Transparency: The Long-Awaited Facelift of Judicial Reform?
Author: Jessica Craig– University of Edinburgh
“I’ve had so much plastic surgery, when I die, they will donate my body to Tupperware,” quipped Joan Rivers – with characteristically acerbic wit. The current state of the family courts reflects a wear and tear of its own. As Cris McCurley (Law Society ‘Access to Justice’ Committee Member) has recently said: “the entire family court system is creaking after years of austerity cuts and neglect.” To put it bluntly, the system is “ageing badly, and starting to look like a carrier bag full of cheap mince that’s been kicked down a towpath in the rain.” It needs root and branch surgery – as radical as the style revamp at Vardags, from staid and stuffy Saville Row to glittery pink Doc Martens and gold leather trousers. In that context, the question arises as to whether the recent Transparency Proposal – to open up family courts to media reporting – is likely to significantly impact the substantial change needed in the family courts, as the introduction of no-fault divorce did in 2022, or whether it is just a cosmetic change, a superficial facelift.
As things currently stand, judgments in the family court are anonymised and the media are, for the most part, prohibited from reporting hearings. In his 2021 report on Confidence and Confidentiality: Transparency in the Family Court, Sir Andrew McFarlane suggested that this standard practice “has had the contrary effect of undermining confidence in the administration of family justice to a marked degree.” He called for a “major shift” in making transparency the “new norm,” amidst a “glacial” pace of reforms. The Transparency Proposal accordingly seeks to reverse the presumption that the media will not be allowed to write about proceedings, with the presumption instead that they will be able to do so, albeit that the parties will remain anonymous.
A Transparency Pilot scheme was launched in 2023 and has been rolled out in Leeds, Cardiff, and Carlisle, with more to follow in 2024. Under the scheme, the media are to be given copies of case outlines, skeleton arguments, summaries, position statements, threshold documents, and chronologies, in addition to judgments. The lifting of secrecy that has shrouded judicial decision-making, the “cheetah-print jaw bra” of the family law courts, is supposed, therefore, to be a crucial step in bolstering public confidence in the system.
Welcome as that may be (at least to some), in reality it offers actual court users little more than a surface-level improvement and fails to tackle the far more serious structural issues that need to be grappled with. The average duration for family law cases (particularly ones involving children) has increased from 24 to 47 weeks since 2016. As the then President of the Law Society, Lubna Shuja, commented in August 2023: “What is often missed in the debate around the unacceptable backlogs in our family courts is the impact on children. They are suffering the very real consequences of months and sometimes years of uncertainty about their future, preventing them from having the stability they need to thrive.”
And court proceedings are often extremely costly and breed anguish, bitterness, and animosity. The former Justice Secretary, Chris Grayling, voiced his despair for courtrooms utterly ravaged by: “confrontation, which has led to huge legal bills, bitter infighting and ultimately empty coffers to support the new lives of separated spouses and their children.” This was echoed by the Current President of the Law Society, Nick Emmerson in October 2023: “Without action we will continue to see thousands of couples and their children unnecessarily caught up in the legal system and unable to move on with their lives.”
Make no mistake, a little bit of plastic can be fantastic. Lord Hewart’s aphorism, that “justice should not only be done but should also be seen to be done,” is potent; it has stood the test of time across the legal sphere. “Sunlight”, said American Supreme Court Justice Brandeis, “is the best of disinfectants.” Litigation conducted where sunlight is shone on the courts “keeps the judge himself, while trying, under trial” and enhances the effectiveness and accountability of the legal process. That is not to be underestimated. In August 2022, there was widespread positive reporting of a letter written by Judge John McKendrick to two young boys who were directly affected by his decision on their care. The details of the case were kept private, but the letter reflected that, contrary to the caricature of an individual stuck in some rarefied ivorytower, the judge well understood the importance of decision that he was making and the impact that it would have at a very human, and empathetic, level: “I hope you both understand” he said, “that I have made the decision and not your Mum or your Dad. Judges sometimes have to make decisions when parents cannot agree [...] I have made this decision after considering who you both are, what you both need and things like your education, happiness and your welfare. I have decided you need each other - I think you are good brothers to each other [...] Looking at all these things in the round I felt this was the best decision for you both, although of course I considered what you both wanted.” A sensitively handled judgement made available to the public can undoubtedly, therefore, serve to bolster confidence in, and to “demystify”, the system. And the public should have confidence that the system is operating justly, albeit that there may be a dislocation between what is in the public interest and what the public are actually interested in. As to the latter, in 2015, the Court of Protection (which makes welfare and financial decisions for those who lack ‘mental capacity’) launched its own transparency pilot scheme in which members of the public could attend hearings. But it transpired that no member of the public actually attended: “we have not been able to find any indication that a random member of the public has been to a hearing.” It would appear that the public may be rather more interested in watching titillating TV dramas, than turning up to see the real thing.
And that leads to this concern: what is going to be reported? And at what cost? Delineated in the European Convention on Human Rights are two crucial rights: respect for private and family life (Article 8) and freedom of expression (Article 10). These competing rights must be balanced. As Lord Hoffman said in the infamous case of Campbell v Mirror Group Newspapers (which concerned the Mirror newspaper’s photographing and reporting of the supermodel Naomi Campbell emerging from a drug-addiction clinic) neither has precedence over the other. But in an age of a seemingly insatiable hunger for the salacious, and the shocking, the risk of intimate aspects of family life being published in the name of the “public interest,” raises real concerns.
The family courts should not become a circus on which the media can descend like vultures, making participation in court proceedings more intimidating and stressful for families than it is already, or risking parties being exposed to potentially ruinous attacks. As Henry Hood wrote for The Financial Times “the press may be more interested in sensationalising family disputes than in thoughtful analysis of the system.” As Lord Leveson stated in his report on phone hacking: “There are enough examples of careless or reckless reporting to conclude that discriminatory, sensational or unbalanced reporting [...] is a feature of journalistic practice in parts of the press, rather than an aberration.”
The examples are legion: the articles that incorrectly stated that an illegal immigrant could not be deported because of his ‘pet cat’; the libellous reporting by eight separate newspapers following the trial of Christopher Jeffries (a man wrongly accused of murder), depicting him as a “monster,”; or the slew of fallacious articles published stipulating that a serial killer had been given access to hardcore pornography in the name of ‘Human Rights.’
Quite apart from these risks, and that the media will reduce difficult and complex issues into newsworthy soundbites, serious damage could be done to a child in seeing salacious details of their lives being reported, even if the names of their family members are anonymised. Children themselves appear to be unenthusiastic about the reporting of cases. In 2010, the Children’s Commissioner for England (CCE) published a study in which children were asked their views of press access to their court proceedings. The vast majority were against the idea. The report concluded that: “issues which children consider private [...] painful, embarrassing or humiliating in content [...] are not the business of newspapers or the general public.” But in the 2022 case of Gallagher v Gallagher, Mr Justice Mostyn ruled that distress to parties caused by publication of case details are insufficient grounds for restricting media access to family courts: “collateral impact…is part of the price to be paid for open justice.” Yet
collateral impact is not to be diminished. Bad journalism could cause irreparable harm.
Some say revenge is a life best lived, others may declare it’s watching their ex decompose before their eyes. Both may be true to some, but the latter seems to be more reflective of the ‘revenge’ that may be enacted in family proceedings. Parties may use litigation PR strategies to try to play the media to attack their partners. Take for example, the vicious multijurisdictional Depp v Heard proceedings: “What has been hidden while sensational accusations were going on inside the High Court is the other battle, fought outside: a conflict that has weaponised social media and the comment pages of newspapers […] It has the hallmarks of a public relations surge; if it is, then it may be the biggest attempt yet to shore up a high-profile reputation.” There is also a risk that in allowing reporters such extensive access to the family courts, including to various documents filed by the parties, a significant burden will be placed on the parties involved in proceedings, who, as a result, may be far more reticent to disclose private information. As Sir Andrew McFarlane himself acknowledges: “knowing that their evidence may be made public is unlikely to increase a witness’ willingness to admit to abusive behaviour.” As Catherine Thomas (Former* Vardags Managing Director) astutely noted in an article for The Global Legal Post: “In a world where the public (and therefore the press) are fascinated by the details of other people’s divorces, even if they are not in the public eye, it seems inevitable that the discreet and swift process of arbitration will increasingly be seen as a sanctuary for separating couples.”
So an unintended consequence of the Transparency Proposal may well be that parties (or at least those parties that can afford to) will litigate their family disputes in a private and confidential forum. That is not, however, to denigrate, alternative methods of dispute resolution, even if private and confidential. To the contrary, more public funding for mediation and counselling prior to court action could go a long way to prevent ‘low-level’ cases making it to the courtroom and alleviating the backlog of court proceedings. Take for example, Joe Jonas and Sophie Turner, who filed to dismiss their divorce case after a successful mediation. Indeed, the temporary agreement that the estranged celebrity couple reached through mediation in relation to the custody of their two young children, has put a stop to a (potentially) acrimonious and prolonged cross-border dispute. And contrary to a misconception that mediation is only for the rich and famous, in July 2023, the Ministry of Justice announced an intention to reform the justice system by making mediation free (for civil disputes of up to £10,000) in an effort to unburden the court: “It is estimated that greater use of mediation could positively impact up to 92,000 cases per year. This could free up to 5,000 sitting days a year, providing a substantial boost to court capacity.”
The fact remains, however, that the family court system is in need of much work. Dickens hated lawyers with a passion. The case of Jarndyce v Jarndyce in his novel Bleak House, was a damning indictment of the legal process: “Jarndyce v Jarndyce drones on. The scarecrow of a suit has in course of time become so complicated that no man alive knows what it means...” For many current users of the family courts, Dickens’ observations may feel rather more real than a curmudgeonly nineteenth century satire.
The public have a legitimate interest in knowing what goes on in the family courts and if they are opened up to the media, one of the failings of the court, a general lack of confidence, may perhaps be remedied to a degree (assuming that the public have an interest in learning more about the system). But the Transparency Proposals are essentially tinkering around the margins and will not address the fundamental structural problems in respect of costs and delay that the family courts are facing. It is difficult to resist the conclusion, therefore, that at best, they are skin-deep – a superficial facelift, that may look good in and for the media. But more than that, the proposals do not come without substantial risk, including that the media will intrude upon, and sensationalise, highly private and sensitive matters involving adults and children at a particularly vulnerable and stressful time in their lives and that those that can afford it will take their disputes to arbitration. May Tupperware not become the future of the family justice system.
*Vardags have made this edit to acknowledge that Catherine Thomas is no longer employed by the firm.
Bibliography
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Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22
Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB)
Depp v Heard [2022]
Fields v Fields [2015] EWHC 1670 (Fam).
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