Hershman Levy Memorial Lecture – Munby LJ on Transparency

Lord Justice Munby recently delivered the annual Hershman Levy Lecture on the topic of Transparency and the Children Schools and Families Act 2010, in which he referred to my recent article in Family Law, republished here. You can read the lecture here on the Association of Lawyers for Children website (I've downloaded it here: HERSHMAN_LEVY_MEMORIAL_LECTURE_2010, as the link to the ALC website seems not to work all the time).

Washed up and hung out to air in public


Fudge - Stephanie189

Children Schools & Fudge Act 2010?

Further to my previous post on the passing of the Children Schools & Families Act 2010, The Times has published an article about the new provisions which is spot on: it identifies - importantly - that the new law, when it is brought into force, will in fact be more restrictive than the existing privacy rules covering children proceedings. In particular, not only will anonymity rules apply to the children themselves, but they will also apply to anyone involved in the proceedings, apart from professional witnesses.

So much for open justice. The Times says 'a Fudge', I'm inclined to agree.

PS Does anybody know when this is likely to be brought into force?

Open Debate

The FLBA hosted a panel discussion on 'Publicity in Family Proceedings' today. It was moderated by Mr Justice Coleridge, and the panel was comprised of Mrs Justice Eleanor King, Anthony Hayden QC, Joshua Rozenberg and Dr Julia Brophy. It was a really interesting discussion. There was some consensus on a number of points: that greater openness was desirable, that the first round of reforms introducing media access had been a bit of a damp squib and that the proposed reforms contained in the Children, Schools & Families Bill 2009 were an impenetrable mess.

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But it's an enormous and complex topic to cover in an hour, and there was an aspect of this debate that I wish had been explored more thoroughly. Much of the discussion was based on the supposed dichotomy between journalists (reputable) and bloggers (boo, hiss) and the assumption that all things bad are represented by the internet bogeyman. The Bill it seems, will remove (inadvertently perhaps?) the power of the court to permit access to persons other than 'accredited media representatives', which theoretically at least can presently be used to permit access to the responsible blogger without the benefit of a press card. It is of course imperative that whatever the rules permit to be heard, disclosed or published, safeguards should be in place to promote responsible reporting and minimise unbalanced coverage. But, in much the same way that many held misplaced expectations that the press would be a conduit for educating the public at large about the day to day work of the family justice system (is it really a surprise that they don't report a range of cases across the board but select only those with the power to sell papers?), there seems to be a misplaced perception that we can or should draw some bright line between the 'journalists' and 'the bloggers'.

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First: Journalists and bloggers alike publish, via their different media, information for their own purposes. They none of them serve the interests of the family justice system in educating or informing the public: although their interests may coincide from time to time they are not coterminous.

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Second: Much journalism in the so-called 'reputable' press is scandalously unbalanced, sloppy, and sensationalist. A good portion of it is probably in breach of the restrictions on publishing material likely to identify a child. Similarly, an enormous amount of poorly written, inappropriate, biased and frankly crackers material is published by bloggers on the internet on this topic, often by disgruntled litigants or campaigners. The worst blogs are more extreme than the worst newspaper reports, but the worst newspaper reports probably reach far many more pairs of eyes than any single truly dodgy blog. But in each category there are a number of responsible, thorough and professional writers who can be relied on to report in an appropriate way. As Joshua Rozenberg pointed out journalism is not a 'Profession' with a regulatory body. A press card is not necessarily a marker of good quality, and media access rules based on it draw a somewhat arbitrary line. Even Joshua Rozenberg, prize winning legal reporter, was at one point on the wrong side of that line because he was freelance and had no press card. And by way of a further example Charon QC, a notable blawger (law blogger) does have a press card.

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Third: In practice a certain category of individuals who publish via blogs or websites do not consider themselves contrained by the rules in the same way that professional journalists (and their employers) may do. They may post the detail of their own cases, photographs of their children, names, and catalogues of injustice (perceived or real), the names of experts or social workers and the contents of their reports. They either do not know that the rules apply or they do not care. And the sharing of inappropriate information on sites like facebook is now endemic. Whilst I am hugely uncomfortable about some of the material I have found publicly available on the internet, tortured rules trying to prevent what is already happening - and frankly will continue to happen - is a distraction. If there is material published on the internet that is inappropriate or contrary to the rules we should give teeth to the existing prohibitions on such publications and enforce those breaches rather than creating broad a new set of rules which will then go unheeded by the rogue bloggers just like the last set. We are in danger of throwing out the baby with the bath water, because 

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Fourth: The drive to reform in this area has multiple aims - to increase public confidence in the system by way of greater transparency and by educating the public about what happens inside the family courts. The penny seems to be dropping that newspapers aren't going to do this job. Even Camilla Cavendish (self appointed champion of the open courts campaign) appears to have got bored reporting about family courts (nothing since 9 July) And frankly they don't have the reach. The internet is a hotbed of debate about family law, about the court system, about CAFCASS, about social services, lawyers, judges...We can't simply pretend this debate is not happening if we expect to increase public confidence in the system. What we ought to be doing is contributing to and informing these debates, using the internet and the blogosphere rather than consigning it to the naughty corner. If you want to reach the cynics, the confused and the disillusioned put it out there on the net. Mr Justice Coleridge cracked a joke today about lawyers not even knowing how to switch on their computers. We have got to get switched on to this and stop hiding behind our bundles.

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I'm not advocating the disclosure of court reports or documents to either bloggers or 'real' journalists. I'm not advocating access of the public to the courts. We have a responsibility to children - and to families in general - to protect their privacy and their wellbeing (I've posted about this before). And I don't profess to offer an opinion on how we do this in practice - it is a really difficult one to crack. But I do think that the lack of public confidence in our family courts is something we need urgently to tackle, and that we need to be more wide ranging and more creative in our thinking. Dr Brophy proposed that we needed to get more involved in communities. She's right on that, but unfortunately all she could suggest was more Court Open Days, which are positive but are simply not going to have any significant impact on the scale of the problem.

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One further point. I think its unhelpful to talk about 'PR' as one of the panellists did today. This is not about opening up the courts in order to demonstrate that the family courts are great. It's not just an exercise in validating ourselves as professionals. It's about people understanding what happens and why, and of being able to get an understanding of how robust and fair the system is - but also an understanding of where and why that system falls down. I don't think its about putting the court system in a positive light. I think it's about being honest and about engaging in dialogue. We all know that although there is much to be proud of the system is in fact far from perfect, although this may be in different aspects or for different reasons than are perceived by the unhappy ex-litigant. To pretend the family justice system is not struggling with significant problems would be disingenuous and transparent in the wrong sense of the word.

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Following on from today's discussion I'd like to prompt a debate amongst professionals working in the family justice system about this - lawyers, judges, social workers, court staff. Right here on this blog. And of course anyone who reads this blog is welcome to chip in.

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How should we harness the power of the internet and how can we engage meaningfully with the public through the  internet and bloggers, web fora etc? How can those of us working in the family court system help in increasing the quality, reliability and balance of the information available to those whose main source of information on this topic is the internet? How can we use the internet to enhance our own understanding of what the public think of the system and why?

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Who will start me off with a comment?