In October 2018, following a proposal to the Family Procedure Rules Committee made by the Transparency Project, a nine month pilot scheme was launched. Under the auspices of Family Procedure Rules PD 36J, ‘legal bloggers’ are permitted to attend family court hearings on a similar footing to journalists. Since launch, the Transparency Project team has been taking tentative steps to test out this scheme, and through our early attendances have begun working through the practical and ethical issues that the scheme gives rise to – some foreseen, some unanticipated. We have found it challenging on a number of levels, but we think that, in time, such a scheme has significant potential to improve public understanding of what is going on behind the closed doors of the family court.
How does the scheme work?
Under the pilot, qualified lawyers in three categories may attend hearings, just as accredited journalists already can.
The three categories of lawyer eligible under the scheme are practising lawyers, non-practising lawyers attending under the umbrella of a registered educational charity (such as the Transparency Project), and non-practising lawyers who are attending under the umbrella of a higher educational institution. Lawyers attending must provide picture ID and proof of their eligibility, and must sign an undertaking in form FP301 confirming that they have no involvement in the case, that their attendance is for the purpose of journalism or public legal education, and that they understand and will abide by the applicable reporting restrictions.
The hearing remains in private and the standard automatic restrictions on publication of information concerning the proceedings apply – unless the judge lifts them (this is one of the reasons journalists rarely bother to attend as they can’t be sure there will be anything reportable). So far we’ve asked once for permission to report the detail of what was said in a hearing, and this was permitted, but we don’t expect that to be the norm. As with journalists, the parties may object to the attendance of a legal blogger, but their objection does not necessarily result in the ejection of the reporter. To date we’ve had no objections raised.
What issues have been identified so far?
We’ve found that attending on an ad hoc basis to ‘see what’s on the list’ can present practical problems – by the time the scheme is explained to unfamiliar staff, a suitable case is identified and paperwork passed to the judge there can be insufficient time for a blogger to introduce herself to the parties or their legal representatives so that they can take instructions on any objection that might be raised. We think this is both courteous and a sensible way to reduce the anxieties of the parties and professionals, thereby reducing the risk of objection or problems. It also gives the blogger an opportunity to get a better understanding of the nature of the hearing and consider whether or not an application for permission to see documents might be appropriate (although so far we’ve not made such an application).
We’ve had to think about a number of incidental ethical issues arising from attendance at court with a different ‘hat’ on: how to deal with audible discussions being held by other members of the legal profession in public areas of the court, whether it is appropriate to make use of the advocates room when attending with legal blogger ‘hat’ on (probably not), how best to ensure that the pilot can be made use of without causing unnecessary disruption, delay or anxiety to the people involved in the case. An issue that has not yet arisen is the awkwardness of observing a case where a judge or fellow member of the Bar (particularly one we are likely to encounter again) has behaved inappropriately, got something wrong or performed poorly. How would we feel about reporting that – and in any event would we be permitted to do so?
Perhaps for the Transparency Project the trickiest issue has been working out how to deal with the many invitations we’ve had from aggrieved litigants to come and write about and ‘expose’ the injustice they are suffering and which is sure to be repeated at the next hearing. So far we’ve not attended a hearing in response to such an invitation, and are anxious to ensure that neither the court nor any party feel that we are attending in order to report from a particular angle or on behalf of one side or the other, and that our presence is not used in a tactical way to put pressure on a vulnerable litigant. That is particular important for those of us who are blogging in connection with the Transparency Project – we are an educational charity, not a campaign organisation and our objectivity is important.
"Being forced to observe that process as a fly on the wall in itself is a valuable reminder of the brutality of what we do"
What we have most noted though, is just how hard this new pseudo-journalistic role is. We’ve found the whole process surprisingly anxiety-inducing – the anticipation of possible hostility from lawyers, litigants or judges is ever present (although to date everyone has been very welcoming – if taken aback – at our arrival) – and once in a hearing the sitting and listening (usually without documents to help you orient yourself) is a surprisingly active and dynamic process. What is going on here? Could I include that in my write up? Should I ask for permission to report it? Would it be identifying? When would be the least disruptive time to ask? Addressing the judge from the back of court as a person with no standing when an issue has arisen is an unusual feeling for an advocate used to having a right of audience and a seat at the front.
Finally, as a lawyer in practice at the Bar with all the workload challenges that brings, it is undoubtedly difficult to carve out time to attend a hearing under this scheme, especially when there is always a risk that it will end up time wasted because nothing can be written. So far, each attendance has resulted in a blog post, but in the main those posts have been about the process of attending under the pilot rather than the substance of the cases attended. Over time we hope that will change, but it may require more planned attendances based on prior knowledge of the cases being heard, and liaison with judiciary or lawyers as to which are suitable.
How would you sum up the experience?
The legal blogging experience is, we think, a valuable personal professional development tool too (although that is incidental to the primary purpose). There is a far greater opportunity from the rear of court and when not acting as advocate, to note body language and eye contact and to get some sense of the courtroom experience of the parties themselves – as advocates we stand with our backs to the people whose lives we are discussing, oblivious to their responses as we lay bare their failures, their pain and their heartbreak. Being forced to observe that process as a fly on the wall in itself is a valuable reminder of the brutality of what we do. And of course, the legal blogger will get the pleasure of observing other advocates doing their thing without having to worry about their own submissions in response (although they are worrying about the blogging without being in contempt of court part!).
Can I attend as a legal blogger?
Yes! You don’t have to be a family lawyer to attend and you don’t have to have experience of blogging. What you do need is a little bit of spare time to attend a hearing, a readiness to brush up on what restrictions on publication of information actually apply, and a preparedness to take your chances about how interesting or reportable the case you sit in on will be.
We think it would be really interesting to hear what family court proceedings look like to those who practise in other fields of law. Because of its privacy there is a risk that family practitioners and judges operate in their own little bubble, and therefore we anticipate legal professionals from outside this field might have some useful insights into what they see and how it compares or contrasts with practices in other fields.
Please do get in touch if you would like to find out more or would like us to host a blog you have written. We’ve collated all of our blog posts and information about the pilot on our legal blogging page at www.transparencyproject.org.uk/legalbloggers.
You can email us at firstname.lastname@example.org or follow us on twitter @seethrujustice. ●
Lucy Reed is the Chair of the Transparency Project and a barrister at St John’s Chambers, Bristol.
Restraints in family court reporting
Those who work in the criminal courts will be familiar with carrying out their role in the presence of journalists and the wider public, and with their cases being reported in the local and national press. To a lesser extent so also are those who work in the civil jurisdictions, or whose practice involves a reasonable proportion of appellate work.
For family practitioners, however, it is comparatively unusual to find oneself conducting advocacy in the presence of anyone not directly involved in the proceedings, and still unusual for the judgments arising from our cases to see the light of day on BAILII (British and Irish Legal Information Institute). Reforms in 2014 in respect of both family and Court of Protection matters have led to only a modest increase in the number of published judgments, and although journalists have been permitted to attend most family hearings since 2009, they still rarely do so because it just does not make economic sense when in the majority of cases reporting restrictions will mean that nothing of the hearing can be published anyway. Thus, most news reports relating to family court proceedings are based on the published judgment rather than attendance by a reporter. Even in Court of Protection matters where, following a pilot, many hearings are now held in public with standard anonymising reporting restrictions in place, it appears that the attendance of journalists is still not commonplace (although statistics are not available).