Transparency of family proceedings

Transparency in the family courts.

Journalists to be given more freedom to report on family court hearings as current system 'not sustainable'

Journalists will be able to report much more detail about what they witness in England and Wales’s family courts under new plans to improve transparency.

Family courts president Sir Andrew McFarlane (pictured) has found the current system in which journalists can attend any hearing but not always report what they observe without making an expensive application to the court is “not sustainable”.

He called for a “major shift in culture and process” to improve transparency and pledged “clear and firm leadership” to ensure this happens.

“…the time has come for accredited media representatives to be able, not only to attend hearings, but to report publicly on what they see and hear,” he said.

“Any reporting must, however, be subject to very clear rules to maintain the anonymity of children and families, and to keep confidential intimate details of their private lives.”

‘Chilling effect’ on family court reporting

Sir Andrew’s transparency review said the work of the family court is “of significant importance” to society but is not currently subject to effective public scrutiny.

This has, in part, come about because journalists fear being held in contempt of court for reporting proceedings and so avoid covering them to a significant degree in case it is a waste of time and money.

“Justice taking place in private, where the press cannot report what has happened and where public information is very limited, is bound to lead to a loss of public confidence and a perception that there is something to hide,” Sir Andrew said.

Sir Andrew said he had heard of the “chilling effect” restrictions in Section 12 of the Administration of Justice Act 1960 has had on the reporting of family cases, which restricts the publication of information relating to proceedings in private, and urged Parliament to review it in favour of something more fit for purpose.

He said: “Section 12 is a somewhat opaque provision, and the fear of breaching it and the costs involved in litigation have acted as a major disincentive to journalists and others reporting on family cases.”

The Family Procedure Rules Committee can put in place rules that mitigate the effect of Section 12, however, he said.

Sir Andrew proposed reversing the presumption that something cannot be reported, to a presumption that it can, although it would remain at the discretion of individual judges whether non-parties to a case should be excluded.

He also said anonymity of the children and the family in court reports must be maintained and he will produce guidance on how to achieve this.

The new system will start with a trial run in two local authority areas, one urban and one rural, to make sure the changes work well and any issues are resolved before a national rollout. This will be monitored by the Transparency Implementation Group Sir Andrew intends to appoint to lead all the changes.

Consideration will be given to whether a family court reporting pilot framework developed by journalist Louise Tickle with support from the Bureau of Investigative Journalism and funding from the Rowntree Foundation should be adopted as part of the changes.

‘Relationship of trust’

Sir Andrew said he would establish a media liaison committee comprised of journalists, media lawyers and judiciary which would be part of work to establish a “relationship of trust and confidence”, helping to ensure reporting is “reliable and well informed”. In addition the president should establish links with the Society of Editors while, nationwide, there should be better links between circuit judges and the local media.

Sir Andrew cited the words of former Family Division president Sir Nicholas Wall who said 15 years ago: “There should be an ongoing dialogue with the press and the media generally about family justice and how it is administered. We, the judiciary and the practitioners, have nothing to fear from public scrutiny: indeed, we should welcome it.

Sir Andrew said: “I agreed with those words at the time and they remain just as valid today.”

He also said: “There is understandable and justified concern amongst family judges and magistrates that media reporting may result in journalists distorting or misunderstanding the court process in order to produce a ‘good story’ which is neither accurate nor justified by what took place in court.

“It will be necessary to monitor the reporting, both locally and nationally, and, where clear misreporting occurs, for it to be taken up with the relevant editors. In this regard both the limited trial run and the establishment of a forum for discussion between the family judiciary locally and nationally will be important.”

Amid several other proposals, journalists and bloggers should be given access in advance to court lists identifying the general nature of the proceedings, the category of hearing and a time estimate. Currently they can often only see the case number and initials of those involved.

Judges will also be asked to publish anonymised versions of at least 10% of their judgments each year – although still a low percentage, this would be a “very significant” increase in current output.

As it stands, the number of published judgments has fallen from 222 in 2015 to 87 in 2019.

Family members will also be freer to speak to journalists without fear of being held in contempt.

The Bureau of Investigative Journalism’s managing editor and chief executive Rachel Oldroyd said: “The ability to report on this crucial area of the justice system has been too difficult for too long.

“As a society, we should be able to see more of this process that goes right to the heart of the role of the state in family life and relationships. We at TBIJ welcome the chance to explore how that reporting could be done carefully and sensitively in the public interest.”

Picture: Courts and Tribunal Judiciary

Transparency in the family courts. ... This Guidance (together with similar Guidance issued at the same time for the Court of Protection) is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.16 Jan 2014

Courts and Tribunals Judiciary | Transparency in the family courts

https://www.judiciary.uk/publications/transparency-in-the-family-courts/

European Parliament on family court gagging orders, pp. 42-45:

http://www.europarl.europa.eu/RegData/etudes/STUD/2015/519236/IPOL_STU(2015 )519236_EN.pdf “5.4. Transparency of family proceedings The English courts have been acutely aware of the need for transparency in family law proceedings, and the obligation to ensure that justice is not only done, but that it is also seen to be done. It has been a topic that has been the subject of many high profile campaigns by not only families, but journalists and politicians also. As a result, there have been several influential cases decided in the past five years on this topic, as well as Practice Guidelines set out by the President of the Family Division, to direct courts as to how to approach this issue. 5.4.1. The legal framework Section 97(2) of the Children Act 1989 provides that: No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify – (a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child … 213 Department of Education “Advice on Placement of Looked after Children Across Member States of the European Union” (January 2013) 6. 214 Ibid., 7. 215 Ibid. Adoption without consent ___________________________________________________________________________________

43 This prohibition lasts only until the end of proceedings, at which stage restrictions are lifted. However, care proceedings and adoption cases are also covered by s12 of the Administration of Justice Act 1960. So far as is material, s12 provides that: (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say – (a) where the proceedings … (i) relate to the exercise of the High Court with respect to minors… (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication. The protection afforded by s12 is without limit of time. In January 2014, the President of the Family Division issued practice guidelines concerning transparency in family courts and the publication of judgments concerning children. These guidelines direct that in any judgment concerning care proceedings or adoption, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published.216 The Guidelines state that in all cases where a judge gives permission for a judgment to be published: (i) Public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named; (ii) The children who are the subject of the proceedings in the family courts, and other members of their family, and the person who is the subject of proceedings under the inherent jurisdiction of the High Court relating to incapacitated or vulnerable adults, and other members of their family, should not normally be named in the judgment approved for publication unless the judge otherwise orders; (iii) Anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.217 If any party wishes to identify himself or herself, or any other party or person, as being a person referred to in any published version of the judgment, their remedy is to seek an order of the court,218 which has the power to either extend or relax the reporting restraints.219 216 Practice Guidelines, Transparency In The Family Courts: Publication Of Judgments (January 2014). 217 Ibid., [20]. 218 Ibid. 219 Re J (A Child) [2013] EWHC 2894 (Fam), [22]. Policy Department C: Citizens' Rights and Constitutional Affairs ___________________________________________________________________________________

44 5.4.2. The law in practice The English High Court has stated that there is a “compelling need for transparency in the family justice system” that is demanded both as a matter of principle, and of pragmatism.220 In the case of Re J (A Child), Sir James Munby stated: It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism.221 This is particularly the case in relation to adoption. In that same case it was emphasised that: Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction.222 Judges have been acutely aware that they “cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system.”223 Over ten years ago, it was recognised that “[t]his is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential."224 In deciding whether to grant permission for a private judgment to be made public, the court must conduct a balancing exercise to weigh the competing interests engaged under articles 6, 8 and 10 of the ECHR. 225 In doing so, the courts have made clear that the interests of the child, although not paramount in this case, will be a primary consideration. That is, they must be considered first, although the can be outweighed by the cumulative effect of other considerations.226 The rights to be balanced were set out in the case of Re K (A Child: Wardship: Publicity) in 2013. The failings of the local authority in this case were manifest, and the judgement set out “a catalogue of poor social work practice, of failure to engage appropriately with these parents, of failure to keep them informed, of arriving at hasty, ill-informed and flawed judgments about them and of marginalising them.”227 The court noted that, against this background, not only do the parents have a legitimate interest in telling their story, but the public has a right to hear their story.228 In addition, from the media's perspective, as a human interest story there are obvious advantages in the story being told by actors involved in that story.229 However, these interests must be weighed against the child’s right to respect for her private life, both in and of itself, as well as because of the consequent welfare implications that may follow. Importantly, however, the court recognised that this right does not self-evidently justify interfering with or 220 Ibid., [31]. 221 Ibid., [32]. 222 Ibid., [27] 223 Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [103]. 224 Ibid. 225 Re J (A Child) [2013] EWHC 2694 (Fam), [27]. 226 Ibid. 227 Re K (A Child: Wardship: Publicity) [2013] EWHC 2684 (Fam), [79]. 228 Ibid. 229 Ibid., [72]. Adoption without consent ___________________________________________________________________________________

45 restricting the parents' right to be able to tell their story to the media or the media's right to publish, and a balance must be struck.230 In this case, the judge noted “the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system and likewise being able to criticise local authorities and others.”231 He stated that it “would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.” 232 However, the willingness of the courts to permit parents to speak out concerning injustice in the system does not automatically carry with it the right to identify – either through name or picture – the relevant child. While there is “an obvious and compelling need for public debate to be free and unrestricted”233, there is a balance to be struck with the protection of the child’s welfare, which often “imperatively” requires that neither they nor their carers be identified. In the case of Re E (A Child), the court emphasised that neither the public interest in knowing about the case, nor the parents’ claims to be allowed to tell their story, would be advanced by identifying the child. As such, the courts have frequently permitted information to be shared as long as the child’s anonymity is protected. In this respect, in 2009 the Children's Commissioner for England commissioned a several academics to undertake research on the views of children and young people regarding media access to family courts. The report, published March 2010, found that: Children and young people said the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will 'cherry pick' bits of information. They are mostly doubtful that the press will print a truthful story and are doubtful – some cynical – about an educational function. Children fear 'exposure': they are afraid that personal, painful and humiliating information will 'get out' and they will be embarrassed, ashamed and bullied at school, in neighbourhoods and communities. This expectation is not limited to children in rural communities and is particularly relevant for those from ethnic minority communities. They also appear unconvinced about the capacity of laws and adults to protect them.234 As such, there is a need to protect the welfare of children, whilst ensuring freedom of expression and the transparency of the system. This is a difficult line to walk, and the balance has not always been appropriately struck in the past. Nevertheless, there are now clear guidelines to deal with this issue, which must be followed by the courts.” Reference: Dr Claire Fenton-Glynn (2015), pages 42-45, at ‘5.4. Transparency of family proceedings’ in 'Adoption Without Consent’ (Study for the PETI Committee). DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT C: CITIZENS' RIGHTS AND CONSTITUTIONAL AFFFAIRS, European Parliament. Dr Fenton-Glynn is represented by King's College, London. http://www.europarl.europa.eu/RegData/etudes/STUD/2015/519236/IPOL_STU(2015 )519236_EN.pdf Background ‘Adoption Without Consent’ (2015): "05-11-2015 - Fact finding visit to London: 5-6 November 2015 The Committee on Petitions organised a Fact-finding visit to London on 5 - 6 November 2015. The aim of the visit was to meet authorities, practitioners (lawyers, social workers) and other stakeholders to exchange views on the petitions related to interventions by the UK authorities on issues of parental responsibility and allegedly abusive decisions on adoption as well as the placing of children in foster care without the consent of biological parents:" http://www.europarl.europa.eu/committees/en/peti/events-missions.html?id=2015110 5CHE00221