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The Shining Light of the Media

On the day that media access to family courts is introduced, Chris McWatters of 5 KBW surveys the views of campaigners and the legal profession on the impact these reforms will have on family justice.

image of chris mcwatters barrister 5KBW

Chris McWatters, 5KBW

Today sees the opening up of family courts to the media as a result of new legislation.  From now on, according to the amended Family Proceedings Rules, “accredited representatives of news-gathering and reporting organizations” will be allowed inside all family proceedings courts, whether divorce or private or public children law.

The reform follows three years of government consultations, which aimed to increase public confidence in the family justice system by making it more transparent. Separately, campaigners outside the government process have also been active in promoting change.

The campaigners have been trying to eradicate what they call the secretiveness of the family courts. Camilla Cavendish of The Times, who recently won a Campaign of the Year prize at the British Press Awards for her work on opening up the courts, talks of the “need to shed light in dark corners.” Her idea, and that of Lib Dem MP John Hemming, is that, with the media present and reporting restrictions lifted, miscarriages of justice will be less likely to occur.

All this made the legal establishment deeply anxious. Lawyers who work in the family courts worried that vulnerable children would be exposed to the press, that sensation-hungry journalists would throng to divorce cases, that witnesses would be less willing to come forward if they fear their statements will be publicly reported, and that there would be long delays in cases while judges worked out how much to handle the press.

However, the reforms in their final form have gone much less far than campaigners had hoped. The media will be allowed into court. But they will not be allowed to name or identify anyone in the case, unless they apply for and receive specific permission from the judge. They will not be allowed to report the detail of the case. In these circumstances, it will not be easy to get a press story out of a visit to a family court.

The campaigners are bitterly disappointed that the courts “will not be as open as we had expected”. Cavendish wrote that she had been expecting “publication to be routine unless expressly forbidden by the judge”.

The legal profession, at the same time, is permitting itself a small sigh of relief for now.

According to leading family practitioner Stephen Cobb QC, there are strong reasons for restraining a free-for-all on reporting cases. The first is that the children themselves do not want it. “I think it shouldn’t be forgotten that, when these proposals were first up for consultation, there was a very strong body of opinion expressed by children, and those represented children’s interests that it wouldn’t be right,” he said. He was quoting research conducted under the auspices of Lord Falconer in 2006. This view is endorsed by Piers Pressdee and Caroline Little, co-chairs of the Association of Lawyers for Children, who state that “children involved in painful proceedings in family courts… have made it abundantly clear to government that they do not want people unconnected with their family in court listening to details of the failures of their parents and its impact on their lives.”

Another key concern for Cobb is the potential effect open reporting might have on witnesses giving evidence. “There’s a risk they will clam up, because they don’t want the trouble that reporting what they’ve said in court may bring them”.

Some witnesses already need persuading to give evidence to a court about trauma, abuse or violence within their family. Take the hypothetical case of a woman who is reluctant to reveal to the court the name of the father of her child, for fear the man’s partner might become physically violent with her. In a media-free court, she might be promised privacy for the revelation. But with reporters in the room, her fear that word might get out would be more likely to tip the balance against her speaking.

If this, in the view of many lawyers, might constitute at least a limitation on justice, campaigners Cavendish and Hemming see the danger of miscarriages of justice as coming from an entirely different direction.

What they are particularly concerned about is that – under the rules coming into force today - parties involved in family proceedings are still gagged from speaking openly to the press about what they perceive to be miscarriages of justice.

“You shouldn’t have to prove that there’s been a miscarriage of justice before you’re allowed to talk about it,” says Hemming. He says he knows of teenage children who are the subject of proceedings - who are keen to talk publicly, but cannot. “That cannot be right,” he insists.

Cavendish, likewise, says she has been approached by several parents who want to speak out about their experiences to reporters. “They are convinced that expert witnesses and/or local authorities have been able to distort the case against them because hearings are behind closed doors,” she says.

Family barrister Cobb, however, disagrees with the whole notion of volunteering for trial by media.

“If the rules were so relaxed to allow disaffected parents to speak freely to the press about what they may perceive to be miscarriages of justice, actually all they will really do is expose unfairly and improperly the plight of their own children.” He adds: “if parents talk to the press, the press are going to get a very partisan view of what has actually happened, and if that is percolated to the public….they are going to get a distorted picture. And that’s not helpful.”

Cobb points out that, if a parent believes a miscarriage of justice has taken place, then a more constructive starting-point would be to appeal rather than speaking to the press. “Of course, if the miscarriage of justice is confirmed on appeal, one would expect that the court of appeal would be reasonably well-disposed to a relaxing of the reporting restrictions to allow the parent greater freedom to speak” says Cobb.

Today’s new rules also gives parents much wider scope for disclosing information from proceedings to specific third parties, such as MPs. They in turn have greater scope for onward transmission of that same information. “So an aggrieved party is able to enlist the support of others with ‘influence’ to address the alleged miscarriage of justice”, says Cobb. In his view, this already constitutes a second way forward outside the court process itself that might prove more useful than going to the press.

If the aggrieved parties do feel under a compulsion to ‘speak out’ to the press rather than engage in an appeal process, they, or journalists who have adopted their cause, can now apply to the court for the reporting restrictions to be lifted to enable a party to talk to the press.

For Hemming, such an application would be futile – as a judge and the lawyers who had let a miscarriage of justice through would be unlikely to agree to it being publicised in the press. “If it is the practitioners who have let everyone down, including the judges, they are not the right people who should decide whether or not there should be a lifting of the reporting restrictions,” he says.

However Cobb points out that in this situation, the parents could always ask the judge to recuse himself from hearing the ‘reporting’ application. If the Judge declined, the parents might very well have an Article 6 argument that they had not been given a fair hearing under human rights legislation.

Cavendish believes that journalists, faced with having to apply to remove reporting restrictions, may very well not bother entering family courts at all. Cavendish had anticipated that the reforms would have maintained anonymity of the parties while still enabling journalists to report on the detail of a case.

Cobb, however, points out that keeping parties anonymous, or changing their names, would not stop them from being identified. This is due to the possibility of ‘jigsaw identification’, where seemingly innocuous pieces of information can come together to form a picture. Robert Thompson and Jon Venables, the 10-year-old killers of James Bulger, in 1993, were initially known in court as Child A and Child B in the hope of preserving their anonymity. Yet, fifteen years later, even their post-imprisonment second identities are at risk of being uncovered by the press.

Preserving anonymity would be particularly problematical in the local press, Cobb believes. “You’ll get the local press attending the local courts to look and see if there’s anything of interest going on there, and if they report in the local papers, the risk of jigsaw identification is that much greater, because the local communities will be that much more able to put together the pieces that make the picture,” he says.

However the current reporting restrictions are so strict that there is no chance of putting out even the first piece of the jigsaw that could lead to identification.

Leading divorce lawyer Mark Harper, writing in the Times last week, said he was concerned about the new rules allowing parties to have consultations with third parties who are in turn allowed their own consultations with other third parties. He believes that this relaxation of the rules will inevitably lead to information leaks in divorce cases, particularly those involving celebrities.

The change, he says, amounts to a blackmailer’s charter. As he put it: “Divorcing spouses who believe that they have sensitive information in their possession will use it to extort the maximum financial settlement, on the threat that otherwise all may be revealed to the media in court. … What benefit is there in knowing if a captain of industry enjoys wearing women’s underwear or a leading sportswoman enjoys lesbian sex? … What may be of interest to the public is not necessarily of public interest.”

Cobb is hopeful that this will not be the case in care proceedings. However he is worried that, unlike in criminal proceedings, where a reporter can follow the entire narrative of evidence, thereby gaining a complete picture, reporters will only get a partial picture of what goes on in a family case. This is because most of the evidence is contained in documents, and the only evidence that comes to light is what is challenged through cross-examination. Yet the press will not get automatic access to documents, unless given specific authorisation. Even if they do gain access, reporters will hardly have time to digest three lever-arch files for the sake of a story they will have to have written by 3pm. If journalists are to have any documentation from the case at all, Cobb would not be against making case summaries available to them. “Perhaps it will become common practice that advocates prepare case summaries in a way that they are user-friendly to the media”, says Cobb.

Cobb also believes that legal arguments over media access will lead to inevitable further delay in family proceedings. Delay is already the scourge of family courts, is expensive, and is bad for any children involved. “Is it really going to be helpful for cases to get off to a false start to have these kind of arguments?” he asks.

However, the changes introduced today are unlikley to be the end of the reforms. Jack Straw, the Secretary of State for Justice, stated this morning on the Today Programme that he hopes to bring reporting restrictions in family proceedings in line with youth court criminal proceedings. This would still mean that parties names would remain anonymous, but certain other identifying features could be reported, such as names of experts. For Caroline Little this is a worrying development,

"Family proceedings are dynamic and cannot be equated to criminal process; their purpose is to effect change to improve children's lives."

She also fears that such a move would only increase the risk of jigsaw identification.

In spite of their disappointment at the limits on the current changes, both Cavendish and Hemming see them as a step in the right direction. “We have got our foot in the door but we will have to keep prising it open,” says Cavendish.

Yet Cobb’s hope is that, by allowing the media into family courts, any suspicions that the allegedly ‘secretive’ family courts are producing an unfair form of justice will be eradicated. “What I hope they [the critics of the family justice system] actually see,” he said, “is a pretty impressive system which very carefully, in my view, evaluates what’s best for children”.