A post from the point of view of those of us who would like to improve the quality of publicly available information and inform debate about family law.
Transparency is progress. Anonymity is necessary.
The case recently reported by Christopher Booker regarding a mother’s failed JR and the wasted costs order against her “McKenzie friends” is an example of some of the difficulties (see earlier blog post).
I (and, I suspect, others) would like to offer an alternative perspective to the slant given in the mainstream press, which is understandably causing disquiet. But we can’t.
And the reason we can’t is this.
Blogging lawyers appreciate the reasons that anonymity is necessary. They appreciate the nuances of the rules on privacy and the sanctions that are available if not complied with. For blogging lawyers these consequences could be career ending. For the children at the centre of these cases the consequences could be life changing, placement ending. So blogging lawyers stick to the rules.
Campaigning McKenzie friends, MPs and journalists are not so constrained. Sometimes they name, sometimes they misstate, forget or “misunderstand” – sometimes they just apply lashings of hyperbole with a conspiracy theory cherry on top. And I’m sorry to say that they rarely give a complete and balanced account (I’ve no doubt not all fall into this category but sadly this represents my broad and regular experience). I’m genuinely sorry, because there is a pressing need for many stories to be reported to a wider public audience. A case I was recently involved in which is pretty straightforwardly set out in a concise judgment on BAILII appeared in the mainstream press last week very sloppily misreported. The only available information about it is in that judgment and it is a simple case of not reading it properly and then inaccurately summarising it. I really despair.
The recent Booker story is a particularly poignant case in point. It’s inaccurate. I’m confident this is so. But I am hamstrung, hands tied behind my back (choose the restraint metaphor of your choice). The first hand because it’s reported before a judgment is available on Bailii. And my right hand – because there is a wealth of information on the internet which I could link to which would demonstrate clearly that it is sloppy, wrong, incomplete etc. But I can’t link to it. Because I care about the rules on anonymity.
And so transparency is an unattainable ideal. Some people can and do report what they like, to satisfy their own agenda. Some cannot.
It’s poignant because it appears to be a prime example of the dangers for litigants in person or vulnerable parents of taking advice from unregulated, uninsured, untrained, unqualified “McKenzie friends” or campaigners for justice. And a prime example of the dangers generally of unregulated McKenzie friends with a campaigning agenda to the court process generally. This is a story that needs to be told. The public need better information about these risks, particularly where there is a recent report suggesting that we should embrace (paid for) McKenzies. Some might say policy makers also need better information about these risks but that is for another blog post.
The only solution to this it seems to me is for the family courts to more proactively police the many many wilful examples of the naming of parties to proceedings. Or to lift the anonymity provisions to enable proper and balanced debate. I don’t know how we can hope to achieve that. It might be that the court has permitted the naming of the parent in this case – if that is so it is not known to the legal blogging community. Could there be (for example) a public register of cases where anonymity has been lifted so that citizen journalists can check it? I hope that the second round of transparency reforms that we are expecting soon will grapple with this. I suspect they will not. [edited - duplicate text removed - cut and paste error!]
Because surely balanced public debate is the purpose of transparency and it is a risk with no benefit if it does not achieve that aim?