Sir Andrew McFarlane’s review is a transformative moment, marking a shift towards radical transparency
Seven years ago I emailed an editor a draft of a feature about how government cuts to legal aid were harming victims of domestic abuse. Terrified women, I wrote, were having to go to the family court and argue that they needed non-molestation orders and injunctions to ban their abusers from entering the family home – and they were having to do it by themselves, without a lawyer.
With no legal aid, victims in dire financial straits could not secure legal advice or anyone to represent them in court.
I had interviewed abused women who had had to stand up in front of a family judge and make the best case they could for a protective injunction – but I hadn’t actually seen anyone make this sort of application “in person”, as it’s known in the legal jargon.
My editor told me this was a big hole in the piece and sent me to watch a case where a woman who felt she was in serious danger had to do the job that, by rights, ought to have been carried out by experienced legal professionals. So off I went to Bristol Family Court.
There, I discovered that I could watch all the cases I wanted – but I would not be allowed to publish a single word of what took place in front of the judge. Not the evidence of domestic abuse, not how the woman coped – or didn’t – under cross-examination, not what the judge said or how they treated her… nothing other than the fact this was an application for a protective injunction, and whether it was granted or not.
As you may imagine, I was shocked. The human consequences of a controversial government policy to slash legal aid from almost all types of family court case could not be reported, as a result of the legal restrictions. How could this possibly be democratic?
Also: what if the judge dismissed or minimised the worth of a woman’s evidence during a hearing? What if she was cross-examined by her alleged abuser and withdrew her application in distress? What if she felt she was coerced by the judge or her abuser’s lawyer to accept an informal “undertaking” rather than a legal injunction? What if she secured an injunction but it was breached by her abuser, and the court took no enforcement action? All of these things, I had been told, were happening in family courts. If I saw and heard them taking place, why couldn’t I write about them – so long as I anonymised the individuals concerned?
The answer was a 60-year-old law: Section 12 of the Administration of Justice Act 1960. I recite this law now in my dreams: its poorly drafted wording prohibits any publication of “information relating to proceedings” held in private. It encompasses almost every single family law case heard across the country – hundreds of thousands of hearings each year.
Since that day at Bristol Family Court, my outrage has only grown at the extensive and arbitrary restrictions the law imposes on the media’s freedom to report, in the public interest, some of the most draconian actions the state is empowered to take, which often change people’s family lives forever. They include the removal of children from their families, sometimes permanently if adoption is sanctioned; the deprivation of liberty of mentally disturbed young people who are often then failed in terrible ways by the state which is meant to be protecting them; forced marriage; female genital mutilation; child custody disputes.
Any journalist who publishes the details of private family proceedings can presently be held in contempt of court, and made to pay an unlimited fine, or jailed. The same sanction applies to any family member who divulges details of their case to a journalist or anyone else: some parents have been imprisoned for precisely this. The reason – and it’s a good reason – for the ban is to protect children so that they will not be harmed by intimate details of their family lives becoming publicly known. But there are serious unintended consequences to any justice system being insulated from outside scrutiny, particularly as it is entirely accepted by the media that in all but a tiny number of cases, anonymisation of family members is not only acceptable, but required in children’s best interests.
Editors are understandably reluctant to invest in costly and risky applications for special dispensation to report, which are decided by the judge who has heard a case; meanwhile, what if there is wrongdoing by a judge? What is the likely decision going to be in that scenario, if one has to ask that same judge to sanction publication of criticism?
I have now made dozens of applications to family courts for permission to publish details of hearings I’ve attended; some have been made orally in court, others have required tens of thousands of pounds and many months – in one case, over a year – to reach a hard fought conclusion. Though I have often been given permission, the judge has not always ruled in my favour. I have observed many family hearings that have been conducted well. But human rights breaches can and do occur thanks to poor and unlawful practice by local authorities; judges do on some occasions treat parties appallingly; Cafcass, the organisation which represents children’s interests in court, is sometimes severely criticised… and yet the occasions when the mistakes and harms caused in and by the system do see the light of day are, sadly, vanishingly rare. The present rules are simply intolerable if we hold it to be a feature of a decent society that journalists are able to hold the state to account. Besides this, the many other benefits of open justice – a default setting which applies in virtually every other legal context – are being missed.
Until now. For more than three decades, well-intentioned politicians and judges have tried, in vain, to resolve the conundrum posed by the need (on the one hand) to protect children’s privacy while ensuring (on the other) proper scrutiny for this sector of our justice system. Now, at last, the current head of the family courts has very firmly grasped the nettle. In the conclusions to his review of transparency in the family justice system – which took over two years to consult, consider and report – the president of the family division, Sir Andrew McFarlane, has said there must now be a “major shift in culture and process” to enable greater transparency. He has also committed to lead from the front.
What would this mean in practice? The starting point of “no reporting” will flip 180 degrees so that – subject to careful anonymisation of family members – the media may report anything we see taking place in a family hearing we attend. This is, to say the least, a potential transformation in practice: at present, reporters are threatened with clink if we dare publish what we see.
Parents and anyone else involved in a family court hearing will now be able to speak to journalists about their case, free from fear of being held in contempt, fined and jailed. All family judges will be told, furthermore, to publish at least ten percent of all their judgments. This may sound modest, but it means, in fact, that thousands of accounts of the decision making processes a judge undertakes in highly sensitive child protection cases will now be available in the public domain. As a first step, it is proposed that family courts in two areas – one urban and one rural – will take part in a family court reporting pilot.
Sir Andrew intends that there be no backsliding: he will set up a Transparency Implementation Group to ensure his proposals are put into practice and are not the victim of bureaucratic inertia. He wants to foster a relationship of trust and understanding between media and judiciary, and so will also establish a media liaison committee.
To journalists – and, to speak personally, to me – this is pretty much the Promised Land. It is hard to exaggerate how significant a change this is: a revolution in family justice and how it is reported. And it has been such a very hard fought win; it has taken thought, effort, expertise and advocacy by many people, over many years – decades even.
In the media, and at the most senior level, there has been stalwart backing from The Bureau of Investigative Journalism and from Tortoise for the family court reporting pilot I have developed, thanks to funding from the Joseph Rowntree Charitable Trust, and which I proposed to the president in my evidence to his consultation.
I will never forget either the courage of family members who have been through what are almost inevitably traumatic and frightening family court hearings – who, for the seven years that I have been engaged in this struggle, have mustered the strength to support and fight for the right for the media to report their stories. This is their victory, as much as anyone’s.
To many lawyers and judges working in the family courts, I expect the changes are going to feel seismic. The culture shift to which the president has committed the family justice system will take goodwill and creative thinking from legal professionals and media alike. It won’t all be achieved by next week, or next year. And there are bound to be missteps.
But after sustained efforts by journalists and editors, countless hours of contested court hearings, and millions of pounds invested on the best legal brains to fight for the right to freedom of expression (as well as significant pro bono assistance), my clear sense is that we have now reached a point where change is not only coming, but is irresistible.
As for the media, our responsibility is to report not only robustly, but fairly, responsibly and well. We must prove equal to the extraordinary opportunity that, after such a long campaign, has finally come our way.
Louise Tickle is an award-winning journalist. She was one of the team on Behind Closed Doors, the BBC’s Bafta-nominated film about how the police and criminal justice system respond to domestic assaults.
Louise will be hosting a session at the Tortoise Policing Inquiry on Friday 19 November. Throughout the day, from 10-3pm GMT, we’ll be examining the police’s failure to tackle violence against women and girls. Please do join us to help us investigate this critical issue.
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