The principle of open justice is well established. Justice should not only be done, but should be seen to be done, as Lord Hewart, Lord Chief Justice memorably observed in R v Sussex Justices, Ex p McCarthy  1 KB 256, nearly a century ago. The House of Lords had affirmed the principle in Scott v Scott  AC 417, subject to a narrow range of exceptions. Among the exceptions were wardship proceedings (cases involving children) and proceedings in what was then quaintly termed “lunacy” – essentially cases about mental capacity which would now be heard in the Court of Protection. There are also a number of statutory limitations relevant to family cases, such as section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1998.
More recently, the practice in the family courts has been determined by the Family Procedure Rules, rule 27.10 of which in a sense reverses the common law default position and mandates that “(1) Proceedings to which these rules apply will be held in private, except – (a) where these rules or any other enactment provide otherwise; (b) subject to any enactment, where the court directs otherwise.” But rule 27.11, where a case is heard in private, the public are excluded but “(f) duly accredited representatives of news gathering and reporting organisations” may attend, as of right, as well as “(g) any other person whom the court permits to be present”.
Media attendance at private hearings
The right of the media to attend was introduced ten years ago, in response to complaints in the media of “secret justice” being administered “behind closed door”. It was hoped that responsible reporting, by journalists acting as the “eyes and ears of the public”, would enhance understanding of what the family courts were doing and offer a measure of public scrutiny.
It was only partly successful. Sir James Munby, when he became President of the Family Division in 2013, declared his determination that “the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.”
His Transparency Guidance, issued in 2014, boosted the number of judgments from private hearings published (in anonymised form) on BAILII and elsewhere, in the hope of enabling the public to see and understand the workings of family justice.
One of the consequences of the greater availability of judgments has been a tendency for lawyers to comment on cases on social media and by writing about them on blogs. That is a core part of the mission of the Transparency Project (which I helped to found in 2014), namely to “make family justice clearer”. Our members include lawyers, academics, journalists and others with knowledge and experience of the family justice system. A key part of our activity is to take cases which have been reported, often in a lurid or sensationalised way in the press, sometimes quite misleadingly, and write a post explaining what really happened and, more importantly, why.
The pilot scheme
It eventually became clear that we would be in an even better position to explain what was going on in the family courts if we could actually attend the hearings, as legal bloggers, on the same terms as the media. We duly lobbied for a change in the rules and the result (after anxious consideration by the rule committee) was Practice Direction 36J, Pilot Scheme: Transparency (Attendance at Hearings in Private). It temporarily inserts into FPR rule 27.11 an extra paragraph permitting attendance at private hearings of “(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes”.
“Duly authorised lawyers” fall into three categories : (1) Practising lawyers; (2) Non practising lawyers working for a Higher Education Institution (HEI); and (3) Non practising lawyers working for a registered educational charity whose details have been placed on a list with the President’s office. (The Transparency Project is such a charity.)
A practising lawyer must have a relevant practising certificate and not be involved in the case. A non-practising lawyer will need a law degree or equivalent qualification as well as a letter of authority from their HEI or the educational charity. For obvious reasons, anyone taking part needs to be able to assure the court of their relevant status, so proof of ID, and other documents need to be provided.
The pilot began in October 2018 and is due to run until 30 June 2019. A number of those who have participated so far have published posts on the Transparency Project blog, under our Family Court Reporting Watch banner. The pilot provides an interesting opportunity for practising lawyers, and for those who may be engaged in legal research, to experience a private court hearing in the same way as a media reporter. For barristers or solicitors already in the court building, it may allow them to use their time waiting for their own case to come on more profitably than sitting round in the waiting area drinking weak coffee. For academics, it can add practical observation to theoretical research.
The judiciary have generally been welcoming of the presence of legal bloggers in their courts, even if the parties or their lawyers have sometimes been more wary. But as the current President of the Family Division, Sir Andrew McFarlane, recently observed, the fact that these bloggers are also lawyers is useful because it means they are more aware of the legal issues and may be better equipped to respond to any application to tighten reporting restrictions. (He made the remarks during the hearing of an appeal by a journalist, Louise Tickle, against reporting restrictions imposed by the family court: the judgment has not been published yet, but there is a post on the Transparency Project blog.)
To help promote awareness of the scheme and to assist those who might appreciate some guidance on what may be a new development for them, the Transparency Project regularly holds CPD workshops on legal blogging. The next will be in Bristol on 15 May 2019 at 5pm, in St John’s Chambers.
The workshop is not just for those lawyers who might want to do a bit of blogging, though we welcome their interest and are keen to promote the practice. But the workshop also discusses the implications for lawyers and their clients on what may be an unexpected factor in their hearing. Our aim is to assist advocates to best serve the interests of their clients whether parent, child or local authority. We’d also like to take the opportunity to gather any feedback from participants on the issues that may be emerging from the pilot scheme and their experiences of it or worries about it.
This event is open to any lawyer conducting advocacy in the family court in England & Wales or who would be eligible to attend court under the legal bloggers pilot. Tickets are free, but donations are invited. Ticket numbers limited. For more information, see the events page at the Transparency Project.
Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. His book, Transparency in the Family Courts, co-authored with Lucy Reed and Julie Doughty, is published by Bloomsbury Professional.