As the summer has worn on, clouds have been gathering. In exchanges with other Transparency Project team members, I’ve been threatening to write a rather sullen blog post about transparency for a few weeks, and have finally been gathering my thoughts on the bow of our canal boat in a rather grey, flat looking Cambridgeshire. Transparency is a mountain, and in the Family Court we are in the foothills, but I am feeling rather flat and grey about it right now, so perhaps the scenery is fitting after all. And only this morning Celia Kitzinger tweeted how she was concerned ‘to read of the ‘secrecy’ in the family courts – unlike the relative openness of the Court of Protection.’ Linking to journalist Melanie Newman’s guest post for TP about her own, so far largely unsuccessful attempts to gain access to the primary materials underlying a family court case, Celia continued, ‘This blog is a powerful example of why open justice matters.’ Seriously, Celia, there’s no need to rub it in.
Because you see, the source of my current malaise is Celia Kitzinger’s rather brilliant Open Justice Court of Protection project, launched only a matter of weeks ago with Gill Loomes-Quinn, and which in such a short period has amassed over 30 fantastically interesting, rich, humane and informative blog posts from citizen bloggers with either professional or personal interests in the work of Court of Protection, including Celia herself, PhD researchers, Local Authority senior management, trainee barristers, IMCAs (Independent Mental Capacity Advocates), brain injury and social care case managers, and legal academics, amongst others.
Over here in the Family Court, writing about court hearings remains daunting and difficult for both journalists and other sorts of observers – our trickle of legal blog posts under the Legal Blogging Pilot has all but dried up over the summer, and in comparison the Court of Protection blog output is like a veritable flood.
So, why are things different in Family Court? Why is it so bloody hard? After all, the parallels with Court of Protection work are many – welfare decisions made about vulnerable individuals, their private and intimate family lives, experiences and wishes discussed and written about in court hearings, most often hearings which are only attended by family members, lawyers, social workers and the judge – often the same personnel involved. If Celia can do it – why can’t we?
There are three main reasons.
When we proposed the legal bloggers pilot that became PD36J we did so against a backdrop of deep rooted cultural anxiety about the potential harm to children of irresponsible reporting. We wanted to show that at least certain categories of individuals could report responsibly without causing such harm – we intentionally proposed a pilot that granted rights of attendance to a limited set of trusted individuals, correctly predicting that it would be difficult to justify their exclusion. And so we succeeded in persuading the powers that be to let us lawyers into hearings – our argument that if journalists could be trusted so could lawyers was a ‘no brainer’, as far as Sir James Munby was concerned.
But it was always difficult to persuade busy lawyers, particularly the self employed, to find time to do something that was not only unpaid but might well be anxiety inducing and inconvenient or even unpopular with their professional colleagues and local judiciary. We always struggled to get qualified lawyers to attend. Now, even though it is easier to attend hearings in courts where we do not regularly appear, thanks to the preponderance of remote hearings, more than ever before most of those who are eligible to attend hearings under the pilot (qualified lawyers) are prioritising paid work and the need to steer our own cases to and through trial, in the context of a now massive backlog of cases adjourned in the early days of lockdown, each one involving a family desperately in need of a resolution. And, as my little boat trip demonstrates, some of us are also trying to cling onto the lockdown lessons about wellbeing and the need to slow down and clock off sometimes. Given that I spearheaded the whole flipping pilot because I believed in its importance, it’s fair to say that I am more motivated to make it work than most – and yet here I am on a boat, inexplicably NOT attending remote court hearings from my stuffy home office just for the fun of it! I will get back to legal blogging, but if it’s just left to people like me it is going to remain a trickle. And not only will it remain a trickle, it will be a very samey trickle. The beauty of Celia’s project is that many small streams come from different directions to make a glorious river made up of different experiences and perspectives. A primordial soup from which may emerge enhanced public trust and confidence, ideas for reform, and a recognition of good practice. And Celia herself is in the fortunate position of being able to devote as much time to the project as she wishes – day after day she has been attending hearings in CoP, learning, writing, encouraging others. Those eligible for our scheme often, if not always, have a day job that has to come first. Admirable as she is, we can’t all be Celias.
We have slightly different albeit overlapping objectives to the CoP project, not least that we have obligations flowing from our charitable status and objectives to ensure that material we publish is responsible and legally accurate – as a small team of volunteers we have found it difficult to support aspiring lawyers to volunteer for us as writers, because the editorial demands and the responsibilities we have both as publisher and legal educational charity demand time from those of us with legal skills that, for now, are better deployed elsewhere. However, seeing what the CoP project has achieved without lawyers is inspiring and frustrating in equal measure. We know there are many aspiring lawyers who would be keen to observe and write about Family Court hearings, as they have done in the Court of Protection – educative for both themselves and their audience – but they are not eligible in Family Court under the pilot. In truth, even were the eligibility relaxed, without more radical change to the arrangements, we would still struggle to satisfy ourselves that publication of a blog post by an unqualified lawyer was not going to inadvertently amount to a contempt of court – but over time we might be able to develop ways of making this work.
Sitting in private
The second major issue derives from the fact that Court of Protection hearings are heard in public, with an adjusted version of a standard ‘transparency order’ applied (an order which in effect ensures anonymity for P), whereas Family Court hearings are heard in private even where legal bloggers or journalists attend. This has the significant legal consequence that in Family Court hearings attended by observers it is a contempt of court for an observer to report more than a very bare summary of the nature of the case, by virtue of the fact that sitting in private triggers s12 Administration of Justice Act 1960 (AJA), a provision that no longer applies in most Court of Protection cases because they don’t sit in private (often). In fact, during lockdown the standard provision for Court of Protection hearings to be in public with the transparency order re-imposed has been suspended for practical reasons associated with remote working, and Court of Protection is sitting in private, but in those individual cases where an observer requests to attend the court is applying the transparency order, in effect disapplying s12 for the purposes of such hearings, save insofar as the transparency order restricts the publication of information likely to lead to the identification of P (the person the case is about).
In children cases of course there is a statutory prohibition on the identification of the subject child (S97 CA 1989), which mirrors broadly the effect of the transparency order in Court of Protection cases save that a breach of s97 is a criminal offence not a contempt, and thus its enforcement is not in the hands of the judge dealing with the case.
The consequences of this for the reporting of family cases is profound – you go into a hearing not knowing what its about, not knowing if you will ever be able to report it – knowing and fearing that anything you might write may be seized upon or ‘raised’ by a lawyer or party as not allowed or inappropriate because nobody really knows where the edge of s12 lies, and because in truth many of those who should do not bother to re-acquaint themselves with the case law on where it might lie before expressing a view. (See, for example, Louise Tickle’s recent post on being asked to justify her attendance at court: Questions you just don’t ask.) You enter a hearing knowing that if you want to report you will need to make an application at the end of the hearing, knowing that might cause alarm (rightly or wrongly), hassle, stress. Even where you have permission you worry that you might interpret the permission differently than someone else (often permission is not reduced to writing or not drafted with clarity). And of course, entering court as you do on the strength of your professional status, you know that if you mess this up your professional reputation is on the line. Is it any wonder why even those lawyers who express initial enthusiasm in trying their hand get cold feet before even dipping in a toe?
The fact that Court of Protection has been able during Covid-19 to revert to sitting in private, and yet to also smoothly accommodate not only the attendance of observers but also a framework for them to be able to write about the hearing they have attended – in many cases seamlessly adjusting the advocacy to include a short summary of the issues in the case for the benefit of those observers – is itself an indication of how different the cultures are between the two courts.
In truth, given that the Court of Protection is sitting in private at the moment, the legal framework is once again identical to that in family cases – and yet they have made it work without the faff of a complicated pilot. No hoo hah, hand wringing, long winded explanations of who is attending and why to calm the nerves of those attending (mainly the lawyers). No lengthy discussion of what can and cannot be reported – just don’t identify P please. As Victoria Butler Cole says – you can sum that up in a tweet. And the world has not ended. Nobody has breached the transparency order or written anything irresponsible, even though they are not lawyers, or press card carrying journalists. And the reason they’ve made it work is because of culture. Look at the recent judgment of Roberts J in the case where a journalist Melanie Newman sought access to the primary materials, to see the difference.
So, how do we navigate this?
To suggest that the issues are exactly the same in the Family Court and Court of Protection would be naïve, of course. For instance, in most Court of Protection cases the person at the centre of the case not only lacks capacity but is unlikely to regain it – whether as a result of a lifelong disability, an acquired brain injury or old age P is unlikely ever to emerge from their incapacity to be confronted with material about their case in the public domain in the way that a child might have to as they attain maturity. At a macro level, the potential future impact on the subject of the publication of information is different where that case involves a child, and requires a different kind of management. Children are people whose capacity has not yet fully developed, and who may emerge into adulthood inquisitive and yet profoundly vulnerable.
Not only that, the external context is different too. Whilst Christopher Booker was equally critical of both the secret Family Court and the Court of Protection (calling it the most secretive court in Christendom), the nature and prevalence of activism around family courts is entirely different. Here, both fears and legitimate criticism of the ways in which the state takes away people’s children or fails to protect them is vociferous. Campaigners call for openness and gain strength from the parallels they see in other cases, and the support from those who they see as victims like them of the cruel and secretive family court – here both parents and children are formal parties to proceedings, not always so in Court of Protection cases. Whilst all of that is present in Court of Protection work, it is far less developed, far less organised – nobody is lobbying on behalf of Ps in the way that they are on behalf of children or parents. Were Family Court hearings to be held in public like Court of Protection cases its is reasonable to predict (though not certain) that various groups might attempt to attend and even report on such hearings, perhaps less responsibly than those who have been attending CoP hearings, usually out of quasi-professional interest of some sort – and that this might have a negative impact in some cases upon the administration of justice – the very thing that s12 was intended to protect. That risk must be seen in context – those who look beneath the surface know that external actors are already a source of ‘legal information’ to litigants, and are already influencing both their behaviour and decision making within the court process.
BUT… looking at what works in Court of Protection cases is still illuminating – and is rightly a challenge to those of us trying to work it out in Family Court.
Why couldn’t the Family Court do just what the Court of Protection is doing now? Sit in private but be ready to admit observers (unrestricted by qualification) and to implement a form of transparency order wherever they do attend? Where necessary that order could be tightened and, as no doubt also happen in Court of Protection, where necessary observers might be excluded for some or all of a hearing of a particularly sensitive nature – or where the interests of justice demand it.
The chilling effect of s12 – its disincentivisation of responsible observation and reporting – would be gone, whilst all its intended protections would remain. Where necessary, argument could be heard on the extent of restriction required in the individual case – but only where necessary – in every case where I’ve been compelled to make an application for relaxation precious time has been wasted getting to the obvious conclusion that its fine to report as long as you don’t identify, and occasionally a specification that this also means don’t name that school or don’t state the precise date of birth etc.
Celia’s project shows us that it‘s not really all that complicated. Perhaps it is a result of our fear of going too deep on transparency reform by steering an intentionally cautious route (in the shape of the pilot scheme), that we have found that we’ve steered ourselves aground in shallow water (a metaphor which might or might not be as real as it is metaphorical out here on the River Great Ouse, but which I have been injuncted from reporting on).
We always saw the pilot as a first step – on one level it has served its purpose, and we’ve demonstrated the blinking obvious – that lawyers will report responsibly (meanwhile TP member and journalist Louise Tickle has made a bid for the funding of an open Family Court reporting project under the auspices of the Bureau of Investigative Journalism and with the support of Cardiff University Schools of Journalism and Law and TP, which if successful will trial reporting by media who are accredited by virtue of having completed specially designed training). We’ve also demonstrated a second and third important thing – that the pilot is not enough, and that section 12 is strangling our ability to report : we need desperately to get out into open waters and motor onwards. We said this at page 65 onwards of our response to the President’s Transparency Review call for evidence, and will say it again with force if called to give oral evidence to the panel in due course – and we will draw on these parallels and contrasts between the two sister courts of protection when we do so.
Much like the welcome we all gave to the thunder showers when the clouds finally gave up their rain after the oppressive heat of summer, this post has been somewhat cathartic. I hope it revives the debate on transparency as much as the rain has revived the garden. Now, I’m off to wrestle with a lock gate…so many metaphors on this river….
We have a small favour to ask!
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