Media Access & Reporting

Thanks to Adam Wagner at UKHR Blog for alerting me to today’s* publication of “A joint publication of The President of the Family Division, the Judicial College and the Society of Editors” entitled “Media Access & Reporting”, which comes just as I was about to put finger to keyboard and begin to type a blog post containing a proposal in respect of that very topic…Of which more momentarily…

Apparently the document arises from “a group of lawyers and journalists, including representatives from both the print and broadcast media, [who] got together to talk to each other”. Whatever that means this is not, I think, a piece of work that the family bar were particularly aware was underway.

Regardless of that, it’s a pleasant surprise, because this is a really useful document for lawyer practitioners and for judges, albeit probably a bit inaccessible for non-legal interested minds. It is a job and a half gathering together all the source material whenever a reporting issue comes up, and this is a really comprehensive analysis of what rules apply in what cases, including in the Court of Protection. It is far more comprehensive and accurate in its points of detail than my previous blog posts and I will use it as a reference tool when such issues arise in my cases. It is also worth noting that there are some interesting, albeit rather esoteric, questions raised about a number of potential points of law, which do rather invite the attention of mischievous lawyers with too much time on their hands.

You can read the guidance on the Judiciary website here.

So, to the main point:

There is much concern at the LASPO proposals on legal aid. There are many individuals and organisations doing their best to bring to the attention of the public and parliament the reality of what these cuts will mean for ordinary people. Sound off for Justice produced an excellent video campaign featuring a hypothetical private law family dispute (a father seeking contact), but otherwise there is little concrete information out there to counter suggestions that public funds are being frittered away on legal aid for undeserving or trivial cases. Individuals involved in private law family cases are likely to be particularly hard hit by the proposed cuts, and whilst those involved in the field of family law are able to articulate the myriad reasons why the cuts would be catastrophic for access to justice somehow the message is not getting across as effectively in family law. I am concerned that family law will end up bearing the brunt, where concessions are made in other areas, because I think it is in many ways the easiest target. I have been pondering whether this difficulty is in large part because the impact of legal aid on people’s lives is not made real in family cases in the way that it is in other types of work. Unlike housing or PI, where vulnerable people who have been helped by legal aid are able to tell their story, there are no real case studies of family cases – because they cannot be reported.

I began to think a few weeks ago whether or not it would be appropriate in the court of my work to make an application for permission to report limited categories of information about cases in which I was involved, for the purposes of case studies. I have had several recent cases in which, if they were to take place after implementation of the proposed cuts, would result in chaos and catastrophe. I concluded that this would raise a number of practical difficulties, such as the obtaining of consent from both (all) parties and their lawyers, the drafting of the information proposed to be released, the mechanism by which such an application would be dealt with and the costs of the same. In the context of already packed lists, overworked lawyers and anxious parties this all seems a bit difficult.

But what if there were a recognised scheme for the reporting of information for the purposes of case study? It could look something like this:

  • There would need to be a short information sheet for provision to parties, opposing lawyers and judges
  • Applications could be dealt with on paper if agreed or at the conclusion of an already listed hearing if not
  • Lawyers would need to agree to make such applications pro bono as they would not be covered by public funding – there would be costs implications if a hearing had to be convened simply for the purpose of dealing with the application, and there would be difficulties if an opposing lawyer sought their costs. This does mean I think that most if not all applications could only proceed if by consent
  • There would need to be a pro forma / template setting out the categories of information which it is proposed should be disclosed, any categories or specific pieces of information which should NOT be disclosed, and in some cases it may be preferable for there to be an agreed statement of facts to be prepared for the purposes of disclosure
  • A pro forma draft order would need to be prepared
  • They types of information that might be covered could be:
    • type of case – contact, residence, etc
    • description of the central factual and legal issues,
    • summary of litigation history,
    • duration of hearings past and listed, who has or is likely to be cross examined and by whom and broadly on what topics,
    • if the case has or will involve allegations of d.v., non accidental injury, emotional or sexual abuse
    • whether there are any third parties involved and what their relation to the child and role in the case is
    • if there is a 9.5 / 16.4 guardian appointed or any experts
    • whether or not either party does or has qualified for legal aid, whether or not they are or have been represented and whether or not they would qualify under the new scheme (and if not why not).
    • any point of law or legal difficulty / novelty.
  • There would be no need to lift the usual anonymity provisions – any drafted case summary could identify the pseudonyms by which the parties / children should be referred in any publication
  • There would need to be consideration given to the mechanism for any press interviews that might be undertaken in respect of the case – and indeed if such an interview were to be permitted at all. This is potentially far more problematic, as there is potential for inappropriate material to slip out.
  • Scheme information could be circulated (and endorsed) via professional and representative bodies (FLBA, Law Soc, Resolution, Judiciary?)
I don’t know how many cases would ultimately be suitable, but it is frustrating to face daily examples of scenarios where the ability for at least one of the parties to be advised, represented and to deal with the litigation process is essential to the smooth operation of the case, the list and the court. Maudlin conversations between opposing lawyers at the court coffee machine pondering the unimaginable chaos that would ensue if both parties were litigants in person are replicated across the HMCTS estate with frightening regularity. We know what’s happening and what will happen, but are unable to advocate for legal aid because we are bound by confidentiality. The irony.
Am I mad? Could this be beaten into workable shape or is it a hair-brained scheme that would end up being a whole lot of pointless effort?
*no longer today – post got paused, midway…

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