CONFIDENCE AND CONFIDENTIALITY IN THE FAMILY COURTS: THE PRESIDENT’S TRANSPARENCY REVIEW
After what, it is acknowledged, has been a rather elephantine gestation period, the President’s review of transparency in the family courts emerged into the autumn sunlight on the morning of 29 October 2021. The President has shown remarkable courage to have even undertaken this task rather than leaving it in the ‘Too Difficult’ box.
It has been clear, for many years, that the direction of travel on transparency, albeit a halting and swerving one, has long since been obvious and that is towards greater openness in family court proceedings. Most of us have accepted that the battle to keep children’s proceedings completely closed and confidential was lost a long time ago. A loss of public confidence in the family justice system and a belief that there is something to hide gives fertile soil to conspiracy theories and they do not protect children either. That being the case, we can best help the children subject to proceedings by helping to create the safest possible scheme for them, rather than leaving others to build the new structures on their own. If we are to make this journey, I would suggest that Sir Andrew offers us an informed and thoughtful guide.
The President has clearly seen and recognised the conflicting demands of the child’s rights to privacy, in their most personal and intimate lives, set out in Article 8 of the ECHR and Article 12 of the UNCRC, and the rights to freedom of expression in Article 10 of, for example, the media. The President accepts that, if the voices of the children were to be decisive, we would not be embarking on this work. He says that:
‘The voice of children and young people on this issue is strong and clear; they do not wish to have their personal information and the detail of their lives made public. Much of the evidence in cases relating to children is intensely private and sometimes deeply distressing.’
Those voices, whilst important, are no longer given a veto. If it is to function, the family court must have the confidence of the society it serves and this has been increasingly undermined by allegations of children being removed by ‘secret courts’ and anonymous, misleading and biased accounts being fed to the media, who have no more reliable source to refer to. Any resolution of these conflicts involves compromise but there should be no mistaking the broad thrust of the change.
‘The level of legitimate media and public concern about the workings of the Family Court is now such that it is necessary for the court to regard openness as the new norm. I have, therefore, reached the clear conclusion that there needs to be a major shift in culture and process to increase the transparency of the system in a number of respects.’
The President does not set out a final set of recommendations but rather the issues which need to be dealt with if this transformation is to be achieved successfully. He asks for comments on this report before embarking on the work of trials and reforms to implement the changes. The key steps which are set out are as follows.
There will be no general opening up of the family court to the public in the same way as anyone may watch the proceedings in the magistrates or crown court. However, it is proposed that, unless an individual court decides against it, ‘accredited media representatives and legal bloggers will not only be able to attend and observe but also report what they see and hear, subject to the anonymity of the children being preserved.
An issue to be resolved is the documents, if any, which the media attending the court should see. As we all know, evidence-in-chief is usually given by the witness simply confirming the truth of their witness statement. Advocates representations are often found in writing. As the media found when the rules were changed some years ago to allow them to attend, without access to these papers nothing that follows is remotely comprehensible. The President’s initial inclination is to allow access to witness statements and position statements but not medical statements and not primary documents such as police disclosure. This will always be subject to the discretion of the judge hearing the particular case.
The publication of individual judgments is a valuable way of society becoming aware of the background leading to, for example, a child being removed from their parents, but there is a lot of work to be done about how this can take place without harm to the children. The anonymisation of judgements is a time-consuming task and one which we have yet to perfect. Recent research by Dr Julia Brophy has shown that ‘jigsaw identification’ and a modest amount of searching the internet can pinpoint children in a number of the published judgments. The President is to ask judges to publish anonymised versions of at least 10 per cent of their decisions, representing a significant increase. When judges are already struggling to catch up with pandemic backlogs and increased caseloads, the available hours in the day may be an issue here. Sir Andrew has suggested the establishment of an Anonymisation Unit within HMCTS to carry this out but the funding for this and the training and expertise of the staff remain to be resolved. As Dr Brophy’s 2018 report showed, it is not simply a matter of deleting children’s names and schools.
Children need to be protected from subsequently discovering a detailed account, on the internet, of their physical and/or sexual abuse. Similarly, the school bullies must not find it and use it to attack them. The President accepts that there should be no publication of detailed evidence of abuse and that the need for ‘a good story’ should not override the needs of the child. The report suggests that it may be necessary to have details of a fact-finding exercise appearing in an annex to the judgment which will not be published. In paragraph 50, Sir Andrew says:
‘I wish to achieve an outcome where detailed accounts of abuse simply do not appear in any published judgment. How this is to be done is a matter on which I wish to consult further. One option is simply for text relating to such matters, which may in some cases take up a substantial part of a fact-finding judgment, to be removed en bloc from any version which is published. The judge would then insert a brief and very basic factual summary sufficient to enable sense to be made of the part of the judgment which is to be published, namely the judge’s conclusions (with reasons where these can be given without reference to the detail of evidence of abuse), overall analysis and final decision. Another option is that, in a case with particularly sensitive and intimate allegations, the judge should consider setting out that detail in an annex which would not be published as part of the judgment.’
One of the major impediments to editors and journalists wishing to publish cases about the family court is to be found in s12 Administration of Justice Act 1960 which makes it a contempt of court, punishable by fine or imprisonment, to publish information about certain types of hearings taking place in private. After sixty years, this piece of legislation is showing its age and the President opines that:
‘The 1960 Act was concerned to protect and support the administration of justice. Now, some sixty years after its enactment, I have concluded that s 12 has the contrary effect of undermining confidence in the administration of Family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the judiciary. I do however support calls for urgent consideration to be given by government and Parliament to a review of this provision.’
It is to be hoped that time may be found in parliament to deal with this rather more swiftly than the years taken to enact the, entirely uncontested, legislation required to prohibit abusers from cross-examining their victims. Politicians are all too ready to criticise but sometimes slower to find time to take part in constructive solutions.
What is heartening is that the Family Justice Young People’s Board will be involved in monitoring pilots to test the operation of the wider publication proposed and that they will be able to obtain the views of the young people involved in the proceedings. In addition to this, the President also intends to establish a Transparency Implementation Group (‘TIG’) to assist in devising and implementing the detailed changes required. A broad range of experiences and views should be obtained to ensure that there is the widest possible input for the group’s work.
The devil will be in the detail of how these changes are to be actually implemented. If changes are necessary then they are better coming from within than being externally imposed by those with no real understanding of the work of the family court. The tasks are monumental, however, if children are not to face the cost of meeting the demands for open justice. Sir Andrew says (in paragraph 33) that ‘greater openness must not be at the expense of the interests of children.’ The challenge will be to make these good intentions into reality.