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Routine family court hearings will be open to reporting from journalists and bloggers, as part of plans to increase transparency unveiled last week.
Family Division President Sir Andrew McFarlane said a culture shift towards “open justice” was needed to increase public confidence and could be achieved while preserving the anonymity of children.
“Justice that takes place in private, where the press cannot report what happened and where public information is very limited, will inevitably lead to a loss of public confidence and a perception that there is something to hide, “he wrote. in the findings of a transparency review in family courts.
Not mutually exclusive
In the report, Trust and confidentiality, Sir Andrew noted that more openness in family courts had been discussed for at least 30 years, but that progress had been “freezing” due to the tension between this goal and the importance of protecting children. and their privacy.
He argued, however, that the two concerns were not “mutually exclusive” and that his proposals – based on the work of an expert group he chaired – addressed both.
These include requiring family court judges to anonymize and publish at least 10% of their decisions, “a very significant increase,” Sir Andrew said. He said this would generate better knowledge of how courts approach current affairs, “not just the most high-profile or the most serious issues.”
In addition to countering “serious reputational damage” facing the family justice system amid accusations of secrecy and anonymous accounts of negative experiences, the president said his proposals would give professionals more information. about what happened in the country’s courts, as the current lack of transparency meant that educational opportunities were being missed.
“Learn and improve”
“The family court is currently not transparent enough even to those, especially judges and social work professionals, who work there,” he said, arguing that wider dissemination would help enable improvements in practice.
The report described “very clear rules” to preserve the privacy of children and families and to ensure that details of abuses are not made public, either in media reports or in published judgments. Sir Andrew said he would issue guidance on this.
He said there would be a new consultation on “the approach to appointing local authorities, treating clinicians, social workers and experts”.
In addition to these measures, the president proposed:
- Mandatory data collection at the end of each case to facilitate understanding of decisions made and identification of “patterns and problems”, with the ultimate goal of achieving better results.
- Make the judicial lists of cases to be heard more detailed, with information on the nature of the proceedings, the type of hearing and the estimated duration, and make them available to journalists and bloggers in advance.
- Publish an annual report on the work of the family court, including data on the number of cases, categories of proceedings and results, as well as audit the progress of “transparency” measures.
Family courts and the media: what is changing?
The procedural rules governing family court cases mean that they are usually conducted behind closed doors, unless the court decides otherwise. This differs, for example, from the Protection Court, which sits in public.
Although accredited stenographers have been permitted to attend family courts since 2009 (unless restricted for child welfare or to protect witnesses), reporting hearings when a court sits behind closed doors would place them in court. contempt of court under section 12 of the Administration of Justice Act. 1960 (AJA). Proceedings involving children and families heard by magistrates, district and constituency judges are therefore rarely covered by the press; cases reported in national and local media and by bloggers tend to be those appealed to higher courts.
As “first instance” judgments are also not regularly published, the president said this meant that most family court work “is not open to any form of external review or evaluation”.
“In recent times, cases which have rightly been flagged as worrying have only come to the attention of the media when they are heard in public on appeal. If an appeal had not taken place, it is unlikely that the public (and indeed the judicial system) would have realized what the various appellate judges considered to be significant miscarriages of justice, ”he said. for follow-up.
Sir Andrew has said he will make changes to the 2010 family procedural rules to allow reporting so that journalists and bloggers are not in contempt of court. He expressed support for Parliament to consider whether Article 12 of the AJA should be repealed and replaced, but said it was beyond the purview of the judiciary.
The president said he shared the view of most who testified in his review that “full public access” to family court hearings is currently not warranted.
Drivers before implementation
Sir Andrew said he plans a brief consultation process on the details of the implementation of the proposals, with an essay allowing the media to report on cases in an urban area and a rural local authority to begin soon, monitored by a transparency implementation group he would establish; and by children on the Youth Family Justice Council.
These pilots, and establishing communication with local and national media, aimed to ensure that unforeseen issues could be addressed prior to a national deployment, as well as to find ways to alleviate concerns that journalists might misunderstand or distort procedures in search of a ‘good article’ ‘.
Sir Andrew said his initial view was that journalists and bloggers in court should be allowed to read the positions and statements of witnesses to help them understand the proceedings, but not to see medical reports or documents primary such as police disclosures.
He also defined similar approaches for the media and judges publishing their decisions, to ensure that children are anonymized and to prevent “jigsaw identification” – for example, banning the publication of details about schools, hospitals and communities.
The review found that “the voice of children and youth on this issue is strong and clear; they do not want their personal information and details of their lives to be made public ”.
The president said he would consult further on how to ensure detailed accounts of abuse – which were both “incompatible with the best interests of the child, [and] can also be picked up and disseminated by those who browse the web with a perverse interest in this type of material ”- have not been included in any published judgment.
He admitted that the judges probably weren’t following 2014 orientations to publish judgments in certain categories of cases because of “the increased load that the task of proofreading and anonymization places” on an already sought-after workforce. Sir Andrew said he would push for the creation of an anonymization unit within Her Majesty’s Courts and Tribunals which could perform anonymization by “human input and / or software”.
Respect the wishes and feelings of children
Cafcass said it supports greater transparency to improve public understanding of family courts, assessments and outcomes, as long as children’s wishes and feelings are respected.
“A child or youth who learns of their origins through media reports or details of their family life known within their community could be potentially dangerous. They need to see their well-being and need for privacy respected, especially since we know that children and young people have expressed a wish that their stories remain out of the public domain, ”he said in a statement. press release welcoming the review.
The Transparency Project, a legal education charity that advocates for a more open family justice system and, like Cafcass, testified before the panel said he was “delighted” with the review, which referred to a number of its initiatives to publish information within the existing legal framework.
Project chairperson, lawyer Lucy Reed, said the president’s findings have great potential to address “current levels of distrust and misinformation in family courts” and how this could be achieved. responsible manner.
She praised the approach to confidentiality and said the group told the panel that “those who represent and work with older children [needed] to get used to discussing these matters with them so that they can give their informed consent or make informed objections to the publication of information about their case. The project suggested that Cafcass could develop materials to support professionals in this work.
In response to the report, Chief Social Worker for Children and Families Isabelle Trowler tweeted:
“I am delighted to have testified before the panel and to see this as the result. Well done to all who campaigned for greater access, all understanding the need to continue to protect the interests of children as part of this greater good.