This blog post originally appeared as an article in the June 2019 issue of Family Law  Fam Law 694.
As we write this column just after Easter we are peering through the window to things happening over in the civil jurisdiction whilst waiting for the President of The Family Division to issue his draft transparency guidance for consultation, as promised. Over yonder, CPR Part 39 has been amended so as to bolster the open justice principle (by tightening up the rules relating to when a hearing may be in private and when anonymity orders may be made) and to expressly include a video link or phone hearing in the definition of a ‘hearing’, with the effect that the general right of the public to attend such hearings is now clearly applicable to them. No doubt this has been prompted by moves towards the doing of justice via remote means, but quite how it is to be made into reality where an interested member of the public or a journalist wishes to ‘attend’ a digital or audio hearing is anyone’s guess. In other news, the Society of Editors, local journalists from the West Country region and HMCTS have participated in the first in a series of regional round tables to ‘promote court reporting’. It’s unclear whether this event or the series of sister events that will apparently follow will address the reporting of Family Court proceedings by either the traditional media or legal bloggers in any meaningful way (although we understand that the issue was briefly raised at the inaugural round table).
A civil case with both family and transparency threads that caught our eye was Zeromska-Smith v United Lincolnshire Hospitals NHS Trust  EWHC 552 (QB), in which a mother who brought civil proceedings arising from the trauma suffered through stillbirth resulting in a consequent need for psychiatric treatment, where liability for the stillbirth was accepted by the health authority. The court held that neither she nor her children were entitled to anonymity in the reporting of the case. Liability having been conceded, at the outset of the quantum hearing the claimant sought an anonymity order, arguing that personal privacy was essential to her survival in coping with her profound grief reaction and the continuing trauma of her circumstances (she did not argue though that the claim should not proceed in public). The judge adjourned the application for the press to be served and they subsequently successfully opposed the application. The press argued that self regulation against intrusive reporting practices would provide sufficient protection for the claimant and in fact most coverage seems to have been in the legal press with limited mainstream coverage.
The Zeromska-Smith case was heard shortly before new CPR, r 39.2(5) came into force on 6 April. This now requires the court dealing with civil proceedings to publish any orders permitting anonymity or providing for a hearing to be held in private on the judiciary website by way of notification of those who would seek to exercise Art 10 rights (except where the judge orders otherwise). It would be very helpful if a similar system were in operation where the Family Court makes reporting restriction orders, as opposed to the system depending upon the Press Association Media Injunctions Alert Service (CopyDirect) which is as subscription service and, as such, not accessible to all those who may have a legitimate need to know whether or not reporting restrictions apply to a particular case.
In Family Court related news in Parliament, MP Louise Haigh called upon the Justice Minister to hold an inquiry into the Family Court, saying:
‘So many victims of child sexual abuse have spoken out about their horrendous experience of family courts. So what consideration is being given into a full inquiry into the treatment of domestic abuse and violence against women and girls in the family courts’.
Louise Haigh’s call follows increasingly vocal calls about such perceived injustices by MPs and other public figures, including Jess Phillips MP and the Victims Commissioner for London, Clare Waxman. The Minister’s response to the question in the House did not suggest such an inquiry is currently on the cards. One view is that the volume of such complaints about injustice done by the system to victims of abuse and violence is now so clamorous that an inquiry would serve a useful purpose regardless of whether or not it substantiated such complaints because the complaints themselves are impacting upon public trust and confidence and because public debate is often hampered by privacy, with the result that it is conducted without a robust or meaningful evidence base.
We hope by the time you come to read this column, news will have reached us of the President’s consultation and an extension of the Legal Blogging Pilot, to enable an evaluation to take place. It’s important that there are proper evaluations of such adjustments before changes are embedded permanently or before further change is considered. Notwithstanding that we have only had a limited opportunity to test out the opportunities offered and challenges presented by the pilot scheme, we have learnt a lot from our early participation, and we hope to have some useful suggestions as to how the potential of such a scheme can be maximized in the longer term, and as to how it can be made to work as smoothly as possible with minimal disruption to those involved in the cases upon which it touches. We’ve found it both interesting and challenging and there will clearly be practicalities and points of principle to work through in the longer run if the scheme is to be extended. If it is extended we would very much like to encourage others to try their hand at attending under the pilot and letting us know how they get on. If you are considering having a go but unsure of your footing, please do take a look at our dedicated legal bloggers information page or get in touch. It is an unfamiliar experience, but it certainly isn’t as nerve wracking as your first day in court or as petrifying as it is for your clients to be sat at the back of court watching it all happen!
As ever, if you would like to turn your hand to writing something for a non-lawyer audience, to help them understand a particular case or family legal issue, do please get in touch.
Chair, The Transparency Project