Spotlight on family court reporting
Guidance issued three years ago was intended to make the family court system and its judgements more transparent. But, for most of the population, what happens in the family courtroom appears still to be ‘justice in secret’, carried out behind closed doors. This Week in Fostering takes a closer look at some of the issues around reporting the family courts.
Much of the time This Week in Fostering sees me glued to a computer screen, sifting through websites, trawling through Twitter to pick up some exciting snippets to share on our social media sites or capture in our weekly update.
But last Wednesday I got out from behind the laptop and headed to the bright lights of London – Gresham College to be precise – and the heart of the capital’s legal quarter. There the Transparency Project had brought together an illustrious panel from the legal, journalistic and other professions to spearhead a debate titled Reporting the Family Courts – are we doing it justice? The debate followed the publication last month of research from the University of Cardiff funded by the Nuffield Foundation, which found that guidance given to family court judges to routinely publish their judgements is not being consistently followed, leaving the public with a patchy understanding of the family justice system in England and Wales.
Issued in 2014 by Sir James Munby, President of the Family Division of the High Court, the guidance was was intended to tackle perceptions that important decisions about children, including during care proceedings, were being made in secrecy, behind closed doors. The Transparency Project, a group of lawyers, legal journalists and bloggers, was created the same year with the aim of helping the goal of Sir James Munby’s guidance to become a reality by explaining some of the (anonymised) judgements published under the guidance and correcting misreporting in the media.
As most family cases are held in private to protect children, the publication of an anonymised judgement on BAILII, a freely accessible legal research website, is often the only way that journalists can report on (or the public read about) decisions made in those courts. This requires the judge in the case to put together a summary of their judgement, leaving out certain details to avoid children or vulnerable parties being identified. But the Cardiff team, led by Dr Julie Doughty analysed 837 judgements published in the first two years following Sir James Munby’s guidance and found “significant local variations” in following the guidance. The researchers noted that the 837 “forms only a minority of judgements, given that between 11,000 and 12,000 children are involved in care proceedings each year”. Some judges published none of their judgements over the two-year period examined in the research.
Reporting the family courts was currently “a work in progress” agreed BBC reporter Sanchia Berg, one of the panel last week. She said that because the publication of judgements was piecemeal it was difficult to draw out themes and and issues – or to compare practice between different local authorities.
The panel did include one of the more prolific publishers of family court judgements – Justice Peter Jackson. His recent judgements include a lauded example written in plain English, avoiding jargon, expressly so that the two children that it concerned, aged 10 and 12, could read and understand for themselves the reasons why they were not permitted contact with their father. However, other judges were not as proactive in writing their judgements, some saying that they did not see the guidance as relevant to them, while others cited lack of time and resources as a barrier to publication, the Cardiff research noted. As one person in the audience last Wednesday remarked wryly, it was those judges “who can type fast” who were more likely to make their judgements publicly available.
But there was also concerns about “jigsaw identification” – the idea that the identity of children could be deduced using the information provided in a poorly anonymised judgement combined with a robust Google search – and that this was stopping judgements being published. One of the audience members, a child protection barrister cited one study that found that the children who featured in seven out of 21 judgements examined could be identified through jigsaw identification despite the judgement being anonymised. She added that some of the descriptions of the abuse suffered by children were unnecessary and upsetting and that the overriding principle of publishing any judgement should be to do no harm to the children involved.
Justice Peter Jackson responded that he felt unease about airbrushing some of the aspects of abuse that featured in child protection cases. He noted that it was one of his judgements that had come under fire for its “upsetting” content. But he added that subsequent to this he had been contacted by the children involved who said they were glad that his published judgement had included the descriptions of abuse as it made them feel that somebody had listened to what they had gone through.
While the principle of open justice prevails in the courts – that justice should be seen to be done – this is modified by the need to protect and safeguard any children involved, which has led to accusations of “secret courts” deciding on the fate of children in some more extreme examples of media reporting, accusations that are reproduced and multiplied via social media channels. This was illustrated dramatically last week in the case of the mother who disappeared with her two children on the day that a judgement was due on her case. The judge involved in the case issued details about the mother and the children in a bid to help locate them, but withheld details of the case to preserve the privacy of the children. It since emerged that the judgement followed an unusually long 12-day fact finding private hearing that resulted from allegations by the mother that the children were sexually abused by the father. This was found to be not true by the judge in the case, whose subsequent published ruling went into more wider concerns about the mother which had not previously been revealed – explaining the urgency in locating her. The children have since been placed in foster care. The Transparency Project goes through the details of this case and in so doing illustrates the conundrum faced by the court – that seeking to protect children by withholding information about the court case has resulted in social media and national press vitriol against the court process itself.
The Transparency Project features a number of bloggers who comment on and explain specific judgements from the Family Courts. Other family law bloggers include suesspiciousminds, Pink Tape and The Secret barrister and last month Justice Andrew McFarlane referred to all of these as “innovative and important initiatives” in a lecture to the Family Justice Council. He added, “but they are by no means enough to open up the family court and knowledge of our processes so as to provide the sort of general transparency which I consider is both justified for the public in general and desperately needed for the individuals who find themselves at the centre of child protection proceedings”.
To find out more about the Cardiff report and how transparency in the family courts could be improved read the press release which provides links to the report summary and full report. You can find out more about the Transparency Project’s newly published media guide on reporting family law cases.