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.

Image for post
Image for post
Photo by Darius Krause from Pexels

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. (It looks as though “Person A” is simply the form field name, not the name of an actual party, “Person B” being the local authority, but it seems to have stuck.)

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:

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 the she has written a post on her Child Protection Resource blog declaring Why I no longer support opening up the family courts.

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:

Paul Magrath

28 June 2019.

Written by

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store