Both professions are underpinned by a respect for the importance of evidence, and an understanding that one person’s truth may be unrecognisable to another witness to the same events. And each profession knows that while facts may be ‘found’, divining truth is far more complex, if not impossible.
There are some who would laugh at these descriptions and suggest we are corrupted in one way or another by financial or dubious ideological motivations. At The Transparency Project, we know the reality is that large sections of the public are highly sceptical of the family justice system and the professionals working within it, and that they prefer to rely on mainstream media, social media, McKenzie Friends and campaign groups for information and guidance on their family law matters. Those who distrust the law have their fears confirmed when they read about ‘evil secret family courts’, not just on social media, but in the tabloid or broadsheet press.
But we are also acutely aware that there are examples of good and poor practice by journalists, and true stories of heartbreaking injustice within the family justice system. It is of course important that such injustice is properly reported, but it is equally important that allegations of corruption, incompetence or injustice are not made without facts to support them. How else can the public reach an informed view? How else can they trust the system or protestations that miscarriages are rare aberrations, rather than the norm? How else can they use democratic processes to effect reform if the system really is failing without proper reliable reporting of such failures? And how else can they trust the press, which professes to be our watchdog?
The public need more reporting of family courts, and they need it to be reliable – whether it is critical of the system or individual decision or not. The economics of this are difficult for the press. Reporters rarely attend court in family cases, because reporting restrictions make it hard to justify the time spent with so little to show for it. The range of cases that the press covers is itself highly selective and not representative of the breadth of types of cases and outcomes (for example there is disproportionate coverage of vastly wealthy or celebrity divorcing couples).
Good, bad and the ugly: reporting watch
It is against that background that we have been working, through our Family Court Reporting Watch project, to highlight both good reporting of family court cases, and the not so good. We’ve been supplementing the coverage of cases which the public may need some help to get to grips with, and covering some cases that the media aren’t bothered to report at all, but where judgments are published on BAILII. Those include some cases of genuine malpractice or injustice which have, oddly, not been picked up beyond the industry press.
And there is good reporting. Increasingly, since Sir James Munby, President of the Family Division’s 2014 Guidance encouraging the publication of greater numbers of family court judgments there is more reporting of such cases drawn directly from the judgment: see . (However, for complex reasons there are far fewer judgments published than originally hoped for: see research published by Cardiff University earlier this year.) We’ve seen journalists precis a case reasonably well, based on a judgment, even where economics have prevented their attendance at court. But there are limitations to this – the judgment is the judge’s record of what is important for determining the questions at issue, which may not necessarily tell the whole story from a human perspective.
Problems arise where journalists do not stick faithfully to a judgment, and through creation of a story based on only those selected snippets from a judgment that make a good headline. Some news items have created a distorted or misleading picture – often one which would unnecessarily worry vulnerable parents about the removal of their children. We have sought and secured corrections on a number of occasions where a story is overly selective and often (if not always) the response from newspapers and journalists has been constructive. For example, a number of newspapers reported a case which had involved a mother co-sleeping with her children, and to varying degrees suggested that this was the sole or primary reason for the removal of the children, without making sufficiently clear that there had been unexplained physical injuries on multiple occasions, including a fracture. The Mail and The Independent made some corrections; The Telegraph declined.
An area of greater concern is reporting which seems to be deliberately controversial and tendentious, and where the journalist or publication uses the label ‘opinion’ as a shield against complaints of factual inaccuracy, misleading or distortion (a breach of Clause 1 of The Editors’ Code, enforced by IPSO). A number of our requests for correction of ‘opinion’ pieces which are blatantly factually inaccurate when compared to published judgments have been rebuffed on the basis that a journalist is entitled to express his or her opinion. This is of course a non sequitur – of course they are free to do so, but to be respected and to comply with Clause 1, such opinion must be properly based upon fact, and must avoid distorting or misleading by omission or over-selection. Even where a journalist disagrees with facts as found by the court (of course sometimes such facts are wrongly found), it will be a rare occasion when they can fail to acknowledge the fact that a finding or decision has been made without potentially misleading the public. Disagree with and criticise the court by all means, but first explain what the court has actually done.
Coupling stories to the facts: complaints upheld
Our complaints under Clause 1 have led to some corrections and clarifications, and occasionally to the inclusion of a link to the actual judgment. We would prefer such work to lead to a change in practice from the hard core of journalists whose stories seem to regularly become uncoupled from the facts but, until that happens, we will continue correcting, clarifying and explaining and signposting people to the judgments that tell the story in detail.
Two examples illustrate the point. Firstly, we were critical of an article in The Guardian concerning a case involving a child whose mother asserted that he was transgender. It was reported as if the case was about a transgender child, and as if it set a precedent regarding transgender cases. It incorporated some highly selective vox pop quotes from worried parents of transgender children who were worried that the judgment would be used to criticise them as parents. In fact the court had found that the child was not transgender at all, and his mother’s projection of this identity on him had been harmful. The case was very fact specific and should have caused no concern to the parents of genuinely transgender children – if properly explained. We asked the journalist to correct the article and she did so, later including a link to the judgment itself.
More recently, we have complained successfully that columns by Christopher Booker in The Sunday Telegraph criticising the placement by the family court of a teenaged boy in a psychiatric unit for assessment were misleading or distorted by omitting any reference to the existence of serious findings against the parents that they had endangered the child’s life and prevented him from exercising autonomy as an individual, to the extent that he required assessment in such a unit, and for suggesting that the child had only been placed there for bureaucratic reasons connected to his impending 16th birthday. The Telegraph conceded that the article had been ‘potentially misleading’, and amended its article to reference the findings and clarify that the reasons for the move were more complex than had been suggested. We’re pleased that they have also added links to the judgments in the case.
This is the same case incidentally, in which a Daily Mail journalist recently gained access to the child in hospital by using a pseudonym and concealing her identity as a journalist (a clear breach of The Editors’ Code). Mr Justice Hayden invited the child’s Guardian to complain to IPSO on his behalf, and expressed some incredulity at the journalist’s protestations of naivety (Westminster City Council v H  EWHC 1221 (Fam) 19 May 2017).
We understand it is impractical to demand journalists attend court before writing about a case, but when non-attendance is combined with a practice of turning a blind eye to the inconvenient details contained in judgments, or where a journalist is prepared to place reliance upon the narrative of one aggrieved party only, the public are likely to be let down. We hope in some small way we can mitigate the impact of such failures in journalism where they occur.
The right tools
On a more positive note: to support the press and families and to facilitate more and better reporting, we have published a media guide for journalists, Attending and reporting family law cases and a further guidance note containing practical guidance for families and professionals to help them think through the issues around publication of judgments arising from the cases in which they are involved.
Contributor Lucy Reed is Chair of The Transparency Project and a barrister at St John’s Chambers, Bristol. Other barrister members are Jacqui Gilliat (4BC), Sarah Phillimore (St John’s), Barbara Rich (5 Stone Buildings) and Paul Magrath (non-practising, ICLR).
ABOUT THE TRANSPARENCY PROJECT
We are an educational charity whose aims are the promotion of public understanding of family law and family courts in England and Wales. The Project works to help the public access better information about family justice, to correct some of the lazily recycled myths and common misunderstandings promulgated in or by the press, and to encourage a healthier, better informed, public debate about family justice. Initially this took the form of blogging and writing, but over time has broadened to include the publication of our own materials for use by professionals and families, the facilitation of events, and speaking and media work.
The Transparency Project has been awarded a grant by the Legal Education Foundation (LEF), which supports the development of a raft of guidance notes tackling family law topics that cause particular confusion or worry for the public, and the Family Court Reporting Watch project, which explains topical family court judgments and cases covered by the mainstream media – correcting, explaining and signposting to judgments.
Our team is made up of a group of practising barristers and academic lawyers (family, court of protection and information/media law), linguists, legal publishers, journalists and social workers. Many are bloggers in their own right. We are a small, fledgling charity, and although LEF has enabled us to develop project work, we would welcome any small donation that can help support our core expenditure.