4 Concepts:

• Communication
• Collaboration (team work)
• Change (recognise and accept)
• Committment

New PLO due out 24/6/13, under Pt 36 FPR.

Family Justice Review noted that in Mar 11 average care case duration was 53 weeks. By time of  final report an average of 56 wks (61 in care centres).

Ryder’s role – guiding judiciaries response to the proposals NOT implementing Government policy.

Case Management system continues amended. Bristol stats : Cty Ct 34 weeks, Bristol FPC 30.4.

We MUST make it work.

FJR considered whether courts should be involved at all. This is the last chance for the court system. Time for debate about 26 weeks is past. Its happened. It is the law. Treat it as in force no. Do our utmost to implement overnight.

PLO in force 1 July – 26 weeks = deadline not target.

Family Court will be up and running by December 2013.

Gloucester issues 1100 private law cases, Bristol 1600 (p.a.?) – DFJs to draw submit proposals for structure for the local area by 14/6 – strong argumetn for keeping Gloucester as an issueing court.

New PLO – Day 1 LA to file and serve chronology, threshold, care plan, genogram, assessment and statement. Usually 2 years worth of neglect in a chronology is sufficient.

Thresholds – short with 5-6 allegations maximum. Separate particulars if necessary.

Social work statements – analysis not evidence (I have written “not evidence” in my note, I’m not sure that was said – I think it was my sardonic note to self)

Pre Proceedings Protocol being drawn up for Bristol area – aware some research is not supportive but this is based on mutuality, discussion and agreement. Expectations on both court and LA.

Pre Proceedings work will not be duplicated in proceedings unless necessary.

Structure:

• 1st Case Management Hg Day 12 (FDA).
• 2nd CMH (if required)
• IRH
• Final

LA compliance essential. Importance of pre proceedings work – but must ease path of overworked social worker.

Day 2 evidence (serve not file) with application. Minutes and records by list – disclose on request. Only last 2 years.

Must be sympathetic and realistic with LAs.

Allocation vital. In Bristol there will be a daily team meeting, and monthly meeting with Designated Family Judge (HHJ Wildblood QC) and Nominated Family Judge (HHJ Marston). Any appeals will go to DFJ or NFJ but they are hardly likely to arise.

Draft allocation criteria.

Magistrates – key role in private and public law. For real. Not less interesting work. A proper proportion of both public and private law, a significant amount of public law. In Bristol 23% care work is magistrates court. That will increase. They must be supported and helped by lawyers and judges. It’s no good complaining if you (we?) are not prepared to get stuck in and help. Can’t expect them to perform as lawyers without training.

1st CMH – deal with experts under Pt 25.

Oral information and CV NOT ON. Comply with the rules if you want to be heard. If you don’t I will take it out of the list or list it at 4.30 and that will ruin your day.

In Bristol at CMH we will list final hearing and IRH. We will not list final hearings at IRH stage as in some other areas. We will keep it under review. I acknowledge Bristol research concluded listing early didn’t speed up – but that was under the old PLO. Here we will list at 1st CMH. Do best we can. If don’t eye off ball. (note unclear).

Has been suggested IRH can be after week 20 – NO. It doesn’t allow for an effective IRH. IRH by week 18 if possible.

The DFJ and NFJ’s view is wholehearted support for v strong body of research re delay and impact on child. (note unclear – speaker referring to slide I could not read)

CMS was amended April 1 2013. Judges responsibility to record reasons. Please remind the judge.

Listing is a judicial act NOT an administrative act. If it is left to the parties please nominate one person only to communicate with the court.

Self reporting direction – is now default.

E-filing must be within 48 hours. If you need more time ask at the hearing or within 48 hours. If in default the party responsible will be called to attend court and explain. Just ask

CoA guidance expected (Munby) shortly. TG [2013] EWCA Civ 5 makes clear necessary is a significantly higher hurdle than reasonably required. Also:

• strong case management
• control of evidence essential part of it
• particular responsibility re experts
• support for 1st instance judges – robust but fair
• Hoffmann in Piglowska v Piglowski re exercise of discretion. Appeals – generous ambit. You won’t be overturned unless the decision falls outwith the generous ambit.

Recently discussing with HHJ ? whether a psychologist be report should be limited to 5 or 10 pages. Put what they want in annexes. But need a condensed summary of conclusions.

If you want your head to remain on your shoulders follow local police protocols. Police disclosure may be reason for 2nd CMH.

People must come to IRH knowing what their case is and ready to record what the issues are at FH.

If listed at 10 you must be IN COURT at 10. It is not for the usher to find the parties. Ask for time.

You must be at court when ordered.

Production orders – be realistic about timings.

Placement – there is often a problem with parents who can’t be found to be notified of adoption proceedings. Standard direction at conclusion of care proceedings – parents must keep LA informed of address for purposes of adoption proceedings.

Final hearings – case summaries essential 48 hours before. Position statements required from all parties. Including G.

Bundles proposals – compliance is essential.

Guardian not seeing child and parents cannot be the basis of decision on welfare.

Subgroups -

on LiPs and how to achieve justice. LiPs are not a subculture – they are as entitled to justice as the represented. It is for us to ensure they get it. When I gave evidence it was exhausting, frightening and disempowering.

DJ Watkins – financial remedy subgroup

DJ Howell – private law

Late transfers from FPC – I may send it back.

Email – until the system is changed for judges in Bristol only – send all emails to J and court office. Must use secure email only. Data protection concerns. Subject line to include name of case name of judge and date of hearing.

Email – ONLY send case summary, skeleton, position statement, reports (not statements) which have been received within 7 days of the hearing, and other documents required by the judge.

Email is not a substitute for filing or hard copy. Don’t assume printing by the court. Do not send docs to J on morning of hearing. Send by 12 noon the day before at least. The court won’t print except a small number of pages in an emergency only. Any misuse of the system by any person will result in the facility being withdrawn and the email will be deleted and not read.

Thus endeth the lesson.

I’m freshly arrived back from completing the annual bar survey, which prompted all sorts of deep consideration of life and the future. To respond to the questions I had to tot up how many hours a week I work (don’t ask) and rate my feelings about life at the bar and such things as where I think I might be in 2 years time (cue ambivalent and contradictory responses). Frankly who knows. It occured to me as I box ticked my way through said survey that I could have had four children adopted by then, if only I could gestate them quick enough…

According to all the despondent solicitors I’ve been grimly sipping coffee with this week (actually I’ve been slurping tea but you get my drift), we’ll all be sailing down the swannee in a gravy boat with a corpulent pussy cat and a five pound note. I paraphrase…

You see what happens when my work life balance is all wrong and I’m working too many hours? I’m getting slightly hysterical and surreal. But the problem is we are surrounded by other over worked slightly hysterical family lawyers and the only time we pause for breath is over coffee, when we compare how depressed we are, like Mel Gibson and Danny Glover with their competitive battle scars. It’s not healthy.

But seriously, I have been working too hard. It’s not often I can’t find time to blog and I haven’t lately. Every case I get is a mammoth read. And every brief arrives in the nick of time (if by “nick of time” you mean in sufficient time to allow all the papers to be read without making allowance for cooking dinner, sleep, or generally doing anything between the hours of 7.30am and bed other than work)…Oh how I long for those slender ex parte non mol briefs of my youth.

And by jiminee it is grim talking to family solicitors these days. I’ve listened to a number of utterly dedicated and highly experienced partners talk about how they are working themselves into the ground trying to keep their firms vaguely viable, about how stressed they are with responsibility for employees, clients, families – about how they feel they may no longer be doing good nor even doing “no harm”. I’ve heard an expert opine that “We didn’t come into this work to do shoddy child protection work” (a reference to the new style swift and short expert report). Yes. The froth has gone from our coffee…Even the inappropriate black humour is drying up. The bar (in pockets at least) remain a bit more blissfully distanced from reality. They’re still drinking lattes the fools.

A piece of legal advice – do not have coffee with a family lawyer. Ever. It might be catching.

On another coffee related note, several of the depressed tweeting lawyers (we are legion) have been pondering our next incarnation in a post-bar utopia. Barista was the obvious option since it requires only a small amount of tipex in order to enable us to recycle our business cards. But it lacks creativity. Personally I think my plan to launch a coffee shop replete with photocopy, print and internet facilities for disorganised litigants in person in the vacant shop next door to the Bristol Civil Justice Centre is a stroke of genius, if only because it presents an opportunity to think up mildly (very mildly) amusing names. “Copy Latte” is my fave. Or “Copyteria” or “Triplicup”… I could go on. My skill with words is a key transferable skill you know.

So anyway, in this coffee shop litigants in person (or disorganised and disguised lawyers) could access basic legal reference materials, quickly locate and print an authority from Bailli or wherever, photocopy that massive document they sent only to the judge – whilst the lawyers could use our app to order a coffee and sandwich surreptitiously under the desk whilst the judge isn’t looking (thereby dispensing with the need to take ANY lunch break at all – hurrah). Perhaps if I call my coffee shop a “Hub of Justice” (like Wheel of Fortune only with more arbitrary results) it will attract some social entrepeneurial start up tax relief or an MoJ grant…. (civil servants like HUBS).

Oh and I forgot to say – customers who could prove they had suffered domestic violence would get a free jammie dodger. I need to do some work on my business model and pricing structure but I’m pretty sure that the profit from the latte drinking lawyers could subsidise the photocopying costs of the litigants in person OR that the profits from the hordes of carrier bag wielding litigants in person might enable us to set up a project to feed impecunious lawyers or to carry out conservation work to save them from extinction. One or the other….

I think my Dragon’s Den pitch is really shaping up, don’t you?

“All-ca-ses-must-be-com-ple-ted-in-twen-ty-six-weeks…You-must-com-ply.”

Oh for a sonic screwdriver. Or an alcoholic one. My inbox has steam coming out of its ears.

So. What do we have?

“A View From The Presidents’ Chambers” Part Deux, in which our hero Munby observes that said view is not so much of a distant horizon but a very proximate wall. Or – to depart from my foolish analogies and feeble sarcasm to give you some actual information – in which he tells us all about the revised PLO (or to be accurate the still-being-revised-PLO, since it’s not yet finished). Headlines : the first CMH will take place on day 12. Thresholds will be shorter (e.g. “the parents are flaky”). And (as if this were an idea no-one thunk of before) it will henceforth be the expectation that Local Authority documents will be replete with analysis and assessment will be evidence based. *paddington stare*. There will be new arrangements for disclosure of certain documents by list and on request, whilst others must be provided as a matter of course. So we are to expect Local Authorities to present their cases in shipshape fashion. I wouldn’t argue with that.

In truth, much of this sounds very sensible (although it’s difficult to get a grip on it without seeing the actual guidance), but it remains to be seen how effective it will be if one limb of the family justice system does not keep up its end of the deal. And Munby makes no bones – it’s 26 weeks or else*.

“E-mer-gen-cy-tem-por-al-shift”.

A new PD on Committals in the Court of Protection and Family Division – in essence, hearings may be in private only exceptionally, and where such a course is taken a public judgment must be given setting out the reasons for taking that course, and where a person is committed for contempt of court the court must state publicly the findings made and the punishment given. There is I suspect, some back story to this which I have not had time to pick up on. I don’t know if it relates to this or this or this (although that case appears now to be in the criminal arena).

Following on from the LASPO detonation day on 1 April the Law Society have issued guidance for family solicitors who are now mopping up with assorted unbundled services to clients. The Bar Standards Board have issued new Public Access Guidance in light of the changes announced recently to end the 3 year call rule and the prohibition on taking on clients who might qualify for legal aid, and no doubt in anticipation of a significant post-LASPO increase in the use of public access cases. Incidentally, I’ve written an article in the Solicitors Journal about LiPs post LASPO which touches on issues relating to public access (you need to login to read it in full, but you can get a free 2 week trial).

Baker J on the rare cases that must go outside of 26 weeks here in Devon CC v EB & Ors [2013] EWHC 968 (Fam). See also here. Notable for its acknowledgment of the family bar and solicitors:

“Finally, this case demonstrates again the crucial role played by the specialist family bar and solicitors.  The role played by all of the representatives for all of the parties in this case has been of the utmost importance.  All judges are very concerned at the prospect of an increase in self-represented litigants and the consequences for the family justice system.  Not enough recognition is given to the contribution to the family justice system made by family lawyers.”

Also – see Suesspiciousminds blog on the recent JR judgment wherein the Legal Aid Agency (LSC if you’re old skool) got a slap in the face with a wet fish for arguing they didn’t need to give reasons for refusing prior authority.

I won’t bore you with the assorted local guidance and initiatives – which helpfully fill those tiny interstices between sleep and work just nicely. If we stop we might contemplate, so best keep busy.

Frankly, after all that, I find I have insufficient energy to return to my dalek analogy to wrap up…Save to offer you a quote from Davros himself : “The Children of Time are moving against us, but everything is falling into place” which sounds as if it ought to hold some profound meaning in this context even if I don’t quite know what that might be…pretty much how I feel about each piece of new guidance as it lands… (as you can see the daleks are an analogy brimming with potential, but I’m too knackered to care).

Tell me when I can come out from behind the sofa.

* for “else” read “tribunal”

And the same is true of hospitals, particularly children’s wards. Of which I have had some recent experience. This week, on arrival at the ward with sprog 2.0, and in the course of answering the same series of obligatory questions for the umpteenth time, I gave my husband’s name and, reading ahead to the next question, volunteered that yes, he did have parental responsibility. “Oh no” said the lovely lovely nurse, “He doesn’t have PR if you’re married. Since 2000 he only has PR if he’s on the birth certificate”.

I couldn’t help it. I had to correct him. (Married dads always have PR. Since 2003 (not 2000) unmarried dads can also acquire PR by being on the birth certificate).

It wouldn’t have jarred so much, but the nurse had just given me the admission spiel about the ward rules, which included security – “Don’t let any other adult in to the ward, we have some sensitive cases here and some parents have restricted access (for which read care / child protection / suspected NAI cases, whose babies or children might be removed on discharge), and some of the parents whose children are here long term get quite frustrated”. So knowing who has PR really does matter. And professionals like our lovely young nurse, with the bedside manner that won over my reluctant three year old, really deserve proper training on this issue.

It’s probably not top of the list of priorities for teachers or health workers. But it does matter. And it is really a pretty simple topic to grasp.

It is said that the cost of the funeral will be around £10 million. As I write, George Osborne’s tear is selling on ebay for £10 million – a mere drop in the ocean compared to the recent cuts to legal aid and the level of savings the government hopes it will make (£350 million).

The Guardian Data Blog and the new Moment of Crisis blog have both pondered what else we could have done with £10 mill. They make thought provoking reading. Neither mentions legal aid.

So…

Actually, I can’t tell you how much legal advice and representation £10 million would get you at legal aid rates. I had hoped to be able to give you a snappy stat. But the LSC is now the LAA, and the old labyrinthine but familiar website is gone and replaced with the labyrinthine and sterile justice.gov.uk where I can find even less useful information than even on the horrific LSC website. It’s like looking for a needle in a blindingly white haystack. And it’s late.

But I can tell you this. The same amount of  money we’ve spent on affording respect and dignity to the importance of one person on this one day could cover the cost of representation on many days for many people : making sure fathers are remembered, victims of violence get their dignity back, and that the rights of all are respected.

Today many mourn Thatcher. Others mourn different losses.

But I’ve been thinking about the internal bit a lot lately, because I think it’s the key to working out how to handle that spiky exterior.

Last week I were on t’telly. I travelled all the way up to Salford to Media City, to a world full of producers and makeup artists and green rooms full of pain au chocolat, and I sat on that red BBC Breakfast sofa and tried to pretend I wasn’t petrified. I only had to talk for about 20 seconds, and to answer questions I can happily answer without a thought – when I’m in my comfort zone. I’m told I didn’t look like the rabbit in headlights that I felt myself to be, that I looked calm and collected and sounded reasonable. But looks are deceptive. Like a Dime Bar. Sort of.

On the 6.20am slot, hairsprayed and blushered and eyelined to within an inch of my life in order to disguise the fact I was scarcely awake, I heard myself drawing an analogy between my fish-out-of-water sensations on that sofa and the fear engendered by an unfamiliar environment for a litigant in person. I’m a lawyer, but I’m still petrified here today I said (or something along those lines – when I’m nervous my recall is poor). They had shown a clip of a woman saying she was used to public speaking and she’d be happy to represent herself in court. I didn’t think it was that straightforward – I think it’s about being in an unfamiliar environment where you don’t understand the rules. And I can’t stop thinking about my analogy – because I think I inadvertently articulated something quite important.

As it happens I was able to overcome those feelings and get through my own personal trial without swearing, burping or saying something hideously embarrassing – but we barristers are used to taking a deep breath and then plunging into what we know will be excruciatingly embarrassing submissions that cannot make up for an unsustainable position. We crack on, do our best and focus on our 4 o’clock horizon (not that we ever finish at 4!). It’s not quite the same for a litigant in person who might well clam up, fail to articulate their point or get angry or upset – and who has a vested interest in the outcome. But, all that said, being on telly was way way out of my comfort zone and whilst I may have appeared as a well coiffured armadillo on the outside I was mush on the inside. It’s a miracle it didn’t show, and I suppose some comfort to those in similar circumstances that your nerves might not notice that much.

But I think that all lawyers would do well to remember that feeling – the one you had in the pit of your stomach the first time you mooted or the first time you were on your feet proper (and in my case every time thereafter for the next five years). And remember that if you are a lawyer you have a certain aptitude for advocacy above and beyond the general public. If you want to work towards a resolution of a dispute on behalf of a client you need to try and understand a bit about what it is like to be a litigant in person – to imagine their experience of the process. And frankly, it’s something you should just do, as a fellow human being. It’s called empathy and lawyers should be better at it.

As an aside this experience also set me thinking about the likelihood that in future there will more often be press in court than we at the family bar are presently used to. I am in awe of advocates who operate in open courts, particularly those where there are juries and routinely members of the public and the press. An inadvertent spoonerism or a stumble is embarrassing whenever it happens, but I am used to a limited audience and an audience whose identity is known. Although I support greater transparency, on a personal level I’m apprehensive about being watched – it’s not what I’m used to. I wonder if it will make some advocates choose their words more carefully – and then I wonder if it will affect the ability of litigants in person to engage, to give frank evidence and to articulate their case. I don’t know the answer but that sofa experience, the knowledge of that vast unknown audience, really had a profound impact on me. On one level the oxygen of publicity is healthy, particularly in the case of those who are cavalier about manipulating the truth to their own ends. But it may be stifling for those who are already out of their comfort zone and who are currently helped by knowing that – if nothing else – their very personal issues are private. Some litigants in person will want the press in court to see and report the injustice or perceived injustice, to hear the lies and their rebuttal of them. Others who have important truths to tell may feel unable to tell them. In either extreme lies a danger than neither parent nor child will have access to justice.

Someone (of course) will say that me going on a jolly to Salford and sitting on a sofa talking rot for 20 seconds is not comparable to the experience of a litigant in person, to the experience of a father desperately trying to persuade the courts to let him see his children, in the face of heinous fabricated allegations (for example) – and that it is either foolish or offensive to draw such a parallel. Of course. I haven’t been in that situation. But it did make me think – sh*t, it must be truly terrifying, awful, to have to do this stuff alone, when the stakes are so high and when everyone else but you is totally familiar with how it works. And I am a parent, so I know how blindly passionate we can be about our kids, how terrifying the thought of losing them is. And the fear of financial uncertainty is not unfamiliar to those of us whose income depends on the whim of the Legal Aid Agency.

And those of you whose read this blog will know that I have had my own experience of protracted litigation in which I was, for a time, a litigant in person against whom allegations were made (not a family case and the allegations were not made out – it’s a long story and rather dull). I was legally qualified (although far from an expert in the area of law in question), used to advocacy, and “only” dealing with a litigant in person rather than a lawyer on the other side. Still, the one hearing when I did represent myself – even though I was safe in the knowledge that the court was bound to come down in my favour (it did), and even though I knew I had nothing to worry about – left me jittery, weak kneed and less than my usual articulate self (not least because there were assorted counsel sitting at the back whilst waiting for their case to come on). Based on my sofa experience I guess it probably didn’t show (smooth on the outside), but I didn’t enjoy it. This experience in particular gave me some insight into how litigants must feel when they are defending themselves against unfair or untruthful allegations, or who are faced with litigation brought by an ex who just WON’T give up – even when they are represented. It is draining, irritating, upsetting, frustrating. In my case litigation dragged on for 3 1/2 years notwithstanding its lack of merit (as found by every judge who dealt with it). I didn’t want to be involved in litigation. I wanted to get on with my life and to focus on my kids. But when you are faced with someone who is determined to persist in their fight for what they see as justice you are forced into responding, defending your reputation, correcting errors, stating the obvious. Again and again.

This is what it must be like for many parents. Some will be faced with constant accusations of inappropriate behaviour raised as a barrier to contact, others will be faced with never ending applications for more contact from a parent who is just never satisfied. Mediation in those cases? *hollow laughter* You can’t mediate with the litigant who is “fighting the fight”, who is determined to “win” or to secure “justice”, asssured of his righteousness.

What I’ve learned from this is that there is often a power imbalance in litigation, and one that is somehow enhanced through the process itself – the persistent litigant has control on his (or her) side, and that persistence can grind down the respondent to it, the exercise of control can retraumatise those who experienced it in the course of the relationship. Equally, the primary carer resisting contact has one big card on her (or his) deck – access to the child, and in practice the power to make contact happen or not. In some (many) cases the parents each fit one of those tropes. And it is crucial I think to remember that in some contexts even litigants in person can wield significant power, through manipulation of court process and their very status as a litigant in person, through persistence of litigation – and those are things that both courts and those on the other end of the dispute find very difficult to deal with.

Armadillo means “little armoured one” in Spanish. We need all to remember that a smooth exterior may not tell us what is really going on inside.

But now it’s all the rage. It’s like Gangnam or Super Samurai Power Rangers I tell you (well, in our house anyways). This is the closest to trendy I will ever be.

The Bar Council have this week published their long awaited Guidance for litigants in person, under the headline “We won’t stand by as vulnerable people suffer”. It has been produced in conjunction with various Specialist Bar Associations, including the Family Law Bar Association, and covers general court process as well as specific areas of law. It was gratifying to see the reference in the family section to Family Courts Without A Lawyer. Oh yes people. I have arrived.

But also racing up the charts are The Civil Justice Council, with their Guide to Small Claims for Litigants in Person, produced no doubt as penance for the introduction of the guerrilla term “Self Represented Litigants” which diverted us for the better part of 18 months.

And pop pickers, there’s a Guide for Litigants in Person dealing with Interim Applications in The Queen’s Bench Division coming in at number 3 (a bit “niche” if you ask me ).

Although the first implementation update in respect of the modernisation programme from Sir Ernest Ryder says “The MoJ is working with the Family Justice Council on guidance for SRLs in both children and financial remedy cases”, that was December and there is no mention of it in the second implementation update in February. I may have missed it but I can’t see anything on the FJC or MoJ websites so assume that it is either a work in progress or that it’s been ditched upon realising that there was duplication of effort going on.

We professionals have got Practice Directions and Rule amendments coming out of our ears, but it’s striking that the only Guidance for Litigants in Person specifically dealing with family courts that is available by the date of implementation of LASPO (today) comes not from HMCTS, not from the MoJ, not from the FJB or FJC, not from the judiciary….but from the bar.

[Postscript : Erk. Late night paranoia has set in. Lest there be any doubt in your mind my tongue was firmly in my cheek for the duration of this post - I am not the complete and utter ego maniac I may appear if you were to read it dead pan. As you were...]

I had in mind a sort of black-humour April Fool : LASPO repealed, Jackson placed on hold, Theresa May and Abu Hamza go into shoewear business together – that sort of thing,

But I’m not in the mood. No fluffy bunnies round here.

Legal aid has been done in, and I worked most of Good Friday, and lost an hour’s sleep this weekend. I didn’t even get to gorge myself on chocolate.

Happy Easter. We will be needing those May bank holidays.

But things are changing and have been for a while, notwithstanding the utter failure of government to grapple effectively with this thorny problem (see Children Schools & Families Act 2010). Just take as three examples the recent case of Bristol CC v C & Ors [2012] EWHC 3748 in which an injunction was lifted to enable the naming of a social worker by The Sun, the widely reported case wherein Mostyn J lifted reporting restrictions in a case of interest to Mr Booker (which I blogged about here), and this week, reports of the High Court allowing named reporting of a local councillor’s conviction for being drunk in charge of her toddler daughter in a supermarket on public interest grounds (it appears from the report in the context of reporting restrictions arising from criminal rather than family proceedings), although in that case the facts were not run of the mill, since the Mother was a public official.

Sir Nicholas Wall retired on 1 Dec 2012. By February 2013 the new President of the Family Division, Sir James Munby, had promised to make changes in the area of transparency. In his speech to the Family Law Bar Association in February for example, he said this of transparency:

I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well underway. I hope to be in a position to make important announcements in the near future.

So, whilst we wait with baited breath – what’s the Munby solution going to be?

I’ve been thinking about this a lot – it troubles me. In principle transparency is something we should strive towards – and I don’t think that either judges or professionals think about issues of public interest, freedom of speech and the like routinely enough – the justification for reporting restrictions could and should be more rigorously scrutinised in individual cases. But a statement of principle or aspiration is easy. When you start thinking about the nuts and the bolts it all gets a bit difficult.

Nobody’s arguing for a removal of anonymity for children of course, but the greater the access to court documents and the freedom to report, the greater the risk that children will be deliberately or inadvertently identified or harmed. And it’s not good enough to say that we can trust the press to report responsibly, that dangling the threat of after the event contempt proceedings will be effective either to prevent or more importantly to cure a breach of privacy for a vulnerable child. No, if ever there were to be wholesale disclosure of information to the media in the form of court documents there would inevitably be a much enhanced risk, and one imagines the Attorney General might find himself burdened with yet more contempt applications.

I have argued before that we cannot complain about skewed or tendentious reporting if we do not give the press access to balanced information about what is happening and the different arguments being put forward by all parties. This must in reality include some written material if it is to be effective. But what? There are complicated legal issues about ownership of documents and consent for their release. There would inevitably have to be a change in practice prompted by routine or regular disclosure of documents drafted by advocates – chronologies, position statements case summaries and skeletons – currently the system is not set up to enable advocates to obtain express approval of every word in such documents and that is understood amongst those involved in court proceedings. That nuance would not survive the glare of publicity. Other documents, primary evidence, witness statements etc raise their own difficulties. Will witnesses be discouraged from giving frank evidence? Will the press trawl documents for chain of enquiry leads and use it to investigate other stories about the parties? I’m thinking here about embarrassing items on a bank statement of a celebrity husband for example. These are just illustrative of the kinds of things that need thinking through. The complete list would be far longer…

But there are two really knotty problems to which I cannot presently find a solution : the first is the costs. By all means make more documents available to the press so they are better informed. But who pays? If they are summaries produced for the press and public (like those prepared by the Supreme Court) who produces them, how are their contents agreed and approved and who pays? If they are primary documents who does the redaction and who pays? If there are applications – whether they be applications to lift restrictions or applications to prevent reporting – who pays for the costs of the legal representation that will be essential? It is easy to say that all parties already have legal representation in public law proceedings – but that does not reduce the cost. And it does not help the intervenor who is a litigant in person or privately funded, it does not help the parents in private law proceedings in whom the press is taking an interest, but who do not qualify for legal aid and who can ill afford to divert resources on press applications. In these times of austerity where profit costs are being squeezed ever more even the cost of photocopying documents for disclosure to the press is a thorny issue. I don’t see the LSC, Local Authority legal departments, CAFCASS or HMCTS jumping to meet the costs burden of any wholesale reform to access to documents of this kind. And I’m not sure that such an issue can be resolved through practice guidance, which is the only tool at Munby’s disposal.

And the second issue is this : how to make the leap from better information to better reporting. For that is a leap of faith indeed. The mainstream press will continue to report on the basis of what is “newsworthy” – the judicial approach to transparency can no more control what documents the press read and incorporate into their reports than they can control which cases they choose to take an interest in.

I don’t mean this to be a counsel of despair. Transparency has to happen and no doubt it will. But I hope it will not be at the expense of privacy or safety.

An attempt at a legislative solution to this conundrum crash landed before it was ever properly airborne, and whatever the President seeks to achieve he will have to do it through guidance or practice direction only, with the underlying legislation remaining unchanged. That this is even being mooted by Munby is in itself a reminder that the flexibility to let in the oxygen of publicity already exists within the current framework (subject to my points about costs above), and it is under this framework that the examples cited above were possible – and are increasingly common. It is through thinking about the infinite practical issues surrounding disclosure and reporting in individual cases and across the board that it becomes clear that a goal of greater transparency in the system can only be achieved on a case by case basis. We cannot lurch from a position of automatic secrecy to a position of automatic reporting. We are edging towards the middle ground already, but have further to go. And as applications on these issues become more commonplace we will have to grapple with the mechanics and the costs associated with them where many of those whose rights to privacy or free speech are engaged have no access to legal representation.

A mini summary : A lot has changed but even more is due to change!!

I’m still planning to write a Second Edition for 2014 when the court structure and the Children Act are due to change, but those who have purchased 2011 or 2013 issues will be able to get a discount on that edition.

By the way, you may like to follow the twitter account @nofamilylawyer