Last month, senior BuzzFeed reporter Emily Dugan spent three days at Birmingham’s central family and civil court, researching a fascinating and in-depth article that detailed the effects of legal aid cuts on people who can’t afford a lawyer and who therefore have to represent themselves.
Certain cases she attended, such as eviction applications, are heard in public. These are reportable just as criminal cases are. But when it came to family cases, Emily knew she’d be in for a battle: this is because even though journalists have the right to attend what are normally private hearings, they are only allowed to report the general gist of the dispute. Publishing the details of what goes on in cases about children a family court is a contempt, punishable by a fine and jail. A judge may opt to relax the law (Section 12 of the Administration of Justice Act 1960) but this power is rarely used, and as we’ll discover, making a request for a judge to use her discretion takes considerable effort.
Having had my own journalistic struggles to report family cases, I was keen to find out more about Emily’s experiences in Birmingham, and she very kindly took some time out of her day to give me an interview.
Her motivation for asking her editors for the time and resources to research the story had been prompted by her earlier reporting on magistrates courts, she told me. “I’d come across a lot of people representing themselves in that context,” she explained. “It’s such an obvious injustice when one side has representation – a lawyer with a postgraduate degree who knows how to argue a case – against a person who, as the statistics I used in the article showed, may well not have even finished school. It’s so unequal.”
By contrast to the automatic access she’d always had to criminal and other civil cases – it is a well-founded principle that the public has a right to see justice being done – what she found in Birmingham was that even being allowed into family hearings was a struggle.
“On the first morning I went up to the fifth floor which is where a lot of private family cases are heard. I spoke to the ushers, and at first it was ‘well, no, these are private cases, you can’t attend.’ And I said, actually, no, here’s my press card, I can.”
Despite Emily knowing that as an accredited member of the press, she had the right to attend family hearings, the ushers in Birmingham didn’t. “It was obvious that various meetings were going on behind the scenes,” she said. “I had a sinking feeling, as the hours went by. It took the best part of the morning, but every time somebody said no, I refused to go away and asked to speak to someone else.”
I found this fascinating: my first experience of asking to sit in a family case was at Bristol’s Civil and Family Justice Centre, and there the ushers clearly knew that journalists had the right to attend. This may have something to do with the fact that the Designated Family Judge in this area is a vigorous proponent of more openness: to my surprise, the first day I presented myself to the ushers in Bristol they rang him straightaway and I was invited to introduce myself in his chambers. In Newcastle family court too, where I’ve now spent quite a bit of time, there was no question but that I had the right to sit in, as long as I had my press card, though a factor here may be that the judge in question had considerable notice that I would be turning up.
Back to Birmingham. Once it had been grasped that Emily did indeed have the right to attend, she says the ushers were “incredibly helpful, going through the lists and picking out which cases had litigants in person.”
Having a couple of months earlier had the experience of hearing a CAFCASS Guardian instruct her barrister to object, on quite extraordinary grounds, to my presence in a private family law case – her objection was not upheld and I kept my bottom parked firmly on my seat – I was interested to discover whether anyone had asked for Emily to leave a hearing once she’d got herself through the courtroom door.
“In one case, somebody representing one of the parents said they’d prefer me not to be there but couldn’t think of a good legal argument,” she recalled.
There are in fact three distinct grounds for objecting to a journalist’s presence in a family court – the judge then decides – but it seems at the moment that lawyers aren’t familiar with them.
From the off, Emily was aware it would be “extremely challenging” to report what she saw happening in family cases. She said: “I had a brilliant in house lawyer, Siobhan Butterworth, who could help me write a letter to the judge when I wanted to report on one of the cases, but if you’re working for an organisation that doesn’t want to invest too much in out-of-the office reporting, then how do you as a journalist know what to do?”
She pointed out that, “if a judge then decides they don’t want you to report, then the cost becomes extreme: if you want to challenge their decision, you’d need a barrister or even become a litigant in person yourself.”
I can certainly attest to this. When I applied – two years after the public law care case I was interested in had concluded – to report on proceedings that saw a woman lose her baby, and her fight to get him back, the process consumed most of my waking thoughts for four months straight, and required eight days of pro-bono barristerial support. I cannot think that I’d have been successful on my own: I simply don’t have the legal knowledge or the skills.
Emily observes that while her request for permission to report got a result rather more quickly, it was still not straightforward and placed her in a distinctly unfamiliar situation. In one hearing, she explained, “I sat at the back and the judge asked me to introduce myself and say what I wanted to do. If you don’t have experience of doing that it’s incredibly daunting. As a journalist it’s your job to not be cowed by authority, but you can’t help but be intimidated by the forum when the judge asks you to justify what you want to do. You might not know what the best thing to say is, which means you might leave the judge in doubt, and you might get booted out at that point.”
The judge told her he was happy for her to sit in, but that if she wanted to report she’d have to make a formal application once the case was done and dusted. “Of course that’s where the time-consuming element comes in – and remember, many newspapers are strapped for cash,” she said. “Plus, of course, you can’t hang on forever – editors want you to file your copy! If you’re asking an editor to make an investment of your time, lawyers’ time and possibly money, when you might not be able to write much anyway, that makes the investment in making these applications very tricky.”
For one family case she wanted to report, Emily drafted an email straight after the hearing had concluded. BuzzFeed’s lawyer Siobhan Butterworth then made the email more legally persuasive, before Emily pressed “send.”
“It felt very odd asking a judge permission,” Emily recalled. She also noted that making such a request would never be countenanced by an independent press in a criminal or other civil matter heard in public. “And I never wanted to lift anonymity of the people involved. All I wanted to do in one of the cases was briefly summarise the problem and describe in a few sentences how it went in court for a man trying to get access to a boy he’d brought up as his son when he, as a litigant in person with zero legal knowledge, had to question a witness.”
The judge’s initial response “was ominous.” Emily received an almost immediate email back explaining that while the case had concluded, no decision could be made until everyone involved had been contacted for their view. For the judge to make a decision might even, she was told, require another hearing.
“I thought, ‘oh my god, for the sake a couple of paragraphs!’”
What this demonstrated, Emily reflected, “is that the application procedure to relax reporting restrictions feels quite disproportionate. Especially when what you’re interested in reporting is the state of the law and justice rather than the salacious facts of the case, it is made very difficult.”
Not knowing whether she’d get an order allowing her to report, Emily had no option but to get going with writing her piece, all the while wondering if she might have to leave out that entire segment.
I can see why she was worried. Two years ago, I nearly lost a commission to report on legal aid cuts when my editor realised I wouldn’t be able to give any detail of the most critical moments in a court hearing for stressed and nervous litigants in person. Having done much as Emily did, and hung around the Bristol courts for a few days sitting in on cases, I was told by a judge in response to an email I sent asking for permission to report that I would need to make a formal application (£155), write a skeleton argument outlining my case, and contact all the parties for their views.
That bar was just too high for me to meet with the time and resources I had.
The result was that I had to write around the actual words that were said in court, and was not satisfied that the result informed readers well enough about those critical moments for vulnerable litigants who had fetched up in front of the judge on their own.
Ultimately, this means journalists cannot hold the state to account for policy choices that negatively affect citizens at hugely difficult and stressful points in their lives. The stakes – access to their children after relationship breakdown, and the finances they need to support them – could hardly be higher.
It is important to show, by contrast, what Emily was able to achieve as a result of securing an order allowing her to report. This came through just before her deadline. The judge helpfully contacted all the parties himself, and none objected to her being able to report the hearing, which presumably eased his decision to relax the relevant statute.
Here is an excerpt from her article:
Background: Mr W is fighting for contact with a boy he has brought up as his son. But he has to make his own case in a room full of barristers, as a DNA test showed he was not actually the boy’s father. This means he is not eligible for legal aid.
“Sometimes the language is hard,” he says. “My education all came from after school. I left when I was about 16, 17. You don’t know what etiquette to use. It’s hard, innit. Sometimes you say ‘mate’ or ‘bruv’ because that’s the way you speak. It’s hard to make yourself sound respectable. It all sounds better when the lawyers say it.”
After lunch it is his turn to ask questions of the witness, a social worker. This is his opportunity to persuade the judge to allow the maximum contact he wants with the boy he loves. Instead of steering the witness to confirm his suitability, his question is a simple one: “I just want to know how quick will it be for me to be able to have contact with him?” She suggests the next school holiday and he says “Yeah, that’s sound” before adding “Is there any chance of a phone call before that?”
Judge Rowland rephrases questions to the social worker to help Mr W but there still seem to be points missing in his questioning. The social worker suggests contact could be in the school holidays, but he does not have the experience to pin down how often that will be and get it added to a care plan.
Fortunately, the barrister representing the children’s interests is up next and does some impromptu advocating for him after a brief chat: “I think on his behalf he’d like it to be six times a year – could you put that in your care plan?”
These few paragraphs provide a graphic example of what it means to have to represent yourself in a family law care case where you may lose all contact with a child who once saw you as his parent. They were words well worth fighting for, because sketching out that scene in the third person, with less detail and minus the quotes, simply would not have achieved the same result.
By contrast, Emily was able to situate the reader right inside the court, hearing the words as they were spoken, and so gives her reader the opportunity to grasp the dynamic in which a man who has not had the benefit of any legal advice or representation is left completely at sea. It also shows how the barrister for the child feels they have no option but to step in. This is by no means just about a man fighting for contact with a child he has cared for – it is also about how effectively a child’s right to continue that vital relationship can be considered by the court. It matters that we as a society understand that issues of this enormous import are being left to people to litigate on their own.
How difficult was this piece of work compared to other court reporting Emily had done, I asked – and heard her laugh whoosh towards me down the phone-line.
“It’s not like any other reporting,” she said. “You’re constantly, every sentence you write, having to think, is this going to be in contempt? And that makes it quite difficult to write a piece, because it’s often the small details in people’s lives that bring to life some of these issues, but it’s those same small details that might identify them.”
Even after publication, she added, “you’re anxious because it’s such an infrequently tested area of law, and there are so few reporters doing this, so you’re not sure how far you can go.”
How satisfied was she in the end with what she’d been able to write?
It had been a big relief to get the order, Emily told me, “because at times I really wondered whether there’d be anything I would be able to use.” But she also believes that with all the noises about increased transparency coming out of the office of Sir James Munby, the president of the family division of the High Court, “the judiciary needs to think about how to make these cases easier to report.”
There needs to be more trust between judges and journalists, she concluded. “Journalists are bound by their own ethics, and also strict laws on anonymity. Judges could do more in hearings themselves to make orders on the hoof to make it clear what the journalist can and can’t report, after hearing brief arguments. Anything more costly or time-consuming than that feels more prohibitive than court reporting should be in a democratic country.”
Louise Tickle is a freelance journalist and Transparency Project member
Feature pic : Courtesy of Natalie Bowers on Flickr (creative commons licence – thanks)