Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the October 2018 issue,  Fam Law 1342.
The outgoing President of the Family Division, Sir James Munby, gave a press conference on 27 July, because he wanted an opportunity to speak to the most active press and broadcasting journalists as a group, rather than granting interviews. He was asked several questions on transparency, although, ironically, little substance of his answers appeared in the coverage. The full transcript of the conference is available on The Transparency Project website (‘Final Presidential words on transparency’, 6 August 2018).
Sir James stated that his starting point in the openness debate is that the more speech and discussion there is, the more the truth is out. This is the best way of conquering misunderstanding, dissembling, in some cases bare-faced lies, although he was aware this does not always work. Even if reporting from family courts became completely unrestricted, there would still be mis-reporting on social media. He was pleased that, now, more judgments are being published than in the past, and more of those are being well reported in the mainstream media. An increased number of cases have appeared on BAILII in recent years. He did not offer any view on the variations in compliance with his transparency guidance to judges. Although there were ongoing tensions between privacy interests and the public interest in information about a responsible, accountable court system, he would not go back on any of these developments, although acknowledging that not everyone agreed with him.
There was a question about whether a more open family justice system would have had any effect in the Ellie Butler case (Re C (A Child: Publicity)  EWCA Civ 798,  2 FLR 105). Sir James pointed out that he is not able to comment on other judges’ cases. However, from what he had read, he had not seen anything to suggest that a lack of accountability in family courts had led to the outcome of Ellie being murdered. A BBC reporter commented at this point that Ellie’s grandparents had run out of money or would have appealed (presumably about Ellie’s placement).
One journalist asked if Sir James thought that sitting in open court would ever become the default position in the family courts, as it now is in the Court of Protection. The reply was that judges, lawyers and others were rather stuck in the past and uncomfortable with change, and do not always make reasoned objections to more openness. He said that people had preached ‘Hell and Damnation’ about his transparency guidance issued in 2014, but ‘the Family Court did not collapse’. He gave an example of a blogger visiting a court, being challenged ‘and having the patience to explain, well, actually, she was entitled to be there and this came as seemingly surprising news for the court’. (We have not been able to discover who he is referring to here, because bloggers aren’t currently entitled to attend a family court, although journalists are.) He concluded that he would not predict that in the future the family courts would be held in public, but he would not be surprised if they were.
Following on from the last point, journalists referred to newer judges such as Williams J and HHJ Wildblood being helpful in encouraging media attendance. Sir James agreed that a new generation of judges did appear to be more willing to engage with the media than in the past. There was quite a bit of discussion between Sir James and various journalists about publicity and divorce cases, with reference to the differences of opinion amongst certain High Court judges on this. Sir James reiterated his belief that s 12 of the Administration of Justice Act 1960 was now obsolete and unworkable (see further below regarding Louise Tickle’s new project).
Asked about the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Sir James was extremely critical of the lack of clear information for litigants in person, and that little was being done to manage expectations in the way lawyers used to do. He also engaged in some discussion about the need for modernisation of divorce law.
OPEN FAMILY COURT PROJECT LAUNCHED
Journalist and Transparency Project member Louise Tickle has been awarded funding from the Paul Hamlyn Foundation Ideas and Pioneers Fund. In her opening blog post Louise says that ‘The project is planned as a collaborative exploration of how to recalibrate the balance between privacy in family courts – which exists for the very good reason of protecting vulnerable children – and freedom of expression, which allows people to speak out publicly about what the state has done to them, a right currently hobbled by the Administration of Justice Act 1960.’
Louise will be running a series of consultative events and workshops over the next nine months, drawing on the knowledge, experience and insights of family members, care leavers, social workers, adopters, foster carers and legal professionals. Louise hopes to facilitate an environment where participants can creatively challenge existing ways of thinking about how to deal with privacy and freedom of speech. Louise will begin organizing the workshops in earnest in September – and she promises cake to attendees. More information about the project can be found at www.openfamilycourt.wordpress.com or by following the dedicated twitter account @openfamilycourt. Louise also now writes a new regular quarterly column in Family Law – see ‘When a journalist comes to court – lower those hackles’ in August  Fam Law 957.
FORTHCOMING PUBLICATIONS AND EVENTS
The Transparency Project is finalising three Guidance Notes for use by families and professionals working with them. The Guidance Note series tackles particular recurrent issues which confuse or bother litigants (or professionals) involved with family law or family court issues, and aims to explain them in clear language that can be understood without a law degree. We hope the Guidance Notes will form a useful focal point for constructive communication between families and those supporting families (whether legal or social work professionals or other support services or individuals). The new Guidance Notes, funded by the Legal Education Foundation, are on the following topics:
- • Expert evidence (The use of experts in court proceedings involving children);
- • Domestic abuse (How do family courts deal with cases where there might be domestic abuse or child abuse?); and
- • Common law marriage (The rights of unmarried couples and the myth of common law marriage).
We are planning a launch event in the autumn around the domestic abuse guidance note through which we hope to facilitate challenging but constructive dialogue between participants from a range of different perspectives on the vexed questions of allegations of domestic abuse and the responses of the family justice system to them. Watch this space – details will be on our website soon.
By the time this article goes to print we hope to be announcing the appointment of our new Project Co-Ordinator, funded by the Legal Education Foundation. At the time of writing applications are rolling in.
A PARTING GIFT
As we went to print we were sent a copy of draft PD 36J under which our proposal to permit legal bloggers to attend family court hearings on a par with journalists [see  Fam Law 1267] has been adopted by the Family Procedure Rules Committee and a pilot will commence on 1 October 2018. Details can be found at www.transparencyproject.org.uk/legal-bloggers-pilot-announced. Reporting restrictions will still apply just as they do for journalists but this does have potential to impact on the transparency and accuracy of reporting of family court cases and family law. When we initially put forward our proposal Sir James described them as a ‘no-brainer’ and this must have been one of the last documents he approved before retirement. More in next month’s column.