Transparent with our hands behind our backs

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?

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6 thoughts on “Transparent with our hands behind our backs

  1. I do think that some campaigners do get confused between anonymity and secrecy/transparency. There is certainly a need for more family law judgments to be publicly available; it is necessary that the public can see how (and perhaps more importantly, why) decisions are made in the family courts. However, by the very nature of the issues that family courts (and indeed the Court of Protection) deal with, anonymity will often be important an essential in those cases.

  2. Booker is generally barking up the wrong tree, except in the move for more transparency.

    That there are sites and journalists with unreliable information and are breaking the rules on privacy, is hardly original.

    They can be dealt with relatively easily if the Courts have a mind to – They have done so on plenty of occasions.

    Whether the culprits are family or so-called McKenzie Friends or lawyers or journalists or MP’s – The sanctions are there.

    Lawyers are regularly hit with Costs and the fact that this time there happens to be McKenzie Friends on the end of it is hardly unexpected, particularly in a Judicial Review.

    However, it is a little rich to tie it all in with the recent report by the legal watchdog giving the green light to McKenzie Friends.

    There is a lot of unwarranted hysteria around at the moment in the some quarters because the Legal Watchdog, the Legal Services Consumer Panel recognises after investigation the benefit of good Fee-Charging McKenzie Friends in allowing people to access justice.

    As it happens many McKenzie Friends have insurance but don’t let that get in the way of a good tale.

    Plus the Practice Direction provides wholly sufficient guidance for Courts should a McKenzie Friend be troublesome.

    There are good and bad lawyers as there are good and bad Mckenzie Friends, the safeguards are there to be used to support best practice in the Courts, hopefully Judges will continue to use it.

    Regulation would make no difference whatsoever, the privacy laws and Practice Direction are far more effective, if used by the Courts against all miscreants of whatever persuasion.

    • I’ve never met a mckenzie with insurance, but if you say there are some I don’t have any reason to doubt you. However good they are the risks are higher and the protection much more limited if it all goes wrong. I agree that there are theoretical sanctions for poor McKenzies, but in practice not so much. And it is small comfort after the event for the LiP who is affected. I accept that the same point applies to litigants whose lawyers have messed up, but I think the risk of that happening is lower due to training and regulation and the need to maintain reputation.

  3. Maybe there’s room instead for you to fight the good fight by commenting on the activities of some of your family law industry colleagues? Kids for Cash UK (K4CUK) has evidenced examples of family law solicitors, barristers, and, now, even a judge being regularly involved in care proceedings whilst being simultaneously directors of private limited companies involved in the delivery of commercial services within the local authority care system.

    When confronted, some of the legal professionals have been quite brazen about their involvement, anticipating that their peers’ oversight will protect them from scrutiny. In the case of the judge, K4CUK reported the matter to LJ Munby but heard nothing in response… although we note that the judge has since resigned his directorship.

    For the record, K4CUK was also part of the exposure of the Legal Services Commission’s collusion with bent solicitors in the processing of knowingly fraudulent legal aid claims being made on an industrial scale through the family justice system.

    • David,
      I write what I know about. I don’t have any knowledge or experience of the sorts of potential conflicts of interest that you raise nor am I aware of it being generally a problem.
      I don’t really know what you mean when you refer to LSC collusion and fraudulent legal aid claims – I am pretty sure if such a thing was happening on an “industrial scale” throughout the family justice system it would have been widely covered in the press. I don’t think it has been. I know that the LSC (now LAA) has increased the rigour of its audit processes and paper trails to keep a better grip on public funds over the last few years, as they were previously subject to some criticism from the public accounts committee – which is no doubt one of the reasons why many legal aid lawyers find it so hard to get paid at all, as everything is rejected for minor technical errors on claim forms.

  4. Most legal aid lawyers in family courts advise parents to “go along with social services” even when “forced adoption “is the end product; ie surrender !
    Most Mckenzie friends advise parents to fight every ste of the way and sometimes they are successful.
    That is why most parents are better off without legal aid lawyers !

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