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Transparency: an open and shut case — or be careful what you wish for?

Three recent blog posts have engaged with the pressing issue of transparency in the family courts, and the gap between our expectations of fair and accurate legal coverage and the sometimes harsh reality of journalistic scrutiny.

How not to make a reporting restriction order

The first of these posts is by Louise Tickle and is entitled How not to make a reporting restriction order. It concerns a family court hearing in Portsmouth at which journalists had asked the court to relax the existing statutory reporting restrictions, having given notice in advance, while the parties, without giving notice, sought to increase still further the restrictions. The judge ruled in accordance with the parties’ wishes, but was reversed on appeal. Until recently, although the Court of Appeal’s judgment was published as In re R (A Child) (Reporting restrictions) [2019] EWCA Civ 482, that of the judge down in Portsmouth had not. Eventually, thanks to the efforts of Louise Tickle, it is now available. It has a different name, Person A v Southampton Local Authority, and, not being a judgment, no neutral citation.

Tickle in her post is critical of the judge and the lawyers. You can hardly blame her. As a journalist she has been struggling to open the eyes of the public to what is happening, often ‘behind closed doors’ as the saying goes, in private hearings at which some of the most drastic state interventions into private family life are ordered, under a cloak of anonymity. This doesn’t just protect the family members caught up in the case, but also shields from scrutiny the professionals and public bodies responsible for child protection. In this case, they even insisted material already in the public domain, including the detail in an earlier published Court of Appeal judgment, should be suppressed.

‘No evidence was advanced at all as to how the ages, ethnicities or the names of professionals who had been involved would in fact lead to an unacceptable risk that the family would be identified. Essentially, the barristers simply asserted that their various clients were worried that identification might occur as a result of these facts being published.’

The judge did not ask for such evidence, accepting counsel’s assertions. Nor was there any balancing exercise between the article 8 right of privacy and the article 10 rights of freedom of expression, under the Human Rights Act 1998, as required by the leading case of In Re In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593.

A professional discourtesy

In a post entitled A professional discourtesy, Lucy Reed examines and reconsiders her initial reaction to Tickle’s comments on the conduct of the professionals in the case. She recognises that among the lawyers there is an unspoken conventional reluctance to draw attention to professional failings:

‘To a large extent all professionals operating within the family justice umbrella have come to rely upon the incidental protection that comes from the privacy that exists to protect the children involved. I include myself in that even though I advocate for greater transparency. In common with all my colleagues no matter how skilled they are, I have had many cringeworthy moments I’m quite glad the public don’t get to scrutinise.’

She initially regards Tickle’s criticism as ‘strident’, but ‘whilst my defensive instincts are aroused to defend a colleague in circumstances where I know it may be more complicated than it appears at face value — I’ve struggled in reality to defend the words I’ve read in the transcript without descending to speculation about what might explain or mitigate the submissions made.’

In this case, Reed has to concede that Tickle’s criticism of the advocacy in this particular transcript are hard to challenge. The transcript brings home to Reed how awkward it can be to witness less than impressive practice, not so much as a journalist, for whom there is less of a conflict, but as a legal blogger who is, by definition, a fellow lawyer. Nevertheless, that is an aspect of the current Legal Blogging Pilot that needs to be addressed:

‘Legal blogging has never been presented as the whole solution to the information vacuum or the problem of imbalance in reporting of family courts — but these emergent ethical dilemmas are topics we should acknowledge and discuss and work through if legal blogging is to have credibility and if it is to reach its potential. If and when I do encounter something less than fluffy and impressive I will have to wrestle with that conflict and decide whether I have a responsibility to say frankly what I’ve seen even if it is excruciatingly difficult and anathema to all my lawyer instincts to do so. Not looking forward to that.’

While recognising that a journalist will necessarily view the proceedings in court through a different perspective to that of a lawyer, Reed not only accepts but enthusiastically welcomes and actively promotes the growth of transparency in the family courts. The scrutiny may be painful and embarrassing, but the best disinfectant that sunlight is said to be can sometimes sting.

Why I no longer support opening up the family courts

The danger is that some parts of the media will abuse the trust placed in them to act responsibly as the ‘eyes and ears’ of the public, and become instead the wagging tongue of gossipy prejudice and spin. We have seen this almost wilful mischaracterisation of attempts to protect vulnerable or incapacitous parties in the Court of Protection, with prurient headlines about ‘the woman who lost her sparkle’ and wrongheaded interpretation of a judicial remark on the ‘husband’s human right to sex with his wife’. And now in a family case, in which she was herself involved as a lawyer, Sarah Phillimore has been so horrified by the way the case has been presented in the popular press that she has written a post on her Child Protection Resource blog declaring Why I no longer support opening up the family courts:

‘I sadly don’t think the majority of our journalists have the will or the ability to report on family matters in any other way than sensationalised click bait. And this hurts people. It doesn’t ‘shine a light’ on the system or increase public understanding. It’s just the 2019 equivalent of the stocks or the ducking stool.’

Phillimore has in the past been a strong supporter of transparency in the family courts and, as a barrister, gave her time to appear pro bono for Tickle in her appeal in the case mentioned above. But the way the press have abused the trust placed in them in this latest case of hers, which she declines to describe in any detail for fear of adding to the harm done, has persuaded her otherwise.

‘I will no longer agree to the publication of any judgment in a case where I act, unless and until I can see some recognition from our Fourth Estate of the power they wield, and the harm they do.’

The case in question was one where the judge had gone out of his way to praise the efforts made both by the mother and the local authority to keep the family together; but, sadly, he concluded that it simply wasn’t possible and that the baby whose fate lay in the lap of the court should, after all, be adopted. The accurate report of the agency journalist who covered the case was twisted, notably in one newspaper, into what Phillimore described as ‘slut-shaming’. Rather than concentrating on the judge’s praise for those involved, the reports foregrounded the number of previous children the mother had had, with one headlined ‘BUMPER BROOD Mum who had seven kids taken away by social services is pregnant AGAIN with baby number eight’.

‘Time and time again I see gleeful reporting of women who have had children removed as just some kind of shameful baby making machines. But these are real people — with real children.’

In this case the mother, said Phillimore, was ‘distraught’ at the way the case had been reported. Her furious disappointment is palpable. But I can’t help feeling that part of Phillimore’s ire stems from the very creditable feeling of a lawyer anxious to do the best for her client, and torn by a sense that the very transparency for which she was once such a keen advocate has only added to the family’s woes in this particular case. Commenting further on Twitter, she has highlighted the ‘core of misogyny and prurience at the heart of so much reporting’ of this type of case.

Justice visible

That antiseptic shaft of sunlight can certainly sting. But the illumination it brings is not designed to show up the people caught up in the system. It’s designed to show up the system itself. Open justice is justice visible. The window may be smeared with the odd bit of smut, but without the window we are left in the dark about what the media like to characterise as ‘secret justice’ done ‘behind closed doors’. That is the charge against which Sir James Munby railed in 2013 when, as newly appointed President of the Family Division, he promoted his transparency agenda. It’s what the Transparency Project, of which all three of these bloggers are or have been members, was set up to deal with. Moreover, as Lord Atkinson pointed out in what is still, more than a century later, the leading case on open justice, Scott v Scott [1913] AC 417, 463:

‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

The discomfort of scrutiny is not confined to the litigants. As the blog posts from Tickle and Reed also demonstrate, transparency can shine a light on bad practice, both among the legal profession (from judges downwards) and among the other professionals, including social workers, doctors, police and expert witnesses. No one is immune. But with transparency comes responsibility, and this is where the ethical dimension may require us to take pause, and wonder if we really have got the balance right. It’s a debate we will continue to have for some time to come.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice

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