The much-anticipated Transparency Review: Am I missing something?

Image: Public Domain, via Piqsels

As I'm sure
the reader will know by now, the President's much-anticipated Transparency Review has been published today, to a general consensus that it represents a new dawn for the family justice system, heralding a journey to those sunlit uplands in which never a bad word is uttered about its no longer mysterious practices.

Sadly, I was not one of the elite who received an advance copy (albeit embargoed until midnight last night), but I have had a read, in particular of the President's 'Detailed proposals for change'. I have to say that I am somewhat underwhelmed. I presume that I have missed something...

Let us have a look at some of those proposals:

1. Reporting of proceedings

The President says that he intends "to bring forward rules that will allow journalists and legal bloggers to attend Family Court proceedings and report on what happened". This entails reversing the presumption in AJA 1960, s 12 preventing publication of information relating to proceedings if they concern children.

OK, but isn't that a matter for parliament? Well, the President thinks that he can get around that small issue by putting in place rules which mitigate the effect of s 12. However, he does admit that "any proposed rule changes or practice directions will be subject to the important requirement of government ministerial approval." Hmm...

And just how many legal bloggers (by which I mean bloggers who are already attending and reporting upon family court proceedings) are there? I am aware of just two. And surely those that do it can't afford to give up great swathes of their time sitting in court, for no reward? No disrespect, but the sum effect of a tiny number of legal bloggers reporting on family cases is going to be minimal (apart from the fact that their audiences are nothing like the size of newspapers, and largely comprise lawyers anyway).

The President also admits that there remains the problem of journalists "distorting or misunderstanding the court process in order to produce a ‘good story’ which is neither accurate nor justified by what took place in court". Well, yes - this is the problem with trying to encourage more reporting - readers are only interested in a 'good story'. If accurate reports don't attract readers, then journalists will soon give up on the family court unless, of course, they know in advance that the case will include something salacious.

The President proposes dealing with the matter of misreporting by taking it up with the relevant editors. Good luck with that. If the editor does accept that a case has been misreported then we all know that the best that can be expected is a one-paragraph correction, hidden at the foot of page 9.

So what more will journalists and bloggers be able to report? I'm not entirely sure. And in any event, the President confirms that judges will still have a discretion to exclude non-parties from hearings.

2. Publication of judgments 

Moving on, the other big headline is that the President "will ask all judges to publish anonymised versions of at least 10% of their judgments each year."

This has already attracted comment on Twitter, with some pointing out that adding this extra burden to already extremely busy judges is unrealistic.

Well, we will have to see. But I have been around long enough to remember the previous President's Transparency Guidance in January 2014, which sought the publication of more family judgements. The guidance had an effect. For a while. I have been publishing links to most published family judgments since 2008. In 2013, the year before the guidance, I published links to 476 cases. Following the guidance that figure leapt to 734 in 2014, then to 773 in 2015. But that was its peak. It dropped consistently in the following years, and was back to the pre-guidance levels in 2018.

My point is that judicial enthusiasm for the publication of more judgments clearly waned. What is to say that it will not do so again?

3. Communication between the Family Court and Editors

"There is a need to work with the media to establish a relationship of trust and confidence in order to ensure that any reporting of Family court proceedings is reliable and well informed." Says the President.

Hmm. Call me a cynical old hack, but...

Well, I'm sure you can guess the rest.

4. Data Collection 

The President proposes a scheme of compulsory data collection at the end of each case, which he believes "could be transformational in terms of understanding the decisions that are being made, seeing patterns and problems, and ultimately achieving better outcomes."

OK, I get it. However, the data could just as well be used as ammunition by those who seek to attack the family justice system, as those who seek to defend it.

5. Listing of cases

"In future, lists should be made available in advance to journalists/bloggers which identify the general nature of the proceedings, the category of hearing and the time estimate."

Yep, that should help find those salacious cases...

6. Family Court Online Resource 

The President says that: "Parents, young people and the wider public need a modern online hub to access which will explain the work of the Family Court, how cases are dealt with, what other options exist for dispute resolution and how to make an application."

Fine, but how many are going to read it? All most people want to know is how to take their hated ex to court, not how marvellous the system is.

*      *      *

The President concludes with a few words as to how he proposes this 'culture shift' be implemented, so that it doesn't fall by the wayside like all previous such initiatives. For one thing yet another group is to be set up: the Transparency Implementation Group, or ‘TIG’ for short, which will take forward the changes that the President proposes. I wonder if you can weld a culture shift onto a system of secret and unaccountable justice...

So there we are. Is all of this going to make a difference? Will the 'corrupt family court' brigade be satisfied? Will it be a new dawn, or same-old, same-old?

I'll leave the reader to decide.