We’ve just noticed that a revised version of this lengthy document (566 pages!) has been issued online, so we looked for any references to transparency. What we found is brief and out of date. The preface by Lady Justice King explains that the book is a ‘living document’, subject to constant revision, so we are going to write to the Judicial College to ask them to take our comments on board. The book is described as aiming to:
‘increase awareness and understanding of the different circumstances of people appearing in courts and tribunals. It helps enable effective communication and suggests steps which should increase participation by all parties. This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It is full of practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate. There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.’
The only guidance we could find directly relevant to our area of interest appears on pages 82-83, as ‘Reporting Restrictions’. The first paragraphs refer to reporting restrictions in the criminal courts and usefully mention that the current guidance is due to be updated and reissued by February 2022. However this covers criminal justice only.
There is a whole chapter (Chapter 2, pages 45-109) on children, families and vulnerable people. Para 104 says:
‘Even when assured about reporting restrictions, children and vulnerable adult witnesses remain concerned that enough detail will be published to make them identifiable, especially in small communities.’
However, there are only a couple of paragraphs on children in family courts. The first says:
‘The Family Courts: Media Access & Reporting (President of the Family Division, Judicial College and Society of Editors 2011). This summarised the current position and further guidance was issued by the President of the Family Division in October 2019.’
We think this is misleading because although the 2011 guidance did summarise the correct position ten years ago, it doesn’t now.
The second paragraph says:
‘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. Similar concerns were expressed in a follow-up report in 2014.’
Again, this is misleading. In a research study in 2010, most of the 50 children who participated did indeed indicate that they thought that children in family court proceedings would be less willing to talk to a clinician if there was likely to be a media representative in court. Those children were not asked directly about their own experiences. The research report reasonably concluded that, in general, children being informed of possible media coverage might inhibit them in giving evidence or trusting professionals who were trying to help them. However, the report did not say it ‘found’ anything about 96% of all children who have been subject to proceedings, as this summary implies. (The 2014 report, with a smaller set of children, was concerned with their perceptions of the risks of identifying children in judgments published on BAILII, rather a different question.
In the subsequent 10 years, it has become apparent that children are not routinely informed of this possibility, nor even that judgments about them might appear on BAILII. We are therefore puzzled that this brief guidance to judges seems to be conveying an inaccurate message that does not align at all with the 2019 guidance referred to. (Incidentally, neither this 2019 guidance nor any of the other sources cited are fully referenced, although there are other references at the end of the Chapter.) ‘There is still a lively debate’ suggests that this section was completed before the publication of the President’s Transparency Review in October this year. However, we don’t think the overall impression given here that journalists are unwelcome in family courts is fair or helpful to anyone concerned. Journalists have been entitled to attend most family court hearings, even though they are held in private, since 2009. The ETBB also does not refer to the equivalent entitlement of legal bloggers to observe such hearings, which has existed since 2018.
Paragraph 97 states that ‘Family cases are ordinarily held in private and with anonymity orders in place’. Strictly speaking, this is not correct either. Family cases are ordinarily held in private, and there are restraints on identifying subject children or on reporting the substance of hearings concerning them, but these are by operation of statute and do not usually require orders to be made. In cases which don’t relate to children the position is less clear, and anonymity orders are generally only made where the media are interested in the case (typically celebrity divorce cases). In the rare cases where a judge publishes a judgment from a family case it is right that the parties will almost always be anonymised and the rubric at the top of the judgment which prohibits identification of the family discussed in the judgment is, in effect, an anonymity order – but again, judgments are not ‘ordinarily’ published at all. Moreover, the position is currently undergoing some flux in light of the Transparency Review and proposals for the removal of anonymity in financial remedy proceedings.
Although there is a section on the Court of Protection (pages 150-161) there is no reference (that we can find) to reporting from the Court of Protection and the judge’s role in ensuring that individual people subject to CoP proceedings, and their families, are made aware of the nature of restrictions and ‘transparency orders’. This is surprising, given the enthusiasm of the lead judge, Hayden J and the work of the Open Justice Court of Protection Project.
We may of course have missed more relevant sections for judges dealing with publicity-privacy issues, as the document is so long. If any of our readers think we have, please let us know.
As well as issues relating to transparency, there are a few other factual errors relating to family courts more generally:
For example, the ETBB states that ‘One of the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is that public funding in civil and family cases, and in tribunals, is now available in only exceptional circumstances’ without acknowledging that legal aid is available for all parents involved in care proceedings.
The ETBB has been updated to correctly state that ‘Victims of domestic abuse are now automatically deemed vulnerable‘ in light of the coming into force of section 63 Domestic Abuse Act 2021 (although it does not correctly follow the language of the Act which is carefully applied to a person who is a ‘victim, or is at risk of being, a victim of domestic abuse’ i.e. it covers situations where abuse has already been proven and those where no finding or conviction has yet been made, and acknowledges that uncertainty where applicable).
We’ve also noticed that the book refers in a number of places to ‘care and family courts’, as if there are two distinct courts, which is of course not the case. There is no such thing in England and Wales as a ‘care court’, just a single Family Court.
Overall, even allowing for the fact that certain sections are repeated under the discrete sections for each type of work, the extraordinary length of this guidance perhaps only adds to a perception that judges are so remote from ordinary people that they need substantial support and detailed explanations about how the rest of us go about our daily lives.