This week has seen reports in the legal press of a speech in which the President of the Family Division, Sir Andrew McFarlane, set out an idea for a research project about news reports containing accounts of how family courts have handled domestic abuse claims. See for example : Press attacks on family courts should be assessed – McFarlane by Monidipa Fouzder in The Gazette. Here we ask : But could it work?
We’ve seen the full speech, but it isn’t currently available in full on line – if it is published on the Judiciary website we’ll add a link.
The context of the proposal was a speech to a conference run by the PSU (now Support Through Court) about domestic abuse. The President talked about the volume and complexity of cases involving allegations of domestic abuse, quoting an extract from Transparency Project Chair Lucy Reed’s recent blog post :
Judges are not superhuman. Those who demand that they should magically find out the objective truth as they see it may be disappointed. They do their best with the information available – but real lives and relationships are messy and subjective, rarely reliably captured in objective contemporaneous records, and often reimagined or reinterpreted (for entirely understandable reasons) by those who have lived them. Control in the courtroom, Pink Tape blog, 26 October 2019
In his speech the President gave some powerful illustrations of how much more advanced our understanding of domestic abuse is, and went on to express some confidence that family court professionals and judges were even further ahead in that journey of understanding than society in general, apparently based upon the regularity with which Family Courts are dealing with these issues.
That conclusion is far from uncontentious – indeed popular concern that the reverse is true (and that Family Courts are getting things wrong with worrying regularity) is precisely what has led to the current Ministry of Justice review on this issue – a point that is in fairness not lost on Sir Andrew, who notes that :
At least two national newspapers are currently running campaigns aimed at highlighting the perceived failures of the Family Justice system in this regard. They and other media agencies are undoubtedly right to do so, and I welcome the focus brought to bear on this work. There is, however, currently an inevitable difficulty in such campaigns. In almost every case the journalists will have little more information than an account given to them by one or other parent. Whilst a growing number of Family Court judgments are published, they are published anonymously and the judgment in the particular case that has been referred to the media may either not be published or, if published, not readily identifiable as being the judgment relating to the parent who is speaking to the journalist. From my perspective, when reading such media reports, which I can assure you I do, I am left, having read the worrying headline and short account in the paper, with an inability to identify the individual parent or children concerned and no ability, therefore, to call for the court file to see what has happened in the particular case.
And here is where the research project comes up :
This is a wholly unsatisfactory position from the point of view of the complainant parent, the journalist, the public at large and the justice system. The important questions by these and other media campaigns cries out for a thorough independent research project. A starting point would be for the researchers to take up each and every case that has been properly highlighted in the Press and then be allowed access to the court file, the orders made and, particularly, the statement of the reasons given by the judges and the magistrates for making any court order. I and the Family judiciary as a whole would readily cooperate with such research, so that if mistakes have been made or, more worryingly, if the system as a whole is at fault, that can be seen to be the case and immediate steps may be taken to enhance the safety of victims and children in the future. [our emphasis]
This is an unexpected and bold suggestion – and we are giving some thought to how it might work – we’d welcome your views and ideas. In the meantime here are our initial thoughts about this idea and the context in which it has emerged.
The Transparency Project has been calling out tendentious, reductive or inaccurate reporting of family court cases for years. Sometimes reports are so bad that we complain to the newspaper or to the regulator IPSO. Mostly the reports we complain about are news or comment pieces based upon published judgments, where we’ve been able to match a judgment to a report, and from that to identify inadequacy in the reporting.
The sort of scenario the President is describing though is slightly different : here a parent gives an account from their perspective to a journalist and more often than not this is all the journalist has to go on (or at any rate they are not in a position to check with others involved or to scrutinise the court file). Christopher Booker’s columns in The Sunday Telegraph regularly featured such accounts from parents. They were always highly critical of Family Courts (and sometimes the Court of Protection), but often described events in terms that made no legal sense and could not be correct. We regularly challenged those on grounds of logic and understanding of the actual law and procedure – and only sometimes could we do this by cross referencing with a judgment.
We have been following the campaigns that Sir Andrew is talking about in his speech. Most of the accounts are very worrying, but difficult to verify because the details are too vague to match with a judgment – and in any event such cases are not often the subject of a published judgment. What these case studies describe is certainly not what *should* be happening in family courts, but how accurate they are is difficult to tell. We raised the same query in respect of the MoJ review – how will the reviewers assess what they are told by one party?
In one particular example featured in the recent media campaigns we have been able to cross check with published judgments, because the complainant who says she has been wronged by Family Courts is Vicky Haigh, a mother whose case has generated seven published judgments over a number of years (Vicky Haigh’s case was also taken up by Christopher Booker in numerous of his columns before his passing). In that case we complained first to the newspaper and subsequently to IPSO (that complaint is currently under consideration) because the news article bore no resemblance to what the judgments tell us. But had Vicky Haigh not been named in the judgments in her case (naming of parents is very unusual in such judgment) we would not have been able to do this.
We are really worried about how the public, and how policy makers can separate the wheat from the chaff when relying on the accounts of one parent in highly contentious cases. So, we certainly have an interest in a research project like this becoming reality.
At the moment our thoughts are these :
How will researchers identify which case file they need to be looking at? They would need some method of identifying the right case (names or case number), and to be able to confirm they are comparing the right case file or judgment to the published article.
Will the journalist cooperate? Unless a news item is sufficiently detailed to be able to match it with some confidence to a published judgment (assuming one is published at all), when an approach could be made via any legal representatives named in the judgment or to the court that published it, the only route for a researcher to identify the case is going to be through the journalist who wrote the piece.
Journalists are (understandably) protective of their sources, and parents who give these accounts may have many reasons for not wanting to be contacted.
Journalists too may have many disincentives to cooperate. Firstly, they may have better things to do with their time, and secondly they may not welcome the scrutiny of a story based on a single source and which has not been verified. The secrecy of the Family Courts has over the years acted both as a useful headline and as a defence for journalists who are prepared to rely on anecdote and subjective accounts – it is difficult to challenge them where so little information is in the public domain and where there are restrictions on what can be reported.
Reputable journalists who attempt to verify their sources are more likely to cooperate, but any research project would want to ensure a representative sample, and if there are reports that do not give a fair and balanced picture of what has really happened in a case, it would be important that the study should identify that.
Next, even if those initial hurdles could be overcome there would need to be a scheme for granting permission to the researchers to see the file – and possibly to speak to the other party in the case for balance. As the journalist Melanie Newman has recently found out that is not always straightforward, and her ongoing application to see the court file / bundle in a case has led to a range of interested parties mentioned in the papers being asked for their view before the application is decided. This is all very cumbersome.
@louiseTickle I've been granted permission to tweet about the case finally. I can now explain I applied to see the case file in March 2019, that so far there have been three hearings, a case management hearing is planned for February and a 2/3 day hearing in March 2020. https://t.co/46OCjDPWW4
— Melanie Newman (@Melanie_Newman) November 21, 2019
To play devil’s advocate for a moment, if journalists like Melanie were able to thoroughly research cases of apparent injustice without such barriers to access to court material the President might have more confidence when reading a news report that it was likely to be soundly based in evidence rather than anecdote alone. But the reality is that whilst some journalists are undoubtedly put off covering these cases because of the time, cost and hassle others just operate a business model which doesn’t depend upon investigative grunt work at all – some journalists and publications simply prioritise newsworthiness over accuracy.
And then – its worth remembering that
- the court file may well be incomplete
- if the parties have been litigants in person there may be no bundle to refer to as a repository of the most relevant information
- any judgment may not have been transcribed – to know what the court’s reasons were it may be necessary to obtain and transcribe a judgment held on audio in an archive
- any judgment will necessarily only include those matters that the judge has considered relevant – where the issue is a failure to take domestic abuse seriously or to deal with it that is not necessarily going to be found in a judgment
- matters that have been raised orally at an early stage or that a party has not committed to writing in a statement are unlikely to be visible from a court file, judgment or bundle – they will be effectively occult. So again, the court tape would need to be listened to in order to see what was raised at an early stage and how the court responded (and some litigants in person will not even have articulated abuse verbally).
Incidentally, this issue of the early responses of the court to allegations of domestic abuse is one we are interested in at the Transparency Project, and we are hoping to use the legal blogging pilot to observe a full day’s list of FHDRA (first hearings) in child arrangements cases, to see whether any patterns or issues emerge. Those hearings set the direction of travel for a case and are often the point at which a court will decide whether to hold a fact finding hearing or not.
Finally, before any report could be published there would need to be a mechanism for relaxation of the automatic reporting restrictions that would otherwise prevent the dissemination of the research.
We don’t want to sound pessimistic – there may be ways to cut through these various obstacles that we haven’t yet thought of. But we put them ‘out there’ to try and prompt a discussion about how that might be done. Email us email@example.com or tweet us at @seethrujustice
One seed of a more constructive idea is whether or not journalists and (say) lawyers might work collaboratively through as part of a project team to use adverts and social media to invite those who have told their stories to the media (or the MoJ review) to come forward to be re-interviewed, to consent to access to their files, for the other party to be interviewed if willing, and for the journalist and lawyer to be permitted to write independently about the case – with the lawyer able to support the journalist to understand some of the procedural or legal issues, and with what to look for. However, just as some journalists may be disinclined to subject their work to scrutiny, some parents may also be reluctant to subject themselves to further scrutiny – it is one thing to give your account unchallenged and anonymously, but quite another to know someone will be looking over your file to check out what you’ve said – and to hear the alternative viewpoints that would most likely counter it – in circumstances where many of these complainants feel like they have not been listened to the first time around.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. You can find our page, and further information here.
Thanks for reading!
Feature pic : Private No Entry by Brad Highham on Flickr – thanks (Creative commons)
This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks