This blog post originally appeared in the August 2018 issue, [2018] Fam Law 957.
Criminal courts are open to all, and lawyers barely bother to glance up when a reporter shuffles into the press bench. Decide to drop by a family court, though – which in almost all circumstances, journalists are just as entitled to do – and it can be like a klaxon’s just gone off. Even when the local authority involved knows I’m going to be there – sometimes, as a courtesy, I will tell the press office in advance – among counsel instructed by children’s services, there’s often a distinct tightening in the muscles when they glimpse me across the waiting area. It’s like a physical bracing – combatants gearing up in case there has to be a fight. With the barristers representing the parent or children’s guardian, the tension is a notch lower; clearly, there are no corporate reputational issues at stake. But they are, understandably, protective of their clients’ welfare.
Given that a district or circuit judge is unlikely to have been in the position of having a journalist asking to report what’s going on in their court, and they’ll need to hand down a well-reasoned and defensible decision to any request to relax reporting restrictions, they’re likely to be anxious too. So while it might be an exaggeration to say that everyone’s running scared, it’s probably fair to say that nobody’s in their happy place. (Hastily, I must put on record that no judge in Bristol or Newcastle – the two areas I’ve reported from – has ever questioned my right to attend. One – who will always be my hero – tactfully rejected objections made on the most ludicrous of grounds by a children’s guardian – a moment that makes me fizz with fury still.)
As I hang out in the waiting area with the local authority and Cafcass lawyers, I can almost read the thoughts whizzing through their heads. Will they need to block this reporter’s attempt to describe the not-so-very-marvellous stuff their client has done? The journalist is likely to be there, after all, because actions have been taken that the family involved believe to be harmful, incompetent, wrong – even unlawful. Will the media want to identify the council – which actually, under the President’s transparency guidelines would be the expected course of action in any published judgment and, unless a specific restriction is imposed, is also the norm in press reporting of a family case. And then – proper scary monster time – what if the journalist wants to interview the family involved? Beyond the polite handshakes and lip-sticked smiles, I have watched as lawyers’ hackles rise. Sometimes, before and between court sessions, I have been talked down to in the unattractively insistent and ever-so-politely combative manner I’ve noticed some barristers adopt: it would be funny if it weren’t so disconcerting and – importantly – disempowering.
Because – remember – the court arena is your comfort zone, not mine. You can draw on extensive legal knowledge and years of professional experience as an advocate. I can’t. It’s only in the biggest cases that media organisations will instruct counsel, so when a journalist pitches up at a family court, we’re essentially litigants in person.
Once in court, you’re at the front, confident in your right to fight my right to freedom of expression, or indeed the family’s wish to make public what has been done to them. By contrast, I don’t know when to stand up to make my case, or even if I may. Do I put up my hand? Wiggle my eyebrows to indicate I’d like to have a word? This may sound ridiculous. But from my point of view, it feels like taking a bus when you’re unsure of where to get off. You peer uncertainly through the window, then watch as your stop zooms by: I could perfectly well miss my chance to put my arguments without realising when I should have grasped it.
Even if I do get to make my case in court, do you think I’m sure of my ground? I’m not. And on my feet, in the moment, my heart hammers, my breathing quickens, and it’s only my indignation and outrage that anyone should try to stop a journalist from doing her job that propels me on. I’m never confident that I will marshal my arguments well enough to make a strong case under that sort of pressure, against what is, to be blunt, the power of the state – which can afford your expertise. For the most part, the media cannot.
It has often struck me that when everyone should be trying to find a safe and good solution to a problem that, at its heart, is about protecting a family’s privacy – never a council’s reputation – while holding the state to account, the ‘fighty’ and also highly formal nature of the whole court set-up just feels utterly daft.
In any other professional situation where there are potential sticking points, people, you know – talk. Sometimes just between themselves, and sometimes with the eventual arbiter on hand, but generally in conversational tones, across a table round a cup of coffee, aiming to reach a solution that works as far as possible for all. At least, that’s where they start from. So why all this theatre? Why don’t we all just have a normal, professional conversation where, yes, we thrash it out, but in a collaborative way, as a discussion, rather than hurling out our arguments to be beaten down by the other side?
Actually talking to each other, rather than at each other, would make us more accountable for what we assert as well. This would make for more robust and ethically justifiable solutions to the scrutiny/privacy issues. In articles I write, for instance, I’m not allowed simply to state a ‘fact’ without evidencing it. Even in opinion pieces, I must show there’s a factual basis on which I’m drawing my conclusions. But in court, I’ve heard barristers – hopefully under instruction – simply state as fact that naming a local authority would identify a family. I want to jump up and go, ‘okay, explain a likely mechanism for how that would work’. I’m open to there being one. But the court arena is not a discursive environment, so that’s a conversation that can’t be had.
If we did discuss the issues at hand, I could ask the question and the lawyers could – or maybe couldn’t – reply. It would be so helpful if we could move beyond simply stating what one’s position is: ie ‘I want to name this local authority’ or – from the other side –’I don’t want the media to be able to say that this is about a seven-month-old baby’. Why can’t we thoroughly explore those positions and the reasons for them, and work out how much can be safely achieved in terms of allowing a reader to understand the impact of what has happened on a particular child and their family. Some – admittedly not all – issues would be resolved in this way far more quickly than they currently are, and I’m willing to bet that over time, we would all, journalists, lawyers and children’s services, understand each other – and the case law on when a reporting restriction may be justified, or indeed challenged – so much better.
I know that lawyers often negotiate with each other before going into court, but I have never once been invited to have a collaborative, everyone-working-together conversation with the parties’ lawyers in a family case, even when serious issues of local authority wrong-doing have either been admitted or been found to have occurred. But as citizens who all, one presumes, believe that a free press is better for us all than a hobbled one, we should be trying together to find interesting and creative ways forward to allow scrutiny while protecting privacy.
I can hear this coming across as all very pious and right-on, but it absolutely can be done. I know this, because with support from some exceptional lawyers, and thanks to sensible rulings from judges who have done careful balancing exercises, I’ve written stories that have achieved both objectives. Crucially however, I don’t think, in many cases, it needs to take as remotely as long as in my experience it has done to reach that point.
The press – for the moment, though who knows how long we’ll be able to afford to – delivers a non-publicly funded public service that, at its best, supports society’s healthy functioning. So I really do hope that (publicly-funded) family lawyers are advising local authorities who want to restrict citizens from knowing when and how the state has messed up that both the law and morality won’t allow it. There are so many good reasons for this that one would hope senior local authority officers (at the very least) would get it, though from experience I am not confident that they do.
Try living in a country without a free press, I want to say – I spent nine months supporting journalists in one of those – and with all the faults of the British media, see if you like it better. Also, see if you think public officials do their job better without reporters being able to tell the public when things have gone wrong. Would anyone, really, prefer not to know when there are failings in the health service that they and their family depend on? Or not to find out that there’s corruption or fraud in the City on whose integrity our banking sector relies? Why should children’s services get a free pass? It is shocking hypocrisy when anyone who works in public life attempts to stifle scrutiny. When it comes to trying to shuffle off accountability for actions which, whether unintended, negligent or worse, have harmed children’s welfare, the attempt is despicable.
While s 12 of the Administration of Justice Act 1960 remains in place – and I think it needs to go – everyone working in family law needs to get better at knowing what is and isn’t a lawful basis on which to ask for a reporting restriction to be retained or imposed. Journalists too need to make more efforts, when it’s in the public interest, to challenge the ban on reporting the details of what goes on in family courts. Meanwhile, a lot could be achieved by lowering those hackles. We don’t all have to be gladiators. We can at least begin with an exploratory chat. In the deathless words of Bob Hoskins in the BT ad, ‘it’s good to talk’.