Family proceedings: a ‘watchdog’ role

20170407_154512Legal bloggers to attend court

 

On 1 October 2018 a new scheme was unveiled which enabled ‘legal bloggers’ with the right qualifications and paperwork to go into family courts (see Family Procedure Rules 2010 (FPR 2010) Practice Direction PD37J). These courts would otherwise be closed to them because the hearings concerned are ‘in private’. Thus bloggers (per the new FPR 2010 r 27.11(2)(ff) amended into FPR 2010 r 27.11(2)) are added to the list of those able to attend court.

 

Generally, no one is allowed into a family court except the parties, their representatives, witnesses, ‘officers of the court’ and so on (r 27.11(2)(a)-(e)). In addition, the rule says that for hearings in private the following may also come into court (with (ff) added by the recent PD37J) (‘court attenders’):

 

‘(f) duly accredited representatives of news gathering and reporting organisations;

(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits to be present.’

 

Why are they there? The general common law rule is that English justice must be dealt with in open court. This was explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (in a case about release of hearings documents to a newspaper):

 

[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice….

 

A ‘watchdog’ role

 

Taking his lead from Bentham, when the original version of r 27.11(2) came in, in Re Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10.28(4)) [2009] EWHC 1728 (Fam), [2009] 2 FLR 1467, Sir Mark Potter P described the role of the ‘watchdog’ press under the new rule:

 

[38] The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the court. Thus the position has been created that, whereas the media are now enabled to exercise a role of ‘watchdog’ on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.

 

What is needed to give a real watchdog, and Benthamite, role for the media and others – eg legal bloggers – who attend family proceedings trials (per FPR 2010 r 27.11(2)(f)-(g))? I suggest the following:

 

  • The whole point of a ‘watchdog’ role – as envisaged by Bentham – is to keep judges up to the mark. Those with the privilege of attending court under r 27.11(2) must bear that in mind: it is the judges as much as anyone whom they are keeping an eye on; and they should take on that role accordingly. For example, how many cases from circuit judges in care proceedings in the past year (a) get permission to appeal; and (b) result in appeals being allowed and the appellate court being publicly critical of the circuit judge/ I hear few watchdogs commenting on that state of affairs.

 

  • Access to hearing documents before a hearing, so that the person attending court has a good idea what is going on, much as if that person was in open court (Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795; and see Court documents: Part 1 – to make sense of family court proceedings and the following three articles on what may be released from hearings).

 

  • Someone – the court, the applicant? – should ensure that a basic outline of the facts and any law principles in issue in any individual case is available to the court attender: but only where the case is one which is listed to last (say) for more than one day.

 

On this basis the family proceedings watchdogs can start constructively to review and comment on what family courts judges are doing in our name, and as Jeremy Bentham envisaged.

 

The critical question will be: to what extent are lawyers who attend hearings willing to be frank in their views of the ways individual judges deal with family cases? Will they be prepared openly to disagree with what judges do; and will any legal journals be willing to publish content which is openly critical of individual judges? For example:

 

  • What of the judge who case managed a defended divorce case by allowing evidence only from the parties themselves (overlooking the need for corroboration); and restricted the period of marriage over which the petitioner’s evidence (Owens v Owens [2018] UKSC 41)? And what of the unfortunate petitioner whose lawyers permitted this to happen?
  • Or the judge who failed to ensure that a 15 year old, who made sex abuse allegations against a father, had her allegations tested by or on behalf of the father (Re S (Care Proceedings: Case Management) [2016] EWCA Civ 83, [2017] 1 FLR 1476) before he was deprived of contact with his small child, without challenge to the evidence of the 15 year old.
  • Care order made within three weeks of the application at a case management hearing (all parties agreed the appeal should be allowed): Re S-W (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 2 FLR 136

 

Will blogger watchdogs raise concerns at the way domestic abuse hearings (mostly Family Law Act 1996 Pt 4) are routinely heard in secret by family courts. On the same facts any prosecution will be heard in open court; and the common law would expect them to be heard in public?

 

Will legal bloggers ‘keep the judge himself while trying under trial’ as Bentham envisaged of open court trials? It is a heavy duty on behalf of the rest of us, as envisaged by Bentham and Sir Mark Potter P.

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