundanely no judge could order you to wear a red hat and a green trouser suit during the whole month of July !
    The only real authority a judge has to forbid all contact between parent and child is a “non molestation order” ;To molest =to intentionally annoy (oxford dictionary)
    That is why a dangerous person can be so barred.A mother who has never been accused of molesting a child or anyone else let alone been convicted cannot logically be said to annoy her child by sending a birthday card or waving in the street and no attempt has been made even to allege this in the many cases I have advised on.No the judges make nonsense of the English language to serve their own ends so that nowadays any mother who reports sexual abuse of a child by the father risks losing contact with that child indefinitely… Yes sometimes it can be a father reporting abuse by the mother but the result is the same. Judges make the laws by interpreting statutes in ways that are often illogical and obviously contrary to the opinions of those who drafted them . It’s a shame……..

    • Look Ian, we’ve had this argument before and it’s very dull.
      A judge couldn’t order me to do those things because it would serve no legitimate aim.
      A judge has a range of other legal bases upon which he can legitimately prevent contact (if teh facts justify it), including but not limited to : s8 Children Act 1989 (PSO), the inherent jurisdiction etc.
      It’s not about annoyance, its about harm. Parents can cause harm to their children even though they love them very much.
      I’m not prepared to dance around having a pointless argument with you again. I’ve said before – the law does allow these things. You just don’t like the law. It is wrong to say these things are unlawful and to mischaracterise the state of the law just because you object to that law.

  24. I do not object to the law re preventing all contact nor do I dislike it .My position is that no such law exists.

  25. […] You may recall my musings on transparency some months ago, here : Proto-Manifesto. […]

  26. […] idea for the project was first set out in a blog post on the Pink Tape Blog : Proto Manifesto. Since then a group of practising and academic lawyers have come together to work out the “what […]

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