See Through Justice

Transparency is edging closer. After the Childrens Schools and Families Act 2010 fiasco (provisions reforming privacy in family proceedings which were much criticised, never brought into force and finally repealed by the Legal Aid Sentencing and Punishment of Offenders Act 2012), we’ve been left with the small step introduced in 2010 that was allowing reporters to sit in – but not report. Not that this stopped them reporting. Or complaining about not being able to report the things they had reported.

But as irritating and lopsided as some reports were, they did always have a valid point of principle : transparency.

Sir Nicholas Wall, in his time as President, was increasingly keen on the publication of judgments, and his replacement Sir James Munby has already let it be known that significant changes are on the drawing board, announcement expected soon. I imagine that, short of an announcement that there will be primary legislation (which would be for someone in Government rather than the judiciary to announce), this can be little more than a Practice Direction, President’s Guidance or possibly some amendment to the FPR 2010, either of which would probably bear upon the appropriate exercise of discretion vis a vis reporters and publication of information, rather than complete removal the various protections upon privacy that span numerous pieces of primary legislation. But whatever it is, change is afoot and it is probably going to alter the way we work. We’re getting used to change around here.

In a separate but related development, this week it is reported in the Telegraph that Mostyn J has lifted an injunction prohibiting the reporting of proceedings in which Telegraph journalist Christopher Booker had taken an interest. Indeed, according to the Telegraph, Booker had already published a number of items referring to the case before the specific injunction was imposed. Booker is unsurprisingly bombastic. At present the judgment is not apparently on BAILII and it is unclear which of Booker’s many cause celebres (how does one pluralise that phrase?) is now clear for take off (it is referred to in this week’s column as Telegraph as LB Sutton v M and appears to be the case reported here). (If any reader of this blog can correctly identify the case and judgment could you post it in the comment thread below or email me and I will amend / update?)

It seems highly likely that the judgment regarding the press injunction in this case will be published in due course, if not the substantive judgment(s). It will of course only be at that stage that the public and the legal community are properly able to assess whether the reporting was and is as accurate as Booker promised Mostyn it would be, and can form a view about its journalistic balance (the “tendentious” quality of his reporting is something that he has been criticised for before by the judiciary).

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25 thoughts on “See Through Justice

  1. “Sir Nicholas Wall, in his time as President, was increasingly keen on the publication of judgments…”

    —-

    Perhaps so. But he certainly wasn’t as keen to account for, or answer perfectly valid criticism of, his judgments!

    http://thecustodyminefield.blogspot.co.uk/2011/06/leave-to-remove-news.html

    http://www.mckenziefriend.com/2010/04/27/your-numbers-up-payne-v-payne-time-for-change/

    Regards
    Bruno D’Itri

  2. Relying on a judgment in family law to accurately record the unfolding of a case is as reliable as using a journalists take on such matters.

    All highly subjective as the balance of probabilities and lack of transparency ensures those not fully involved only get a mere flavour of what actually happens generally.

    The COA often criticises lower courts as it self is corrected by the Supreme court who are regularly pointed in the ‘right’ direction by Europe.

    One can not rely on a judgment or media article except to point out where the prevailing moods and interests of those who make them lie at the time, nothing more.

    • I take the point chambers that judges are fallible like the rest of us. But if we can’t rely on judgments what can we rely on? What is the alternative if judges don’t have the last word? Is it just who shouts loudest?

  3. P.S.
    Booker’s reporting of cases would on the face of it seem to be hopelessly naive with a lack of understanding of human nature and its capacity to be so deluded and destructive to themselves and others (particularly children and ex partners), so I would prefer to rely on the judgment personally rather than his skewed views.

    However, bigger picture I agree with his apparent aim of a great deal more transparency being necessary and that the family courts quite often have an appallingly consistent unhelpful approach to many cases.

    • Chambers, only just seen your p.s. agree that judgment trumps booker and that booker is right on the transparency point.

  4. Good to be in agreement with you familoo on this

  5. I am sure we will have more transparency, which is a good thing (providing it keeps a veil of anonymity over the children) with the new President, who is very fond of the phrase ‘sunlight is the best disenfectant’

    [Of course, there’s an unresolveable tension between the Press desire to name people and put photos of them with the story – it has more human interest that way, and the desire to keep the children safe from identification, stigma and bullying as a result of the intimate details of their life being splashed over the tabloids. But there is room for a compromise here)

    I stand to be corrected on the Telegraph piece, but as a long-standing LA lawyer, I would be flabbergasted if his assertion that the LA where the mother moved from were resisting the new LA’s desire to take over the case. I’ve NEVER seen an LA offer to take over a take, and I can’t really conceive of the original LA not biting their hand off at the offer.

    So, maybe I am wrong, but that puts a major dent in the credibility of the piece to me.

    If of course, the facts are as he has reported them (with his history, that is some caveat) then this mother has been treated appallingly badly, and in the absence of an assessment to the contrary, the barrister should either have taken her instructions or sought an adjournment to obtain such an assessment if the concerns over capacity were so great.

    [The latter course is tough, because it wouldn’t be on instructions unless you could persuade the client, which would be difficult)

    There’s of course a wealth of difference between a person being unable to make a decision for themselves (where they can’t give you instructions) and listening to your advice and making a bad decision, even an utterly incomprehensible decision. The Mental Capacity Act suggests strongly that everyone has the right to do the latter, and in the absence of evidence to the contrary, they have the ability to do so.

    I’d be surprised if counsel hadn’t contacted the Bar council before taking those steps and got careful advice about what to do.

    • I’ve been in the situation where I have been genuinely concerned about my client’s capacity to give me instructions and as you suggest in your comment I did spend a good long time on the phone to the Bar Council, reading the guidance on capacity issues etc before applying for an adjournment for a capacity report. I was not popular but you can’t go in to court and act on what you think might be your instructions if you think your client is not able to instruct you properly – how can that be in his best interests? These decisions are very difficult, but I agree with you Andrew – if it is as reported something has gone awry. Big if.

  6. [...] judgement has since provided fuel for discussion on Twitter and elsewhere with senior family lawyers sceptical as to the extent to which this case may have done anything [...]

  7. Regarding Andrew’s comment:

    “Of course, there’s an unresolveable tension between the Press’s desire to name people and put photos of them with the story – it has more human interest that way – and the desire to keep the children safe from identification, stigma and bullying as a result of the intimate details of their life being splashed over the tabloids.”

    The ‘tabloid’ press may well be guilty of this approach at times, but the more cerebral broadsheets – as well as the BBC – generally handle these issues a little more seriously.

    We all know examples of excellent investigative journalism which has served the public interest, and in which the protagonists’ anonymity has been protected by the journalist.

    Not only is it perfectly possible for children’s anonymity to be preserved, it is ALSO possible for the Great British Public to be genuinely interested in any bad practice in the family courts without the need for the children’s names and photos.

    There has been a long-standing and perfectly respectable suspicion that the judiciary has used the secrecy of the family courts not to protect children but to cover up bad practice and protect their reputation.

    If Cardinals are capable of hyprocrisy and cover-up, why not judges? Are they any less capable of malpractice than men of God?

    Transparency is society’s only true safeguard.

    Best wishes
    Bruno D’Itri

  8. If journalists had any interest in family law as it really happens (rather than absurd celebrity cases where parties squander their savings and a lot of gunk comes out), then we would have already had them reporting on these things.

    Call me a skeptic, but I don’t think you can have transparency in anything where money and its circulation rules the roost. What we need are whistleblowers, and dozens of them, before the people learn what really goes on. But with prison sentences and false accusations going along with the territory of whistleblower, you won’t be getting many step forward. And those who are in the know and should care about this don’t have the moral conscience and guts that are needed.

  9. Dear However

    You are a skeptic!

    Chritopher Booker is one journalist who tried to report on ‘non-celebrity’ victims of the family courts.

    Camilla Cavendish did a great deal to open up the family courts to public scrutiny.

    Surely there must be others…

    What really doesn’t help is the unquestioning, disciple-like faith and reverence many within the legal profession have for their senior judiciary.

    Not one lawyer dared question the illogical and contradictory stance of Sir Nicholas wall on Relocation law:

    http://www.mckenziefriend.com/2010/04/27/your-numbers-up-payne-v-payne-time-for-change/

    I stand corrected: there was ONE lone lawyer:

    http://blog.taylorking.co.uk/category/children/leave-to-remove/

    All the other lawyers considered Wall to be beyond all possible fallibility (just as priests view their Cardinals!).

    Regards
    Bruno D’Itri

  10. These parliamentary debates about shared parenting and transparency, etc are a waste of time.Why? Because no matter what laws are passed, the judges retain the power to exclude parents from their children’s lives by “non molestation orders” forbidding all contact face to face , by email ,facebook,telephone or post etc.They combine this with injunctions that threaten these parents with prison if they talk about their case to anybody or reveal the existence of the injunction itself so that few people if any know who the “victims” of these orders are.

  11. Who reported Mostyn in favour of transparency? I still appeal to your honesty to reveal truthfully that Mr Justice Mostyn far from capaigning for transparency actually imposed the injunction himself and was only forced to partially lift it when faced by the eminent QC employed by the Sunday Telegraph !Booker is now free to report but the mother concerned will still face jail if she talks to Booker or anyone else at all about her ordeal !

  12. I would love to hear in exactly what respect my “summary” was inaccurate ! I have seen enough of these non molestation orders and injunctions,with my own eyes emailed to me by the unfortunate victims (mostly mothers)proving that they exist ;I have also seen for myself the devastating results.There are certainly no plans by parliament to outlaw these restrictions or abolish those judicial powers.
    There are never likely to be either as the clash between legislature and judiciary would be so awful to behold that it just won’t happen ….

    • Ian, the courts do retain power to exclude a parent from a child’s life but through the children act not by a non-molestation order. Whatever the legitimate complaints may be about how ineffective the family courts are, I don’t accept the impression from your comment that the type of draconian orders you describe are routinely or frequently granted. They are granted but are the exception rather than the rule. There are quite properly no plans to abolish these powers because regardless of arguments about how appropriate they are in individual cases they are plainly necessary and proper in some instances.

  13. I know of at least 7 mothers and one father excluded from their children’s lives even though none of them have criminal records and were never accused of hurting their child or children.The only one I can name and still keep out of jail is Vicky Haigh who looks after her daughter and her stepchildren but is forbidden any kind of commuinication with her oldest daughter !These draconian restrictions were of course imposed before she broke them and was sentenced to 3 years jail for contempt of court so her “criminal record” is irrelevant.
    Baby p’s mother has been allowed visits from her surviving children yet other blameless mothers have been jailed for leaving birthday cards or waving as children passed by in the street…..No judge should ever have the power to deprive NON CRIMINAL parents of communication with their children by phone ,email,or internet.Contrary to your viewpoint familoo I say these powers are never necessary or proper in any instances !

    • Doesn’t really address the point I was making. I’m not seeking an argument. And I’m not going to be drawn into one.

  14. Non-Molestation Orders & Family Law | The Family Law Directorywww.thefamilylawdirectory.com.au/…/non-molestation-orders-famil…Cached
    You +1′d this publicly. Undo
    Feb 20, 2010 – A non-molestation order is an injunction issued by the Family Court, Federal Magistrates Court, or a court exercising Family Law Act jurisdiction …

  15. Sorry I was just trying to show that family court judges often do make non molestation orders against parents but either way cutting off all forms of communication from non criminal parents to their children can never be justified.
    The earlier question of transparency is in my opinion subordinate to the right of all citizens in a democracy to protest to the media against any perceived injustice inflicted on them by the State,Any mother whose baby is confiscated at birth should surely be free to scream to the rooftops and television too if she feels outraged….

  16. Familoo,

    “I stand to be corrected on the Telegraph piece, but as a long-standing LA lawyer, I would be flabbergasted if his assertion that the LA where the mother moved from were resisting the new LA’s desire to take over the case. I’ve NEVER seen an LA offer to take over a take, and I can’t really conceive of the original LA not biting their hand off at the offer.”

    I am concerned Mr. Booker is presented as inaccurate and subjective.

    It would appear in the reporting of Mr. B that he accurately recorded the unwillingness of the original LA to hand over the case to the new jurisdiction, and therefore the questions he raises are highly relevant to the public interest.

    It is difficult to believe that judge Moestyn acculally believes in transparancy in view of his actions in this particular situation.

  17. [...] 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 [...]

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