Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the June 2018 issue,  Fam Law 750.
In this month’s column, we consider some issues about newspaper coverage of family courts and the wider context of court reporting in general. As we noted in our column in January  Fam Law 95, there is a huge amount of informal sharing of information happening on social media which can be misleading and even dangerous. With the traditional mainstream media there is, at least, some element of editorial control and gatekeeping – and, at best, some high quality investigative journalism. There is even (although this is contested) some regulation. However, despite the age of ‘transparency’ ushered in by the outgoing President of the Family Division, there seems little sign of improvement in levels of public education about family justice.
While there are some who would lay the problem at the door of the media, because it seems there is little appetite for court reporting, it is unfortunate that messages to the judiciary about encouraging or facilitating the media are mixed.
THE EQUAL TREATMENT BENCH BOOK
Our attention was recently drawn by Mark Hanna, a co-author of the standard law book for journalists, McNae’s Essential Law for Journalists (M Hanna and M Dodd, OUP, new edition forthcoming 2018) to a passage in the revised version of the Equal Treatment Bench Book (Judicial College, 2018). This is available to download from the Judiciary website. Chapter 2, para 142 states:
‘The views of children and young people regarding media access to the family courts(Children’s Commissioner for England 2010). This found that 96 per cent of children who had been involved in family proceedings would have been unwilling to talk to a clinician if advised that a reporter might be in court. The report expressed concern that family courts may be faced with making difficult decisions with incomplete evidence from children and limited or no information from clinicians about children’s wishes and feelings. There is still a live debate over the issue of transparency in the family jurisdiction.’
While it is true to say that the 2010 report did identify potential problems with children being inhibited about speaking to clinicians and other professionals, if they were informed that journalists might subsequently attend court hearings about them, Mark Hanna was concerned that this rather stark assertion misrepresented the current position regarding court attendance by being unduly negative. We agree: first, the 96% figure quoted was of a small sample of children who took part in a research study in 2009–2010, not 96% of all children who have been through court proceedings. Secondly, there is a range of more recent and extensive research to draw on.
It is odd that this one finding has been isolated and highlighted in this way, especially in the light of the President’s transparency guidance (discussed below). Furthermore, when we followed up the question and had a look at the Bench Book, we could find only one other reference in its 200 pages to media attendance in family courts, namely the paper issued by Sir Nicholas Wall and the Society of Editors, The Family Courts: Media Access and Reporting (A Wolanski and K Wilson, 2011). The Bench Book describes Wolanski and Wilson as ‘summarising the current position’ which (excellent a piece of work as it was) clearly it no longer does. This section of the book then concludes with an observation that transparency in family courts is a ‘live debate’ but does not mention the President’s guidance.
The Transparency Project published a guide to media reporting only last year which can be downloaded from our website. This is therefore more up to date than the Wolanski and Wilson report which regrettably has not been revised. There are further discussions on the continuing problems of poor access to and understanding of the law about journalism and courts in the recently published book by three Transparency Project members, Transparency in Family Courts: Publicity and Privacy in Practice (J Doughty, L Reed and P Magrath, Bloomsbury Professional, 2018). A series of consultations and policy papers, leading to attempted legislative reform in 2010, has been succeeded by political inaction in subsequent years. In this article, we will briefly discuss what (if any) progress has been made in reporting about family courts. It appears that those who revised the Bench Bookneglected to update this passage which is, perhaps, a missed opportunity.
THE PRESIDENT’S DRIVE FOR TRANSPARENCY
It is now more than four years since the crescendo of accusations about ‘secret family courts’ reached what was probably its peak with the ‘forced caesarean’ case in December 2013 (see Re P (Enforced Caesarean: Reporting Restrictions)  EWHC 4048 (Fam),  2 FLR 410). The Sunday Telegraph published a story by Christopher Booker claiming that an Italian woman visiting England had been subjected to caesarean section surgery against her will at the behest of social workers who wanted to have her baby adopted. Unfortunately, the absence of any reliable reports at the time of either the relevant Court of Protection hearing regarding the mother’s capacity to consent, or of any family proceedings relating to the child, left this story to run wild. Some days later, the Court of Protection judgment was published on the Judiciary website and, in a subsequent High Court hearing, the facts were spelt out. (The Telegraph online version now carries a correction.)
This damaging mis-reporting coincided with clearly-expressed views of Sir James Munby, who had that year taken up the role of President of the Family Division and Court of Protection, for an end to accusations of secret and unaccountable courts. In a speech to the Society of Editors in November 2013, he said:
‘I am determined that the new Family Court [due to be established in April 2014] should not be saddled . . . with the charge that we are a system of secret and unaccountable justice.’
When considering reporting restrictions in the caesarean case, the President pointed out that when the story broke, none of the relevant information was in the public domain. He would therefore not blame the media for inaccuracy but added that the case was ‘final, stark and irrefutable demonstration of the pressing need for radical changes’ in the approach to transparency: ‘We simply cannot go on as hitherto’. His new practice guidance to judges, requiring them to send more judgments to BAILII, followed within weeks (now available on the Judiciary website, dated 16 January 2014).
The transparency practice guidance issued to judges in the family courts and the Court of Protection did not directly involve the media but was clearly designed to counter the perception of justice behind closed doors, by making typical family court judgments freely available online. Research that gathered journalists’ views found that some greatly valued BAILII and had become adept at utilising it as a valuable source (J Doughty, A Twaite and P Magrath, Transparency through publishing family court judgments, Cardiff University/Nuffield Foundation 2017). Others found BAILII difficult to navigate, but still appreciated the facility to go straight to the source of the judgment. One observation in that research report, that some news websites are reluctant to provide a hyperlink in their stories to BAILII does, however, still generally apply. Judges and others surveyed had mixed feelings about whether the quality and accuracy of media coverage had improved. The study also showed that some judges rarely or never complied with the guidance. Although this was due to concerns about effective anonymisation amongst some judges, there were also some who believed there was no public interest in their judgments being made available. It seems that the transparency message – whether by encouraging or allowing media attendance, or by sending judgments to BAILII – has not really got through.
TRYING TO GET A PRESS CORRECTION
As this column is being written (late April 2018) a ruling from IPSO (the Independent Press Standards Organisation) is subject to furious debate. This is the decision following a complaint brought by Tower Hamlets Council against The Times about the notorious ‘Muslim foster carer’ story (A Norfolk, 30 August 2017) which has since been discredited as inaccurate and irresponsible (see The Transparency Project blog post, 26 April 2018). Although complaints were received from more than 170 sources, only one was accepted, and even parts of this were rejected (IPSO ruling no. 20480–17). The part of the complaint that was upheld related to a subsequent article that misrepresented the circumstances leading to the child being placed in the care of her grandmother, and no complaint appears to have been accepted, let alone upheld, in respect of the original leading article.
The Transparency Project has made a number of complaints and requests for correction to newspapers in the past year, most of which have been addressed in some way. There were two matters that were rejected by the paper (both happen to be about Telegraph articles by Christopher Booker) that we felt were so serious that we took our complaints to IPSO. (These stories, and the rather unsatisfactory outcomes, are described in our column in August  Fam Law 908). Despite a good deal of ongoing criticism of IPSO as a ‘sham’ regulator, there is little political will to introduce anything stronger, as indicated by the government announcement to not re-open the Leveson enquiry nor to implement s 40 of the Crime and Courts Act 2013 which forms part of the post-Leveson structure set up under the Royal Charter on Press Regulation.
Nevertheless, we have not seen any subsequent stories from Mr Booker about ‘secret’ courts and there was a ruling on a complaint brought by the Cafcass guardian for the child in one of the cases we had complained about, although this ruling was in respect of another journalist, Sue Reid of the Daily Mail. She had covertly visited the child in hospital – which was held by IPSO to be in breach of the Editors’ Code of Practice (IPSO ruling no. 16372–17)
The extreme cases we have referred to above did not involve any journalist attending court or analysing a BAILII judgment. More recent Family Division hearings, about the terminally ill babies Charlie Gard and Alfie Evans, have attracted huge amounts of ill-informed criticism although they were largely held in public. There is, however, growing concern about the decline in court reporting generally. In a recent exercise in Bristol Magistrates Court, journalism students recorded 50 ‘newsworthy’ stories in one week but they only saw one local press reporter after 3 days (P Chamberlain, The Justice Gap blog, 10 April 2018). Concerns have also been expressed by the Society of Editors and Professor Tim Crook, who have criticised the courts for discouraging court attendance (see The Transparency Project blog posts 21 January and 20 April 2018).
We recently had an interesting comment on The Transparency Project blog from Jon Clements (a former print and broadcast reporter who has worked in criminal and civil courts) to the effect that the courts and the judiciary had previously delegated responsibility for ensuring that justice was seen to be done to the media but that technology means that age has gone. He suggested that those in the justice system now need to take that task on themselves. However, as the first steps in the President’s attempt to do just that in family justice demonstrate, this is likely to be a slow, incremental process.