Posted on | March 29, 2013 | 45 Comments
Transparency in family justice is an issue that cannot be swept under the carpet – it ain’t going away. This week Christopher Booker wrote a piece in the Telegraph (bluntly titled “Australia’s scandal of forced adoption is happening here in Britain“) in which he drew a parallel between the forced adoptions in Australia, for which Prime Minister Julia Gillard recently apologised, and the child protection system in this jurisdiction, remarking that “Our own forced adoption scandal is a tragedy just as terrifying as anything that happened in Australia all those years ago“. Reading that article the uninformed might not appreciate that there are some pretty important distinctions between the scandal in Australia decades ago and the child protection system here and now. Like a legal and regulatory framework. Like judicial scrutiny and sanction. You cannot
snatch forcibly remove a baby from the care of his parents in this country without a court order, except in very limited circumstances and then only for a matter of hours in case of emergency. You cannot do so on ground of the marital status or financial means of the mother (or father). But of course the privacy that comes with our family justice system allows these hysterical versions of reality – with vicious unaccountable social workers and wanton child snatching – to be perpetuated, and to spread fear and to corrode public confidence. (A slight aside – for an example of a child snatching myth busted, see the judgment of Cobb J reported this week in LM (A Child), Re  EWHC 646 (Fam) wherein the notion that catching a ferry to Ireland before delivery of a baby will avoid the child protection process.)
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  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.