Transparency – where now?

This is a post by Sarah Phillimore. TL:DR – there is clearly a need for a shift in culture and an attempt to better balance the need for children’s privacy against the need for public trust and confidence in the system. This shift will only occur however if is properly resourced – simple exhortations to do better will achieve nothing. We will also need to keep an eye out for the operation of the Law of Unintended Consequences, and the likely satellite litigation that will follow attempts to withhold certain documents from journalists.

On 28th October 2021 the President of the Family Division released the review of progress of increased transparency in the family justice system; Confidence and Confidentiality: Transparency in the Family Courts in the Family Courts, noting that the pace of change to date had been ‘glacial’, owing in part to the tensions between two fundamental principles

…the need to enhance public confidence in the Family Court and, on the other, the need to maintain confidentiality by safeguarding the privacy of those who turn to the court for protection or for the resolution of intimate disputes.

A quick google of the title brings the first result, depressingly, a very similar named Government paper from 2006 which supports the President’s disappointment with the pace of change. We seem to have all been agreeing for decades that our current methods of wrangling the tension between these two principles are failing, and that this risks a serious impact on public trust and confidence in the system. So what now? Is anything actually going to change this time?

The President is clear that things must change and he will take responsibility for making this change. He sets out at para 5 why this is an important issue – the caseload of the FJS is immense – 224,902 cases in 2020 alone. So a lot of people have a direct interest in knowing how judges exercise their discretion in these cases. ‘Open Justice’ is also ‘a fundamental constitutional imperative’. Without public scrutiny, how are judges held to account for the decisions they make?

But of course the arguments against increased publicity are also strong and well known; primarily the impact on children who may not want the intimate and distressing details of their family life to be public knowledge.

A current stumbling block is section 12 the Administration of Justice Act 1960, which I have written about here. This is poorly understood legislation which has undoubtedly had a chilling impact on what may or may not be discussed about cases in the family courts. So even though the rules were changed to allow accredited media representatives and legal bloggers to attend private Family Court hearing as of right (r 27.11), they are still covered by AJA 1960, s 12 which prevents publication of information relating to proceedings if they concern children – thus removing much of the point of being there at all.

The reporting that IS done is often based on ‘anonymous accounts of negative experiences’ to which the system cannot respond, leading to (para 27):

thoroughly unsatisfactory state of affairs, with the drip-drip of concerning stories, that are neither answered nor explained by publication of a judgment, inevitably eroding public confidence in the Family justice system.

The President states that the way of reconciling two potentially competing needs of open justice and protecting children, is not to fall into the trap of thinking this is a simple binary – open the courts, yes/no. The President comments that the work of National Family Justice Observatory, The Transparency Project and the success of the CoP Open Justice Project, run by Professor Celia Kitzinger, has shown that it is possible to produce commentary and information about the system, without compromising privacy. So how do we move this work forward to a larger stage?

A major shift is required in culture and process to increase transparency

The President notes that previous efforts to effect this shift have not worked. Journalists don’t attend court hearings – and why would they! They are worried about being found in contempt of court. Judges are not publishing enough judgments – unsurprisingly when they do not have the time to prepare anonymised judgments.

The suggestions to achieve the shift are as follows. This will start with a trial run or ‘pilot’ in two local authority areas (one urban and one rural) to ensure that the changes work in an effective way and to deal with any unforeseen issues and problems that may arise before it is rolled out nationally. Some are simple, practical and effective and hopefully can be ‘rolled out’ without too much trouble – others however are going to present more significant challenges, and in particular will need money to make them work.

  • accredited media representatives and legal bloggers to be able, not only to attend and observe Family Court hearings, but also to report publicly on what they see and hear.
  • Reporting must be subject to very clear rules to maintain both the anonymity of the children and family members who are before the court, and confidentiality with respect to intimate details of their private lives.
  • to establish a Transparency Implementation Group [‘TIG’] to support implementation of changes
  • urgent consideration of Parliament to consider section 12 of the AJA – and while waiting, amend the Family Procedure Rules as far as possible to mitigate its impact
  • to monitor journalists, both locally and nationally, and, where clear misreporting occurs, for it to be taken up with the relevant editors.
  • establish links at a national level between the PFD and the Society of Editors, and at a local level between DFJ’s and their local media.
  • establish a Media Liaison Committee comprised of journalists, media lawyers and judiciary (together with others who may include individuals who are wholly from outside the spheres of Family Justice or the media).establish a forum for discussion between the local and national family judiciary
  • Further consideration of what documents should be disclosed, giving the judge an over arching discretion to withhold documentation if necessary.
  • Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR, r 12.75(1), PD12G and PD14E. 
  • In order to ensure that a larger number of judgments are published, all judges to publish anonymised versions of at least 10% of their judgments each year – this may sound low but will be a significant improvement on what is happening now.
  • press for the establishment of an Anonymisation Unit within HMCTS which, through a combination of human input and/or software, will undertake the task of anonymisation. 
  • DFJ’s to invite local MP’s to the court so that a fuller understanding of the work and approach of the Family Court can, over time, develop.
  • a scheme of compulsory data collection at the end of each case. 
  • court lists should be made available in advance to journalists/bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate.
  • a modern online hub to access which will explain the work of the Family Court, how cases are dealt with, what other options exist for dispute resolution and how to make an application. The website could signpost visitors to other potential sources of support or information. It should be the go-to first point of reference for anyone who has a need to engage with the Family Court.
  • the public to have access to an annual report, which would include data setting out case numbers, categories of proceedings and outcomes. The report would also include an annual audit on the progress of the various initiatives that are now to be launched under the overall umbrella of ‘transparency’.

My comments

I agree that something has to change. I echo all that is said about the dangers of allowing anonymous reports made to partisan journalists being the only public source of information that many have. But I do wonder how simple declarations of intent such as “openness and confidentiality are not irreconcilable and each is achievable. The aim is to enhance public confidence significantly, whilst at the same time firmly protecting continued confidentiality” are really are going to play out in practice.

I have commented about my own ‘journey’ with regard to transparency – from my initial and in hindsight embarrassingly naive world view that all we needed was to embrace open discussion and all would be well – to what I think is a much bleaker, but more realistic view of human nature, our love of stories and our resistance to accepting facts which challenge our narratives. I am afraid I no longer have confidence in journalists to reliably report facts, rather than cherry pick those facts to suit a narrative. The depressing reality is that most journalists only appear to care about the ‘sexy’ stories – the vast and mundane bulk of family cases will not attract their attention. It is not simply fear of contempt of court that has seen them stay away from court rooms. It is rather than 99% of family cases are of absolutely no interest to other than the people directly involved.

I am particularly concerned about the proposals regarding what documentation is to be released. At para 43 the President says:

My preliminary view is that those attending should be allowed to read position statements and witness statements but not medical reports or primary documents such as police disclosure. However, in all cases the judge will have a discretion to withhold documentation if that is necessary on the facts of the case.

This is going to need very careful thought. My own experience of journalists attempting to see documents which provide the ‘meat’ of a case – namely highly sensitive and personally distressing details about mental health conditions etc – has been entirely negative, leading to a raft of ‘satellite litigation’ over what could or couldn’t be disclosed, wasting the time of the courts and causing considerable distress to the lay parties. I am afraid that it is medical and police reports that journalists will want to see, as they are likely to contain the kind of intimate detail to make reporting ‘worthwhile’. I think it is this issue where the simple declaration ‘we can do this!’ is likely to founder and likely to bog down the family courts in further litigation that it simply does not have the capacity to deal with.

Further, it is good to see that the President is clearly alive to the difficulties of asking judges to produce ‘publication ready judgments’ – anonymisation is not simply a matter of stripping out names and replacing with initials. Care must be taken to avoid details that lead to ‘jigsaw identification’. Great detail about the nature and type of abuse suffered by a child is also not appropriate for wider publication. The suggestion is that a dedicated unit is set up to help judges – this would be ideal, but I suggest highly unlikely to ever be achieved, when our daily mantra is ‘there are no resources’ .

Almost as an aside at para 32, the President comments about the importance of data collection, which I think is key. There is a ‘data black hole’ over much of the FJS, and most obviously regarding outcomes; we rarely have feedback about whether or not a ‘final order’ actually brought any longstanding peace to a family. There is work being done by HMCTS across the justice system on collecting and using data, following the report and recommendations of Dr Natalie Byrom “HMCTS: Making the most of HMCTS data October 2020” and I would be very interested to know more about this. Better understanding of who is coming to court, why and what are the outcomes would, in my view, go a long way to improving public confidence in the system without requiring knowledge of intimate details about individual families.

I would also like to see more creative thinking. Judge Wildblood QC the Designated Family Judge for Bristol, has been experimenting for some time with efforts to bring the family justice system to the public with a variety of seminars and plays – his most recent ‘The Shake’ was held on line and about 630 people joined the remote link. There is clearly an enormous appetite for discussion and information and we need to think of other ways we can provide this, rather than simply holding up individual families for scrutiny in the actual court process. For example, I have recently volunteered to be a mentor to school students holding mock Trials, through the ‘Young Citizens’ project – we can think more about how education can be provided via schools to help people grow up to understand their country’s legal systems better.

In essence, what is necessary to achieve confidence in any legal system is quick and affordable access to robust decision making. I have significant doubts that this fundamental aim is going to be helped by encouraging more legal blogging or arguing over whether or not a journalist gets to see a psychiatric report. But, as ever, we will see. I can only hope that this Transparency Review does not join its 2006 iteration in the digital graveyard of lost causes.