This is the text of a speech delivered by Chair of The Transparency Project, Lucy Reed at the Bloomsbury Family Law Conference on 16 May 2018, at Gray’s Inn.
Transparency – why it matters, what it means
- What IS transparency and why does it matter?
- Implications for practice in children work (Can’t I just ignore it?)
- Key law in relation to questions of privacy and publicity in children proceedings
- Help – What should I do if a journalist pitches up? What if my client wants to tell their story?
- Recent and future developments
It seems appropriate at the outset of a talk about transparency to be open and honest with my audience.
So here goes. I’m a bit anxious about this talk.
It’s not just that I’m worried that the list of five bullet points set out in the programme for this session may be over ambitious for a 25 minute slot. Or because the organisers have cruelly made me do a powerpoint, which I am desperately trying to wean myself off of.
It’s more than that.
I’ll let you into a secret :
It’s nerve wracking to be delivering this speech to such a specialist audience. It’s especially so only a week after Baroness Hale delivered the first Nicholas Wall Memorial Lecture on the same topic. I’m feeling the pressure!
Coming from a professional advocate, this may perhaps sound faintly ridiculous. And more so from a lawyer who regularly opens herself up to ridicule by engaging with the public on social media.
But delivering a speech is not the same as conducting advocacy in court.
Here – whatever comes out of my mouth is all my own responsibility – I can’t hide behind the fact I am acting on instructions. And the room is an intimidating cross section of my professional peers and seniors. So I’m nervous because I’m out of my comfort zone.
You may be wondering why I am beginning my talk with an awkward display of self-doubt. But there is a reason.
I think that if we are honest, this uncomfortable feeling is how many family lawyers experience transparency, and in particular how they feel about the idea of a journalist being in court. Particularly so when we aren’t expecting it and are a bit wibbly on the law around reporting restrictions – or where we might be in the firing line for criticism (either directly or as our client’s proxy).
And although Baroness Hale last week quipped in response to a question from the audience, that she thought ‘counsel usually like publicity’, I’m pretty sure that those who like publicity are predominately those who come out of a judgment smelling of roses. The barristers recently criticized by the court of appeal for their conduct in a hearing below probably not so much.
We are not used to the experience of having a stranger burning a hole in our backs with their eyes – watching every stumble, writing down every awkward question and the struggle to find a convincing reply. Ready to tell the world that we fluffed it.
I’m up here with the luxury of a pre-prepared speech with – I hope – no awkward questions from the judge and no client whispering or tugging, no theatrical yawning gestures from my opponent. But apart from those with a well developed appellate practice, being watched at work by outsiders and being critiqued is not what we at the family bar are used to, even if our criminal colleagues are – and even if we expect our clients to accept extra ordinary levels of scrutiny without complaint.
Transparency is of course far more than letting in the journalists, but I think thatinstinct drives a lot of our responses to calls for transparency.
We habitually correct those who call it secrecy – it’s privacy we say. Privacy for the children, the parties. As the President has observed in Re J in 2013, whatever the motivation – it looks and smells a lot like secrecy from the outside. And I think if we are honest it is also privacy for us. It is easier not to have ill-informed outsiders asking ‘Why do you do it that way?’ and reminding us of how brutal the court process is for those who have not normalized it.
I expect that many of you will have been reading Secret Barrister’s book – Stories of the law and how it’s broken. Although the problems in the criminal justice system that Secret Barrister describes are depressingly familiar to us over here in family, I was struck with the way that Secret Barrister characterized the criminal bar in this passage :
Ask for what causes a law graduate to swallow the red pill marked ‘Barrister’, we all have our official stock answers gathering dust from our days interviewing for pupillages. A thirst for justice. A passion for advocacy….
Secret Barrister goes on :
But most applicants are too timid to admit the core motivation that lures someone to the bar : the cry for attention, the desperate need to be centre stage in the climactic scenes of people’s lives. A combination of sated vanity and, buried deep below the affectations of brash nonchalance, a quiet but sincere desire to help people tends to be the unifier among most criminal hacks.
Well there is plenty of drama in family proceedings, but most family lawyers didn’t come into the job for all that ‘Ladies and Gentlemen of the jury’ malarkey – and most family lawyers are not motivated by the adrenalin-inducing theatricality of public hearings. Or if we once were, we have become used to performing to a small, known audience where a bad hair day will be soon forgotten.
And it isn’t just journalists that make us twitchy, it’s alsothe publication of information when judgments go up on Bailii. We all know the press trawl them for easy headlines.
In my experience of mainly care work, advocates are generally unenthusiastic about the publication of judgments under the 2014 guidance. I’ve noticed that maany of my colleagues keep mum about the publication guidance at the end of a case in the hope, I suspect, that it just won’t crop up – even though the guidance is very clear that the judgment should be published unless there are compelling reasons not to.
It is a rarity for an advocate to remind the judge of the need to consider the guidance in a case falling under the schedule, and many judges seem happy not to be reminded – although I have found that if you ask they usually say yes. Butnoadvocate damned with faint praise in a judgment for their “ambitious” or “creative” submissions, who is publicly taken down for their non-compliance – or whose mediocrity is apparent from their absence from the list of judicial credits – is going to spontaneously remind the judge that her judgment falls for publication under the guidance.
It is very cosy in here in our cocoon.
It isn’t just lawyers or social workers who can relax a little too much into the comfort of privacy :
Judges are not legal robots simply calculating and applying the law. They are human actors too, are susceptible to cognitive biases and blind spots like the rest of us – as judicial training and scholarship is increasingly acknowledging. It is inevitable I think that those feelings of self doubt or worries, are likely to be present for the judiciary – perhaps subconsciously – even as they go about faithfully applying the relevant legal tests – perhaps more so where there has been so much brutal criticism of the judiciary in a number of recent high profile cases – both within the family law field and more widely. We cannot – and should not – expect our judges not to be human, but we expect and train them to be alert to such potential bias or self-interest and to put it to one side.
As Sir Mark Hedley tells us in his excellent book The Modern Judge – Power, Responsibility and Society’s Expectations – judges must be simultaneously humble and confident.
I think we need to do likewise as professionals.
Looking at the family justice system at large, I wonder if there is a risk that our collective bias or defensiveness is invisible to us – because we are too close and because all of our colleagues reinforce that bias?
When an outsider challenges how we do things it is uncomfortable.
When the press criticize us it is uncomfortable.
When cases like Alfie Evans break through it is harder to avoid the cognitive dissonance.
But our objective should not be comfort. A little discomfort is a healthy thing. It tests. It challenges, it raises standards and it brings with it fresh ideas.
Inside the bubble we are very vulnerable to group think.
We recognize this in every other walk of life, but we struggle with it in the family justice system.
That is where I want to start when I talk about transparency.
So what IS transparency and why does it matter?
When we first set up The Transparency Project in 2014 I was often met with ‘I suppose you want to hold all hearings in open court?’. When you said the word transparency that is all that people thought of. That happens less now. I think that there is a growing realization that transparency in family justice is not just about sitting in open court or publishing judgments – and it isn’t about abandoning privacy either. It is a way of working that is fundamentally open – open to view, open to challenge and open to change. It is not incompatible with privacy, or with emotional and physical safety for families. But it does require care and thought and resources to make it happen both safely AND effectively. It is not done with the turning of a lock, but over time through cultural change.
I wrote a blog post on Pink Tape recently about how it is not the role of a lawyer to believe their client, which seemed to resonate. I’ve had to give that pep talk to several clients since then. I have heard myself saying to a number of clients how important it is for their lawyer to be objective, to maintain professional distance so that I can do the best job for them.
And in those conversations our advice is all about predicting outcomes, likelihoods, risks. What is likelyto happen not what shouldhappen. How it works not how it shouldwork. When we are acting for an individual client that professional distance enables us to sidestep the moral questions about what the law shouldbe or how the system shouldwork. Not my problem. Not my fault.
But when you step back and look at the system as a whole, who is asking those SHOULD questions? In some areas we are doing this. In others we’re not doing so well : Resolution is talking to the public about why we should have no fault divorce, using the Owens case as a springboard. We’re very good at explaining why legal aid SHOULD be reinstated (not so good at getting listened to). And judges are increasingly publishing judgments setting out the difficulties of doing their jobs with their hands tied behind their backs. No secure units, no legal aid for either complainant or accused in alleged rape cases, poorly performing local authorities and missing police disclosure.
But we may be missing other, crucial issues because we are too immersed, too close to the thing we think we are objective about. It should be obvious that those who are not immersed in the system may see things that are invisible to us, even with our experience of it, and our collective expertise.
One example I can give of this is that – as a result of listening to accounts from a number of parents who have been through the system about what it feels like to see the lawyers in their case all laughing in the corner at court, or how it feels to be abandoned outside whilst all the lawyers troup in counsel only – I am now far more conscious of ensuring my own behaviour will help my client to feel they are being given a voice and to feel confident they can place their trust in me as an independent lawyer. You might think this is something that comes with maturity as a lawyer, but once you start looking across the waiting room floor through the eyes of a frightened parent you will see that as a profession we can actually be pretty disrespectful and oblivious to our clients or other families at court – and that perhaps those of us who have been doing it longer are more likely to become impervious to these issues. As professionals, humour is a vital part of our survival when the subject matter is so grim, but we need to stop and look at it from the other side. We should be as willing to scrutinize our habits and practice as the strength of the cases we are briefed in.
There may be many reasons to disagree with criticism of the the law, the family justice system or those working in it, and it is particularly tempting to do so when it is couched in emotive or abusive terms. Not all criticism is based on an accurate understanding of the law or process, but that does not mean we should just ignore everything.
Whilst the judicial and legal community are rightly behind calls to find a way to avoid direct cross examination of domestic abuse complainants, it is worth remembering that it was the persistence of agencies on the outside like Women’s Aid that really pushed this up the agenda. You don’t have to agree with everything that organization says about the family justice system to acknowledge their contribution in this respect.
We have to take great care not to dismiss legitimate challenge and criticism as ill-informed carping or trolling (although there is a lot of that about too). We are quite prepared to dish out the tough advice and tell people things they don’t want to hear. We have to learn to take a little of our own medicine and resist the urge to respond by telling the non-legal world why they wouldn’t understand or that they are just lawyer bashing.
It would be really easy after the Alfie Evans case to withdraw, to say : look at the circus that arrives and camps outside when we are open. It would be very easy to conclude that transparency doesn’t help.
But blaming transparency for the actions of outsiders is a mistake. If anything the openness of proceedings in Alfie’s case, and Charlie’s before failed to combat the misinformation – but it didn’t cause it.
The publication of the judgments has been powerful in helping those willing to listen to understand why the courts have taken the decisions they have, and why they had to. Informed discussion about the issues raised by exceptional cases like Alfie and Charlie’s is an essential part of building public acceptance of the legal framework.
This is not a new issue, although it feels very contemporary. Antony Bland was a victim of the Hillsborough disaster and the withdrawal of his life support was litigated in the 1990s. That case caused significant public concern at the time. In his judgment in that case Lord Hoffmann said that :
The decision of the court should be able to carry conviction with the ordinary person as being based not merely on legal precedent but also upon acceptable ethical values.
We have to get societal buy in. That goes not just for cases about end of life treatment and care, but to all of the decisions made within the family court. We have to somehow take the public with us.
In The Modern Judge Sir Mark Hedley says that
Society commits to judges both great power and great responsibility in the individual case, and does so in what should be the full knowledge of the inherent fallibility of any human system of justice. Thus, if as a society we are to have a politically and morallyacceptable system, we must have an uncorrupted, well-trained, and independent judiciary who enjoy the trustof that society.
I have heard Sir Mark directlyacknowledge thatfallibility to a room full of skeptical parents and campaigners. That was both powerful and necessary.
We may not realise it or feel it, but lawyers and social workers are invested with great power also. Sir Mark’s recipe of confidence and humility can, I suggest, be extrapolated to other players across the system.
Where public concern is driven as much by suspicion of authority or the system itself, as by the individual facts of the case, a retreat behind the curtain of privacy does not help either the individual or the wider acceptance of the rule of law.
Without openness in cases like Alfie’s, there would have been no opportunity to explain the rationale, or of educating the public. No way of entering into a conversation with those who were prepared to engage and think. Without it, there would be less trust, not more. What we saw in Alfie’s case (and Charlie’s) is a product of a long process of declining trust and confidence in institutions in general and the family court system in particular. Trust hasn’t been eroded with one single case, and nor will public trust and understanding be fixed through a single case either. And although the prompt publication of all the judgments is essential, in itself it is not enough – we cannot publish and assume the public will find and take on the contents by some process of magical osmosis. Transparency is a process, a direction of travel, an attitude – a social responsibility. We should not let Alfie’s case make us fear transparency. It should spur us on.
In the family justice system we change lives. Sometimes for the better, sometimes not. The decisions we make for our clients – the decisions judges make – affect them for their whole lives, and often the next generation too. If you face outwards instead of inwards, if you talk to people outside our family law bubble instead of just the people in this room, you will realise that people are asking for accountability, and they are asking questions : about what the law is and whether it should be different, why we do things this way rather than that, and what our evidence base is for our approach. We are beginning to acknowledge that in some areas our evidence base is inadequate.
Transparency is a two way street – it is not just about information out: publishing judgments, educating the ill informed about why we know best. It is also about information and ideas IN.
Take the field of adoption where there is now an emerging acknowledgment of a paucity of evidence about long term outcomes, about what works, and about what happens to the children who pass through our courts – and a realization that social media is changing everything – and Lord Justice McFarlane’s Bridget Lindley Memorial Lecture in 2017 represented a milestone in a move towards a greater frankness in conversations about adoption itself and about the public perception of family courts. He said this :
‘From what I have been told from a range of sources, and from my own exposure on a daily basis to litigants in person seeking to appeal child care decisions, there is a significant and growing distrustshown by some parents in child care lawyers and judges. This is deeply worrying and needs to be addressed if it is not to lead to yet more parents disengagingfrom working with professionals and the process in a way which can, in my view, only damage their interestsrather than enhance them.’
That speech was not a didactic rehearsal of our self-generated wisdom – it was the product of time spent listening to the voices of outsiders.
Can you ignore transparency?
Well you can. But as the soon to be President of the Family Division acknowledges in that passage, it is becoming more and more unrealistic. Because what goes on out there in the real world affects what happens in court proceedings.
The reality is that our clients are heavily influenced by what they read on social media, in newspapers, in what they are told by friends or supporters and in their Facebook feeds. When we give advice to clients we are one voice competing on a trading floor – and almost every other voice is offering a more immediately compelling narrative than ours.
Many people don’t trust lawyers or courts or social workers or judges. We should be really worried about that. And we should ask ourselves how we can change it rather than dismissing it as just another difficult or unreceptive client.
And more practically, it’s perfectly possible that one day, one of your cases will involve a journalist rocking up, or a reporting restriction order, or an unanticipated media frenzy. And you will be called on at short notice to identify the competing public interest and privacy arguments and to explain to your client what are legitimate justifications for restricting publicity or for relaxing the automatic restraints to permit reporting. And the likelihood is that your opponent will be a media lawyer instructed by the mainstream media and who makes these arguments for their bread and butter.
And we’re back to that nervous feeling.
One of the reasons Julie Doughty, Paul Magrath and I wrote our book on transparency in the family courts was to help reduce that anxiety caused by being rusty or unfamiliar with the law when a transparency issue crops up – often unexpectedly – with the tools to dealwith issues of privacy and publicity we can do better for our clients andin helping to promote public confidence in the system we’re so proud of.
So to the practical part of this talk.
So, what should you do if a journalist turns up in court?
First of all don’t panic!
Remember that in most instances a journalist can attend but report very little – unless they ask to and are successful in any such application.
Next, remember there are basically four aspects you need to be ready to refresh your memory on.
- Firstly remember the so-called ‘automatic restraints’, the default position which the court under it’s inherent jurisdiction has the power to tighten or relax. The key points are:
- S97 CA 1989 which deals with identification of subject children by name, photo or address during the life of proceedings only (Clayton v Clayton )
- s12 AJA 1960 which deals with the publication of information relating to proceedings in cases concerning children – the 2004 judgment of Munby J as he then was in Kent County Council v B is still the go to authority for what s12 does and does not prohibit
- In money cases the mysterious implied undertaking may apply (as to which see the 2002 authority of Clibbery v Allan – and for those interested in whether or not the implied undertaking ties the hands of third parties, which is an unresolved question – see the judgments of Mostyn J in Appleton and Macdonald J in the Princess Tessy case)
- Secondly, the rules on media attendance FPR 27.11 and PD27B and regarding privacy of proceedings generally
- Third, if you need it : know where to go for the procedure around reporting restriction orders – pay particular attention to giving the right people and organisations notice, and to the need to draft with care – vague and blanket orders will not do. (PD12I – see also P (A Child)  EWHC 4048 (Fam) (Italian c-section case), which sets out the requirements of notice and how Media Lawyer Injunctions Alert Service works (used to be Copy Direct))
- Fourthly, and most importantly : the Article 8 / 10 balancing exercise – and the concept of public interest. (see Lord Steyn’s formulation in Re S  1 AC 593) There is no presumption or generic answer – an intense focus on the comparative importance of the specific rights in the individual case is required – ultimately by the judge, but in the first instance by the lawyers advising their clients.
The Transparency Project Media Guide is a useful first port of call if you need to reorient yourself and to re-locate the relevant rules and guidance you need to look up…
Next : Don’t be afraid to talk to the journalist. Find out what they are hoping to report on and who they are working for – if they work for a mainstream outlet they are likely to have a legal department who will help them understand what are the lawful parameters of reporting, and will be alive to the risks of getting it wrong – but if they seem clueless you can identify whether there is any need to explain the automatic restraints to them or if you need to seek some additional restriction on reporting, or whether you need to raise an objection to the attendance of a journalist under the rules.
Finally, don’t panic your client, but don’t fob them off with generalities. Explain the law and advise on risks and options.
What should I do if my client wants to tell their story?
Again – don’t panic!
Secondly, talk to them – find out about what is motivating them. What do they want to achieve? What do they want to talk about and who do they want to tell? Is this a symptom of them not being listened to that needs to be addressed? Do they understand the risks?
Thirdly, again – don’t fob them off with generalities. Don’t just shut them down by telling them they are not allowed to publish anything. It’s a bit more complicated than that and you need to articulate that to them in a way they can understand – which I acknowledge is made somewhat difficult by the blurred edges and overlaps of the automatic restraints.
Finally, give them some advice about the risks and benefits of taking this course of action and then give them some advice about how to go about seeking any necessary permission.
There are many ways of achieving a client’s wish to tell their story – through the publication of a judgment, or through some broader permissive order. But it does require thought and creative thinking about how a relaxation in one area might be made possible and safe by a restriction in another – publication of information is rarely all or nothing and great care and attention to detail is required, to ascertain whether a proposed restriction is likely to be a necessary and proportionate interference with article 10 or 8 rights.
Of course, where your client is a child or a local authority different considerations may apply. But those clients too are entitled to expect an accessible explanation of the legal framework and the risks and benefits of a particular course of action – and for their informedviews and instructions then to be taken.
The Transparency Project Guidance note on the publication of judgments is helpful here.
Recent and future developments
Well, I’ve just about managed to honour all of my bullet points so far. My last bullet point is recent and future developments. And that’s a little more tricky because the President’s further transparency consultation seems ironically still to be hidden up his sleeve since first being promised in I think 2014. There are two things on the horizon that I canflag here :
Firstly, the President has indicated in his Eighteenth view that many more financial remedy judgments will be reported in what I like to call non-oligarch cases, but what that means in practice is not yet clear. The President is a man who chooses his words with care – he says judgments will be reportedrather than published. Whether that distinction is of significance is not yet clear.
Who will have access to the judgments, and in what format will make a very real difference to how far this reform will further transparency. Does the president have a in mind a new Kemp & Kemp for financial remedies or the provision of data in some standardized form so that the big data can be crunched for patterns? And how accessible will that information be to the impecunious litigant in person or the public more generally?
Secondly, the FPR Rules Committee are considering a proposal by the Transparency Project to grant legal bloggers access to private hearings on a par with accredited media representatives. The FPR Rules Committee is known for moving at a somewhat glacial pace and, we are discovering, an apparently simple change to the rules requires the heaving into action of a giant machine. So, whilst we don’t expect change any time soon – it is a sign of progress that such a change has even made it to the table.
So, what of the future of transparency :
In her memorial lecture, Baroness Hale rightly emphasised the rights of the child and the need for the child’s welfare to be a primary consideration when considering issues of publicity.
But although there are understandable worries that individual children may be harmed by publicity, there is in fact very limited evidence of actual harm caused – the few studies which look at this provide evidence of hypothetical harm and of the worry of harm.
The studies that are most often referred to here are a series of studies commissioned by the ALC and NYAS and led by Dr Julia Brophy. The two most recent were published in 2014 and 2015 respectively. The first, in light of the Next Steps consultation, involved 11 teenagers who were collectively interviewed, after being given a summary of current privacy protections and the then proposed Next Step reforms that were arguably highly influential on their responses.
The second, involved 8 children ‘investigators’ being tasked with reading 21 anonymised court judgments that had appeared on BAILII, and checking them for risks of identification, either through too much detail in the judgments themselves, or through jigsaw identification. It is not a study showing that individual children had been identified, or that any specific harm had flowed, but the 8 ‘investigators’ were very worried that a number of the children in the judgments would be potentially identifiable to peers and local community.
We have to address those understandable – and legitimate – anxieties on the part of children, but we do that by ensuring we have proper safeguards. And we must, I think acknowledge that the worries of these small cohorts of children may or may not be representative, and cannot determine things for all children. They are at present the best evidence available however.
I would suggest that we must, when representing children of a sufficient age, take our responsibilities to advise and to obtain informed instructions seriously, rather than hoping that the issue of publicity doesn’t arise – so we can avoid broaching a tricky subject. I have found that by and large where parentsare told that the judge may wish to publish the judgment in their case, on an anonymised basis, most parents do not oppose that, even though the judgment may contain personal information or may be critical of their parenting and behaviour – and even where they do not agree with the outcome.
We might find that if we more routinely asked children about publicity and explained the safeguards to them, that some of those children would surprise us with their responses. But we won’t know until we build this into our practice.
There is sadly still plenty of evidence of anonymization failures where judgments are published, and therefore of a risk of harm – it is important to be clear that no individual examples of actual catastrophe have been provided but we cannot minimize the risks of such inconsistency in the thoughtfulness and rigour of anonymisation practice.
At The Transparency Project we continue to spot anonymisation errors, or receive messages drawing them to our attention – and on a number of occasions this has resulted in judgments being removed for correction.
None of this though, means we can abandon transparency, because the huge cohort of children whose lives are touched by family courts every year needthere to be trust and confidence in the system as much as they need privacy.
- They need their mums and dads to engagewith care proceedings so that courts can be confident that professionals can work with them to keep them safe at home.
- They need their parents not to be distracted from the chronic effect of conflict on their children by their need to rage against perceived systemic discrimination.
- They need their parents to feel confident that they can ask for help without the state stealing their children, so that they can avoid becoming a LAC statistic.
- They need their parent to be able to trust the independence of their lawyers and the experts the court relies upon – and to believe ultimately that those working in the family justice system are out to protect children and not themselves.
Individual children are harmed by these societal issues and by the suspicion of what goes on in the secret family courts. And somehow we have to factor that into the equation.
We need to tailor our transparent working to mitigate the harm of publicity, and we need to gather better evidence to do that well – if there is harm happening we need to identify it and find ways to reduce the risk of such harm in future. If we do transparency well those understandable worries about harm will reduce. But what we cannot do is retreat.
16 May 2018