Event: Reporting the family courts — are we doing it justice?
Paul Magrath of ICLR is also a member of the Transparency Project, a charity which promotes better reporting of the family courts, and which has just published a Media Guide for this purpose, which was launched last week with a panel discussion at Gresham College.
The panel was chaired by Gresham Professor of Law Jo Delahunty QC (far left), and comprised (from right to left): Mr Justice Peter Jackson, Sanchia Berg (BBC), Brian Farmer (Press Association), Gill Phillips (Guardian News & Media), Dave Hill (Association of Directors of Family Services), Debbie Singleton (Association of Lawyers for Children), Will Moy (Full Fact) and Lucy Reed (Transparency Project).
You can follow the discussion as it unfolded via the Transparency Project’s own and others’ tweets on Storify, and there will be a full recording available in due course on the Transparency Project site.
The fundamental problem with reporting from the family courts is the tension between open justice and freedom of expression, on the one hand, and the need to respect the privacy of family life and to protect the interests of children and other vulnerable parties, on the other. A change in the Family Procedure Rules in 2009 enabled accredited journalists to attend private family hearings (to which the public are not admitted) but their ability to report what happens in those hearings is often severely restricted. In 2014 the President of the Family Division, Sir James Munby, issued practice guidance requiring the family courts (and the Court of Protection) to publish routinely the judgments delivered after private hearings, subject to specific exceptions. Those judgments generally appear on BAILII and/or the Judiciary website, and can be reported by ICLR and other publishers, subject to any restrictions identified in the judgment or the “rubric” at the top of it.
But that guidance has been patchily followed, as a recent report from Cardiff University demonstrated. That report followed research undertaken by three members of the Transparency Project (including Paul Magrath from ICLR) who analysed the judgments on Bailii, identified a number of issues with their routine publication and made a number of recommendations for improving transparency.
The discussion at the Gresham College event showed that despite the President’s guidance, there was still widespread uncertainty among the media and also academic researchers and interested members of the public as to what they could report from family courts. For example, there was an aggrieved parent who felt she was a victim of the system about which she could not speak out. There were journalists who felt it was not enough just to publish a few judgments: that might give a general picture of how the family courts worked, but it did not enable newspapers and broadcasters to tell people’s stories in a way that made them immediate to an audience. It was all very well being allowed into private court hearings, but how were you supposed to know which ones to attend if the published listings remained minimally obscure? You had to rely on a tipoff, in which case suspicions might be aroused among the other participants, or the luck of stumbling upon an interesting case by chance. For lawyers, too, there were problems in knowing whether and when to talk to the press.
Perhaps the most interesting remark was that by Peter Jackson J, to the effect that the children caught up in proceedings did not necessarily shun publicity — they might be glad for their tales (often of damage and woe) to be told, as some had told him themselves. So perhaps we have all been treading on eggshells unnecessarily? It’s a possibility, but we understand the President is due to revisit his guidance later this year, before he retires, and some readjustment may be in the offing. One can only hope all this useful research, and these interesting discussions, can somehow go into the mix.
Some of the key themes were picked out by Penelope Gibbs, of Transform Justice, who was in the audience, on her blog: How to increase trust in the family justice system
Lucy Reed, on the Justice Gap: Transparency in the Family Courts evaluated — could do better
The current issue of Proof magazine, published by the Justice Gap, also has a lot of articles on the subject of open justice and court reporting, and particularly the sad decline in the routine coverage of the law courts by most newspaper publishers: highly recommended.
Download the Media Guide for attending and reporting family law cases (PDF).