Legal In General

Home > News One in four contemplate leaving family law following lockdown: Resolution survey A quarter of family justice professionals are on the verge of quitting the profession as the toll of lockdown on their mental health becomes clear, Resolution has revealed, ahead of the release of a landmark wellbeing report. Over 1,200 family law practitioners surveyed for the report, which will be published during Resolution's National Conference, say that a combination of long working hours, heavy workloads, client expectations and working in isolation has stretched them to the limit. More than half (51 per cent) of those surveyed said they had considered leaving the profession at some point in the last three years because of concerns about their wellbeing. At the time of the survey, 26 per cent were actively considering leaving the profession. It comes after family practitioners helped to successfully cut backlogs in the family court by sitting more days than ever before during the pandemic. Although this demonstrates practitioners' dedication to supporting clients and commitment to family justice, it does raise significant questions as to whether this additional workload is sustainable or desirable. The survey found that as many as 57 per cent of practitioners work more than eight extra hours during the week – an additional working day each week. Almost all (88 per cent) needed to work during annual leave and 64 per cent of practitioners said they usually or always feel fatigued during the working day. Worryingly, of those who are considering leaving the profession, almost half (45 per cent) are junior practitioners highlighting a significant risk of a generational 'brain drain' of young talent leaving the sector. Remote working has presented barriers for younger practitioners, for example their professional development has stalled by not being able to learn from senior practitioners. Although awareness of wellbeing has grown in recent years the survey found that 43 per cent of practitioners still felt uncomfortable talking to their employers or workplaces about work-related stress and pressures. Juliet Harvey, National Chair of Resolution, said: "It's clear lockdown has taken its toll on the collective wellbeing of family justice professionals and if the profession is to recover, we need to ensure practitioner wellbeing is a top priority. "The fact that a quarter of family professionals are actively considering leaving the sector should be of concern to everyone. If firms fail to embrace flexible working and better wellbeing support, I fear we could lose the next generation of family practitioners. "This report is an important first step in acknowledging and addressing this issue, and I'm delighted that Resolution has been joined by LawCare, as well as the FLBA, CILEx, ALC and LAPG in getting the findings in front of as many practitioners (and their firms) as possible, and demonstrating a shared commitment to supporting the wellbeing of our respective members." Elizabeth Rimmer, Chief Executive at LawCare, said: "What comes through loud in clear in these findings is that, as a community of practitioners, educators and regulators, we have work to do. We need to start taking positive steps to change the culture in law. "This report is a catalyst for action to start creating everyday habits in family law that support wellbeing, such as good supervision, training for managers, and creating a positive work-life balance. "These changes start with each of us, and with these findings coming during Mental Health Awareness Week, we should all take the opportunity to reflect on how we can better support ourselves – and each other – so that we can in turn better support our clients." 16/5/21

Home > Judgments AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 This case concerns the legal framework and circumstances in which an application under the inherent jurisdiction for the revocation of a lawfully made adoption order will be granted. ___ A (aged 18) and B (aged 16) were adopted by Mr and Mrs X in 2011 following the conclusion of care proceedings which had concluded in 2010 with the making of care and placement orders. However, since 2018, A and B had returned to live with their natural maternal family, the placement with Mr and Mrs X (the adoptive parents) having permanently broken down. All parties agreed that the adoption order should be revoked. The Court considers the legislative framework and case law given the lifelong implications of the changes to the legal relationships of the people concerned. The only statutory ground for the revocation of an adoption order (under Adoption and Children Act 2002, section 55) was not applicable in this case. The applications were therefore brought under the inherent jurisdiction, it being well established that the Court has the power to revoke adoption orders. The Court observes the characteristic finality of an adoption order but notes that it is well established that it is not immune from challenge and this had not changed with the coming into force of the 2002 Act. However that finality is such that it is only in very limited circumstances that the Court will be persuaded to exercise its discretion to revoke the adoption order, that judicial discretion being "severely curtailed". The circumstances will be "exceptional and very particular". The Court adopts the key principles as identified by Sir James Munby P in Re O (A Child)(Human Fertilisation and Embryology: Adoption Revocation) [2016] 4 WLR 148  Three issues arose between the parties. First, what limitations, if any, are there in the categories of cases the court can consider whether to exercise its inherent jurisdiction to revoke an adoption order, second, whether welfare can play any part in the exercise of the court's discretion relating to the inherent jurisdiction to revoke an adoption order, and, third, the extent to which the court can exercise jurisdiction in relation to A who is now 18 years, although 17 at the time the proceedings were commenced. Having reviewed the relevant case law, Theis J sets out the relevant legal principles at paragraph 80 and concludes that the discretion of the Court to revoke an adoption order is severely curtailed "each case will turn on its own facts, the highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to matters such as a fundamental breach of natural justice." Welfare can, in appropriate cases be taken into account; this will vary depending on the particular circumstances of the case. The jurisdiction to revoke the order did extend to an adult applicant. Whilst no single factor was determinative, viewed as a whole the balance came down firmly in favour of revocation. Case summary by Kieran Pugh, Barrister, Coram Chambers For full case, please see BAILII

Gender-critical opinions and philosophical belief: Forstater again Regular readers will be aware of Ms M Forstater v CGD Europe & Ors [2019] UKET 2200909/2019, which we noted here: a wrongful dismissal case in which Maya Forstater argued unsuccessfully that her belief that “sex” is a material reality which should not be conflated with “gender” or “gender identity” was a protected philosophical belief within the terms of s.10 Equality Act 2010. She appealed, and the Equality and Human Rights Commission intervened in the recent hearing by the EAT. The EHRC has published a statement about its intervention, urging the EAT to view a gender-critical belief that sex is biological and cannot be changed as a protected philosophical belief.  The EHRC argues that, legally, there is a difference between holding a belief and how that belief is manifested and contends that the lower tribunal in Ms Forstater’s case wrongly conflated the question of whether or not the belief was protected with the way in which it was expressed. The full text of the EHRC’s submission is here. The EAT’s determination has not yet been handed down. Watch this space.  Ofsted research review on religious education Ofsted has published a research review on religious education. It concludes that “RE is vital in preparing pupils to engage in a diverse and complex multi-religious and multi-secular society”. However, it also notes what it describes as “significant challenges that limit high quality in RE”, two of which are “a lack of consideration about what it means to ‘be scholarly’ in objective, critical and pluralistic RE” and “a lack of clarity on what constitutes reliable knowledge about religion/non-religion, leading to teachers embedding unhelpful misconceptions”. Madeleine Davies has a longer review piece in the Church Times, here (£).  An official database for England & Wales judgments? Michael Cross reports in the Law Society Gazette that the Government is considering the creation of “a single comprehensive repository of England and Wales court judgments”, to be run by the National Archives. The plan is that it would publish almost every decision made by courts and tribunals. He notes: “The prospect of statutory comprehensive judgments data was cautiously welcomed by technology experts and researchers. However, it will face opposition from senior judges, who are understood to be concerned about the loss of control over judgments. The move, which would require primary legislation along the lines of the 1958 Public Records Act, would also threaten the future of BAILII, which receives one quarter of its £200,000 annual budget from the Ministry of Justice.” We very much hope that – whatever happens to the proposal – the future of BAILII will be secured, for two reasons. First, like every other legal website in the UK, we use BAILII’s neutral citations as standard and link to the judgments on BAILII whenever possible. But secondly and much more important, it’s the British and Irish Legal Information Institute, not just the English & Welsh one. A “single comprehensive repository of England and Wales court judgments” would no doubt be very useful but, for us at any rate, certainly not at the cost of losing easy access to judgments of the courts in Scotland and Ireland. Highgate Cemetery Bill The Highgate Cemetery Bill [HL], the private bill on which we last posted in January 2020, continues its slow progress through Parliament. Having been carried over from the 2019-21 Session, it now awaits a date for its second reading in the Commons. Its purpose is “to confer powers upon the Friends of Highgate Cemetery Trust to operate, maintain and improve Highgate Cemetery and to extinguish rights of burial and disturb human remains in Highgate Cemetery for the purpose of increasing the space for interments and the improvement of Highgate Cemetery; and for connected purposes”. Some (very light) reading for the weekend According to Ray Hemingray, Re Mitcham Road Cemetery Croydon [2021] ECC Swk 1 probably qualifies as the shortest judgment ever circulated by the Ecclesiastical Law Association. Comprising just six paragraphs, the case concerns the successful petition for the temporary removal of cremated remains in order that a further interment of cremated remains could be made in the double depth grave, currently prevented by their positioning. At the time of their burial, the undertakers had known of the plans for a subsequent interment but had failed to make accommodation for that eventuality.  Forum non conveniens? In Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205 (QB), handed down on Thursday, Foxton J allowed an appeal by the Church against a decision setting aside a Default Costs Certificate made by the court on 16 November 2020 in respect of Kesar & Co’s liability under a wasted costs order. The only reason for noting it here is that the substantive issue had been proceedings against the Church by various individuals, represented by Kesar & Co,  which related to various allegations of abuse by Serbian Orthodox clergy in Bosnia-Herzegovina, Croatia and Serbia between 1998 and 2014 – and on 17 January 2014, Master Cook ruled that the court had no jurisdiction to try those claims [3]. Which leads us to wonder on what basis Kesar & Co’s clients were advised that the Serbian Orthodox Church in the UK might be liable in the English courts for events involving foreign nationals that happened in former Yugoslavia. The sum total of our knowledge of private international law is zero, so we would be interested in any comments in elucidation.  Quick links Church of England: National register of clergy. Stefania Patuto, Lexology: What visa do I need to get married in the UK? Russell Sandberg, Sandberg’s Subversive Scribblings: What Next for Religion or Belief in Wales. Samantha Pritchard & Jo Coleman, Lexology: The evolution of charity law – The Charities Bill: on the forthcoming reform of the law in England & Wales. Christoph Strack, Deutsche Welle: Catholic congregations rejoice at renegade blessing of same-sex couples: on German disquiet at the Vatican’s position on same-sex relations. US Department of State: Office of International Religious Freedom 2020 Report on International Religious Freedom: United Kingdom. And finally…I And finally…II And in an Open Letter to Boris Johnson on 14 May 2021, the group #What About Weddings highlighted some of the inconsistencies in the present restrictions on weddings: “Comparable areas of hospitality and live events have higher numbers and fewer restrictions than weddings. We are now in the situation where a group of people can attend a Zumba class inside together but not dance at a wedding, where a father can hug his child outside their venue but not walk together down the aisle and where a one night stand after a boozy night in the pub is fine but wedding guests are still told to wear masks during a ceremony with friends and family.”

The top legal affairs news stories from this morning and the weekend...

Campaign launched this week aims to change the culture of parental separation to one that has better adult communication and child-centrity.

We’ve had really good feedback on our Domestic Abuse Guidance Note. However, in light of recent changes in the law and guidance (in particular the Domestic Abuse Act and the appeal in Re H-N), we will be revising this guidance note over coming months. For those interested in finding out more, take a look at our posts with #domestic-abuse. The headline is that there is likely to be reduced use of Scott Schedules and an increased emphasis on patterns of controlling, coercive and abusive behaviour rather than incidents. There is a lot happening in this area at present, so we won’t be rushing to update this too quickly – we are hoping that there will be news about the implementation of the Harms Panel recommendations before too long which we can also incorporate when we revise the guidance note. Watch this space.

Domestic Abuse Commissioner Nicole Jacobs sets out what the Domestic Abuse Act 2021 means for social workers...

The top legal affairs news stories from this morning and the weekend...

The Domestic Abuse Bill became law on 29 April 2021 and is now known as the Domestic Abuse Act 2021. The Act is vast and wide ranging, and this post covers those parts of it which bear directly on the work of the family courts. There is lots more in it that we aren’t covering here. Although it is now law, not all of the sections of the Act are in force just yet. In fact, none of those we discuss in this post are in force – but they will be coming to a family court near you at some point in the near future. The Act applies mainly to England and Wales only. If you want to read the Act itself you can find it here. There are two main areas that are relevant for those interested in or involved with Family Courts : provisions about protection for victims and witnesses domestic abuse protection orders (DAPOs) We’ll deal with those in turn, and then cover a few other bits and bobs that might be useful to know about from a Family Court perspective. PROTECTION FOR VICTIMS, WITNESSES, ETC IN LEGAL PROCEEDINGS Sections 62 to 67 of the Act deal with these issues, and there are three aspects to the new laws : special measures prohibition on direct cross examination amendments to s91(14) of the Children Act 1989 Special measures Special measures in the Family Court are dealt with in section 63, and there are equivalent provisions for civil courts in section 64 (by civil courts we mean the County Court, which deals with mostly non-family work but is responsible for a few things that are connected to families). It’s important to remember that some family matters are not heard in a family court – disputes between former cohabitees about the ownership of property (known as ToLATA proceedings after the Trusts of Land and Appointment of Trustees Act) are technically civil proceedings and therefore dealt with in the County Court (though often by judges who also sit in the Family Court). It’s worth noting that as of 6 April 2021 the overriding objective in the Civil Procedure Rules (‘CPR’) (which apply to all cases in the County Court) has been amended to make it clear that ‘dealing with a case justly’ includes ensuring that the parties can participate fully, and that parties and witnesses can give their best evidence, and there is a new Practice Direction 1A which makes provision for how courts will give effect to the amended Overriding Objective in relation to vulnerable parties or witnesses. This brings the CPR broadly into line with the Family Procedure Rules (which apply to all cases in the Family Court), which already have equivalent provisions that you can read about in Jack’s post here (Although the Civil Overriding Objective is in fact more explicit on the issue of vulnerability than the one in the Family Rules). For our purposes, what all this means is that broadly the same situation applies to all family law cases, and that includes cohabitee property cases, even though they aren’t technically in the Family Court. Back to the Act : Section 64 creates a presumption where a party or witness is or is at risk of being a victim of domestic abuse from a member of their family or a witness or party in the proceedings, that the quality of their evidence and / or their participation as a party is likely to be diminished by reason of vulnerability. An exception may be made where the person who is vulnerable does not want to be treated as eligible for special measures. ‘Special measures’ are just defined as ‘such measures as may be specified by rules of court for the purpose of assisting a person to give evidence or participate in proceedings’. The Family Procedure Rules, and now the Civil Procedure Rules already cater for this (in the FPR by Rule 3A and PD3AA), so the difference is in the presumption that a victim of domestic abuse will need and be entitled to special measures, as opposed to them having to justify their eligibility. The provisions about special measures are not yet in force and a date for their commencement hasn’t yet been set. Prohibition on direct cross examination Again, there are similar provisions on this topic for Family Courts (section 65) and Civil Courts (section 66). Section 65 amends the Matrimonial and Family Proceedings Act 1984 (‘MFPA 1984’, the Act which was amended in 2014 to create and define the powers of the Family Court), adding new sections 31Q and onwards. The wording of these sections has been around for a number of years, because there have been attempts to pass them via various bills over several Parliaments. Those new sections will mean that where : a party has been convicted, cautioned or is charged with a ‘specified offence’, or is the subject of an on-notice protective injunction, or where ‘specified evidence’ is adduced that a party has carried out domestic abuse then there is a ban on the (alleged) victim and (alleged) perpetrator cross examining one another (there are some exceptions for spent offences). If for some reason the court hasn’t realised there is a conviction / protective injunction and allows the cross examination to go ahead this doesn’t make any decision null and void as a result. The Act tells us that ‘specified evidence’ will be defined in regulations. Those regulations haven’t been made yet so we don’t know exactly what will be required. It’s worth noting that the trigger for the ban is that the evidence is ‘adduced’. The evidence does not have to be tested or accepted as valid for the prohibition to kick in – so we can anticipate that the ‘specified evidence’ is probably going to have to come from a source or otherwise be likely to have some degree of reliability (for example to come from a specified professional and / or based on contemporaneous records or medical examination). The Act tells us that ‘specified offence’ will be defined in regulations. Those regulations haven’t been made yet, but based on drafts circulating in previous Parliaments it is likely they will include violent offences, sexual offences, offences of domestic abuse / coercive control and possibly harassment and / or breaches of domestic abuse protective orders (it would probably be possible to check back through Hansard to see if there is any further detail available about the intended list of specified offences but that would have been very time consuming). In addition to the automatic prohibitions, which the judge has no say in, there is a catch all provision in what will be section 31U of the MFPA 1984, which gives the court a power to prohibit a party from cross-examining even if none of the above applies but where it appears to the court that either : the quality of evidence given by the witness is likely to be diminished if the cross-examination is conducted by the party in person, and it would be likely to be improved if the prohibition was imposed; OR the cross-examination by one party in person would be likely to cause significant distress to the witness or another party and that distress is likely to be more significant than if the cross examination were conducted some other way. This last ‘more significant’ requirement is to filter out cases where the cause of the distress is unconnected to the identity of the person asking questions. The court can exercise its power under section 31U to make a discretionary prohibition order either because it has been asked to do so, or because the judge has decided herself that it would be appropriate even though nobody has asked. Before making a decision the judge has to consider the views of the witness / proposed questioning party; the nature of the questions likely to be asked, having regard to the issues in the case; any behaviour findings in these or other proceedings against either the witness or proposed questioning party; any behaviour by the party at any stage of the case, both generally and in relation to the witness / party; and any relationship (of whatever nature) between the witness and the party. In addition, the judge can make a direction if it would not be ‘contrary to the interests of justice’ to do so – that means that the judge can’t make a prohibition direction if overall it would make things unfair in some other way. The court can change its mind on the request of a party part way through, but it has to give reasons if it does so. The power under this section might be used in cases of domestic abuse that for some reason don’t quite fit in the mandatory sections, but it could also capture cases where a party or witness is vulnerable for some other reason, for example because they are particularly emotionally fragile due to a mental health difficulty and would manage cross examination by a neutral professional much better than from their ex partner. So what happens when there is a prohibition in place? How does cross examination happen? A good question. This is dealt with in what will be section 31W MFPA 1984 ‘Alternatives to Cross Examination’. There is a staged process : The court must consider whether (ignoring this section) there is a satisfactory alternative means for the witness to be cross-examined or of obtaining evidence that the witness might have given under cross-examination in the proceedings. If the court decides that there isn’t, the court must invite the prohibited party to arrange for a qualified legal representative to act for them for the purpose of cross-examining the witness, and set a date by which they must notify the court of whether they have done so. If at the end of that period the court has been notified there is no qualified legal representative appointed or there has been no notification and it appears to the court that no qualified legal representative is to act for this purpose the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court to represent the interests of the party. If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the party. Where the court appoints a lawyer then the lawyer is not responsible to the party. Their role is limited to cross examining, rather than advice or full representation throughout the hearing. Lawyers will be overjoyed to hear that the Lord Chancellor is in charge of fixing the rates of payment for this work and for issuing guidance to lawyers about their role in such cases. The fees will be paid from ‘central funds’ rather than legal aid. Once again, these provisions are not yet in force and a date has not yet been set. It remains to be seen how well these new arrangements work in practice. It is probably not ideal for a party to have a lawyer swoop in and ask questions of their choosing, probably with no mechanism in place for them to take instructions or properly understand the case put by the ‘client’, beyond reading their witness statement. It may well make for less effective cross examination, does not enable a party to direct the advocate as to the points s/he wishes to be put (albeit this is always a matter for the judgment of the advocate, the party has even less input here), and it does not offer full protection to a vulnerable witness or party because the party cannot be prohibited from causing distress at other points in the trial through their submissions (either by the content and tone of them or the sound of their voice) or their behaviour, although other special measures might mitigate some of those difficulties. Moreover, it is quite likely that the rates of pay and ethically compromising position an advocate under this scheme would be placed under will make this work quite unattractive to lawyers. It is quite possible that the rates of pay will mean that the cab rank rule does not apply. For all those reasons, there might be difficulties securing advocates of sufficient experience and expertise to carry out this work. There remain some real question marks about how much of a fair trial this will afford to either party. On all these points only time will tell. Amendments to s91(14) of the Children Act 1989 (‘Barring orders’) S91(14) of the Children Act 1989 is the piece of law which, in appropriate cases, allows the court to say ‘enough’ and to prevent a parent coming back to court to make further applications without first obtaining permission from the court to do so. These are often informally known as ‘barring orders’, although they aren’t in fact a complete bar to another application. s91(14) is typically – but not always – used where there have been repeated vexatious or unmeritorious applications or protracted proceedings. You can read a bit more about the existing case law on s91(14) via the judgment linked in this post by Julie Doughty and in Re P (an old but still applicable case which gave guidance on s91(14)). Section 67 of the Domestic Abuse Act 2021 will amend section 91(14) so that where the court is satisfied that the making of an application would put the child or another ‘relevant individual’ (the victim of domestic abuse) at risk of harm it may make a s91(14) order. That clearly now empowers the court to make such an order even if there has not been a history of vexatious, unmeritorious applications or protracted proceedings. Although this was always possible under the case law, s91(14) orders have very often been the subject of successful appeals, so this clarity will empower and embolden victims or childrens’ guardians to make such applications, and will give judges confidence that if they do so they are within the law. The Act also amends s91(14) so that where a parent makes an application for permission whilst a s91(14) order is in force, the court must consider whether there has been a material change of circumstances since the order was made when it decides whether to grant leave or not. That means that applications which do not demonstrate a material change in circumstances are more likely to be summarily disposed of by the court, without the respondent (in this scenario probably the victim of domestic abuse) being troubled by it. That is a slightly different approach to the one set out in Re P, which described the test on an application for leave as follows : “On an application for leave, the applicant must persuade the judge that he has an arguable case with some chance of success. That is not a formidable hurdle to surmount. If the application is hopeless and refused the other parties and the child will have been protected from unnecessary involvement in the proposed proceedings and unwarranted investigations into the present circumstances of the child.” It was put slightly differently in (Re A (Application for Leave) [1998] 1 FLR 1, CA, where the Court of Appeal said ‘The application should demonstrate there is a need for renewed judicial investigation’. Arguably, it was always the case that to satisfy the test in Re P, a parent was probably going to have to show some change in circumstances anyway, but this makes it explicit. The amendments also make clear that a s91(14) order can be applied for by a party, the child’s representatives or can be made by the court even if nobody has applied. One of the common reasons for this sort of order being appealed, often successfully, is a failure to ensure a fair process by giving advance warning that the making of such an order is under consideration – even though judges can make an order without an application from one of the parties, they will still need to ensure a fair process, because a s91(14) order is an interference with the Article 6 (fair trial) and the right o access to court, and Article 8 (family life) rights of the party affected by it. The amendments relating to s91(14) are not yet in force and no date has been specified. So for the time being s91(14) remains unchanged. DOMESTIC ABUSE PROTECTION ORDERS Sections 22-46 of the Act deal with new Domestic Abuse Notices and Domestic Abuse Protection Orders. These are a little bit like a hybrid of two sorts of orders that are already available, with a few bells and whistles that neither provide. Under the existing law, police officers can issue Domestic Violence Notices and can present a case to the Magistrates Court to secure a Domestic Violence Protection Order. The Domestic Abuse Notice / Orders will operate in a similar way – the police can issue a notice, can go to the Magistrates and effectively drive the protection of vulnerable victims of abuse without placing the responsibility on them, and hopefully giving them space to think about their options and make a break. Where the new DAPO scheme differs from the existing DVPO scheme (apart from the name) is that a DAPO can last indefinitely rather than the current maximum of 28 days for a DVPO, a suspected breach of a notice or order is arrestable (the officer just needs reasonable grounds to believe there is a breach and does not need a warrant), a breach of a DAPO will be a criminal offence, punishable by a maximum sentence of 5 years in prison. These last two reflect the current position in the case of the other sort of existing order : non-molestation orders, which are available from the Family Court. The DAPO scheme also operates across courts – as well as police being able to take the lead on a victim’s behalf, a victim who is already involved in family (or relevant civil) proceedings with the perpetrator can seek a DAPO through the Family Court. Alternatively, a Family (or civil) judge who is already dealing with a case between the parties can make an order of their own motion. So, these will be a flexible new tool for Family Courts to use. The court can make a DAPO where on balance of probabilities (more likely than not) it finds that there has been ‘abusive’ behaviour, the parties are ‘personally connected’ and it is ‘necessary and proportionate to protect the victim from domestic abuse, or the risk of domestic abuse’. That is similar to the requirements for a non-molestation order, and there are provisions for things the court must consider (such as the welfare of any relevant child) which are also very similar to the Family Law Act 1996, which deals with non-molestation orders. What is different to non-molestation orders and DVPOs is that the court can impose a mandatory requirement – i.e. it can order a person to actively do something, rather than just telling them they must not do something (typically: must not come to the house, must not contact, must not use or threaten violence). In particular, it can tell them they must attend a course, or must wear an electronic tag (we will need to wait and see whether or not a mechanism is found for the family court to exercise this power – its typically only something ordered in the criminal courts, so it might turn out that if this is required an application is best made in the Magistrates court – but again, we’ll have to wait and see). It’s worth noting that these powers apply only to ‘relevant’ civil proceedings, and those will be defined by regulations – that might mean that the powers are limited in practice to cases where the parties are current or former cohabitants or where the subject matter of the case is connected to family breakdown e.g. ToLATA proceedings – but we don’t yet know. What is curious about this new framework is that although the Domestic Abuse Act 2021 will repeal the old DVPO scheme, it doesn’t repeal those parts of Part IV Family Law Act 1996 which deal with non-molestation orders, even though the DAPO will do everything a non-molestation order could do and more. This leaves a slightly weird situation where there are two parallel choices available to those who seek protection from the Family Court – it’s possible that there will need to be some changes to legal aid to fund DAPO applications, but who knows whether the amendments will be to make funding available for both types of application, or will switch funding to DAPOs and remove it for non-molestation orders – or vice versa! In trying to unpick this conundrum we’ve come across this Factsheet produced during the passage of the Bill. It tells us that: “The Bill will repeal existing Domestic Violence Protection Orders. Other protective orders, such as Non-Molestation Orders and Restraining Orders, will remain in place so that they can continue to be used in cases which are not domestic abuse-related, such as cases of stalking or harassment where the perpetrator is not a current or former intimate partner or a family member.” This is confusing, because non-molestation orders are only available in cases where the perpetrator and victim are ‘associated persons’ which broadly equates to them being a current or former intimate partner or family member. We can’t really work out when a DAPO would be unavailable but a non-molestation order would be. We don’t entirely understand the distinction between cases of stalking and harassment and domestic abuse cases because stalking and harassment is often part of domestic abuse or takes place post-separation in a domestic abuse case. But in those cases where there is stalking or harassment between people who are not ‘associated persons’, the correct and only remedy would be an injunction under the Protection from Harassment Act 1997 – so again, keeping non-molestation orders doesn’t seem to obviously add anything and leaving them in place seems to somewhat undermine the intention stated in the factsheet that ‘DAPOs will become the ‘go to’ protective order in cases of domestic abuse’. However, the factsheet promises that ‘Statutory guidance on the orders will cover how DAPOs fit within the existing protective order landscape and scenarios in which they should be considered’ so no doubt all will become clear in due course. These provisions are – yes you’ve guessed it – not yet in force, and we don’t have a date for their commencement yet. Incidentally, we notice that there is another new piece of Scottish legislation just out, called the Domestic Abuse (Protection) (Scotland) Act 2021 which looks as if it may contain similar or equivalent provisions for Scotland, but that is beyond the scope of this blog which only addresses the position in England & Wales. MISCELLANEOUS POINTS Section 80 of the Act also introduces a prohibition on medical professionals charging a fee to provide evidence of domestic abuse, which is often a problem for those who need such evidence in order to obtain legal aid. Section 57 imposes a duty on local authorities to publish a strategy in relation to services for the victims of domestic abuse and their children. This is not directly relevant to family courts, but may be a useful document for parents’ lawyers to refer to in public law proceedings where domestic abuse has been a feature and a carer or potential carer remains vulnerable and in need of support. It may enable legal representatives and other professionals to identify and access appropriate services, perhaps of relevance in potential removal cases or at final hearing when the court is carrying out an ‘holistic analysis’ of the realistic options for children in light of the support and services which are available to them. Section 83 requires the Secretary of State to publish a report about the extent to which individuals, when they are using contact centres in England, are protected from the risk of domestic abuse or, in the case of children, other harm. That provision isn’t going to have any immediate effect since the deadline for publishing that report is 29 April 2023. UPDATES AND CLARIFICATIONS We’ve not followed all the twists and turns of the Bill as it has gone through Parliament and it’s not been practical for us to trawl Hansard for answers to some of the queries we’ve raised that might be lurking there. It may be that those who have will know some of the answers – if we are provided with any clarification, or if any becomes available through regulations or statutory guidance we will either update this post or publish a fresh one. 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. Thanks for reading! Feature pic : Big Ben Flickr by Graeme Tozer Creative Commons – thank you.

This is the REVISED text of a submission to the President of the Family Division’s Transparency Review made by Sir James Munby (former President of the Family Division), in advance of the oral evidence session scheduled for 17 May 2021. It is published here with kind permission of Sir James. We have added some hypertext links to some of the documents referred to which are freely available online. Sir James has added some revisions, which are marked below in blue. The original version can be found here. THE PRESIDENT’S TRANSPARENCY REVIEW Session on 17 May 2021 Submission by SIR JAMES MUNBY : 6 May 2021 (Revised 14 May 2021: changes highlighted) Background I was called to the Bar in 1971 and took Silk in 1988. I was appointed a judge of the High Court, assigned to the Family Division, in 2000. I was appointed a Lord Justice of Appeal in 2009. From 2009-2012 I was Chairman of the Law Commission. From 2013 until my retirement in 2018 I was President of the Family Division. I am Chair of the Board of the Nuffield Family Justice Observatory. From 1988 until 2000 I was involved as counsel in many of the most important reported cases relating to what we would now call transparency in the family courts: acting sometimes on behalf of a child, sometimes as amicus curiae but frequently on behalf of newspapers. From 2000 until 2018, as a judge, I gave many reported judgments on the same topic. I think I can fairly say that my judgments in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 82, and A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, paras 112-114, are widely recognised as definitive on the meaning and effect of section 12 of the Administration of Justice Act 1960. My perspective therefore reflects more than 30 years immersion in, thinking about and analysis of transparency from a variety of perspectives. The failure of reform That the law was not satisfactory and required reform was recognised as long ago as 1993, when the Lord Chancellor’s Department (the ancestor of the Ministry of Justice) published a Consultation Paper, Review of Access to and Reporting of Family Proceedings. It remains to this day the best analysis, in many ways, of the law and of the problems associated with it.[1] The results of that Consultation were never published and nothing more was done for over a decade. During the period from 2006 to 2009 the Department of Constitutional Affairs and its successor the Ministry of Justice carried out further Consultations.[2] During this process Government thinking underwent many changes. Eventually, what emerged was Part 2 of the Children, Schools and Families Act 2010. It was poorly drafted and never properly debated in Parliament; for a critical analysis, in both senses, see Munby, Lost Opportunities: law reform and transparency in the family courts, [2010] 22 CFLQ 273-289 (the 2010 Hershman-Levy Memorial Lecture). It was never implemented and, unlamented, was repealed in 2013: “Do the reforms which have taken place meet the criteria I have set out? Do they even meet the criteria identified by their architect? My answer to each question can only be a saddened and regretful No! … One view … is that if anything the Act is likely to reduce, rather than increase, the amount of information about children and other family proceedings which finds its way into the public. Truly, it may be thought, a lost opportunity.” During this period three things were achieved: With effect from April 2005, and as a direct result of my judgment in Re B, section 12 was amended by the insertion in section 12(4) of the following italicised words: “Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).” In short, section 12 can now be disapplied by rules of court. Amendment to the relevant rules of court followed in October 2005 and, to much more radical effect in April 2009, permitting disclosure in various circumstances which would otherwise be prohibited because of section 12: for the latter see now the Family Procedure Rules 2010 (FPR) Chapter 7 Rules 12.73 and 12.75 and Practice Direction 12G. With effect from April 2009, accredited journalists have been entitled, with certain limited exceptions, to attend family proceedings held in private: see now FPR Rule 27.11, Practice Direction 27B, Attendance of Media Representatives at Hearings in Family Proceedings, and President’s Guidance of 22 April 2009: Applications Consequent upon the Attendance of the Media in Family Proceedings: [2009] 2 FLR 167.   The practical impact of this in relation to transparency has been minimal, essentially for three reasons:    First, the new disclosure rules did not enable journalists to report what would otherwise be prohibited because of section 12: Most of the newly permitted disclosure was to those ‘inside the system’ who had a ‘need to know’. Rule 12.73(2) made clear that there was to be no “communication to the public at large, or any section of the public of any information relating to the proceedings”. (see Re N (A Child) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 58-59, 71), Rule 12.73(2) prohibited the journalist publishing what had been communicated. Secondly, the access to proceedings which had now been granted to journalists was not accompanied by any relaxation of section 12: so, the journalist could attend but could not report. Thirdly, the access to proceedings which had now been granted to journalists was not accompanied by access to the documents: so, the journalist could attend but could not understand much of what was happening. Once upon a time, in the days of my legal youth, proceedings in court were entirely oral: there was no judicial pre-reading; there was no written advocacy – no position statements or skeleton arguments; in an oral ‘opening’ the advocate took the judge, often at some length, through the facts, the documents and the law; and evidence in chief was oral. The journalist and the intelligent observer in the public gallery were thus able to follow what the case was about and what was going on. That is still, in essence, the procedure in criminal cases; in civil and family cases it has long since been consigned to history. The judge will have pre-read the bundle, there are written chronologies, position statements and skeleton arguments, and the evidence in chief is set out in written witness statements. The opening, if there is one, is attenuated. Much of the time, the hearing proceeds with such Delphic observations as “in relation to what the applicant says in paragraphs 23, 25 and 49 of her witness statement …” or “I need not elaborate what is set out in my skeleton argument except to note that …” Even the most astute and experienced journalist or observer is hard put to understand or follow what is going on.   The last point is exacerbated by the complexity and unpredictability of any application by a journalist for access to documents: see, for example, the decision in Newman v Southampton City Council [2020] EWHC 2103 (Fam), [2020] 4 WLR 108, which in places is not entirely easy to follow and is therefore difficult to apply,[3] and, in relation to the costs of redaction and copying, Newman v Southampton City Council [2020] EWHC 2148 (Fam) (appeal dismissed Newman v Southampton City Council and others [2021] EWCA Civ 437).[4] Interestingly and importantly, in the Court of Appeal King LJ commented (para 90): “This case has served to emphasise the need for the development of guidance in the form of court rules in order to assist courts in dealing with these difficult issues.” Unsurprisingly, in these circumstances, few journalists chose or choose to attend. More recently, I was responsible as President for pushing through two initiatives: In January 2014, I issued Practice Guidance: Transparency in the Family Courts: Publication of Judgments. I explained (paras 1-2) that this: “is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts …there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public”.   In October 2018, a pilot scheme was introduced in accordance with FPR Rule 36.2 enabling ‘legal bloggers’, in addition to accredited journalists, to attend family proceedings: see Practice Direction 36J, Pilot Scheme: Transparency (Attendance at Hearings in Private). The effect of this has been mixed: Compliance with the Practice Guidance has been both patchy and inconsistent. The Practice Guidance has not achieved what I had hoped and intended. The findings of two careful pieces of research are, to put it no higher, deeply troubling: see, in 2017, Doughty, Twaite and Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (see also their very helpful 4-page abridged version), and, in 2020, Bellamy, The ‘Secret’ Family Court, chapter 7: The Impact of the Practice Guidance. These two studies need to be read in full. Broadly speaking, their conclusions are very similar. Bellamy’s is particularly useful, for it covers a longer period and is more up to date. It focuses on the publication of judgments by Circuit Judges. A graph covering the period from March 2014 to March 2019 (page 95) illustrates the dramatic, and seemingly continuing, decrease in the number of such judgments published since 2015. He comments (pages 97-98): “… during that five-year period 82 family Circuit Judges did not publish any judgments at all. When the figures are analysed in detail it can be seen that only 20 judges published more than ten judgments, the rest were all in single figures. 11 judges published more than 20 judgments. There is also regional variation. In Wales only two judges published judgments. 96% of those judgments were published by just one judge. In one major court centre (Birmingham) a total of five judgments were published by three judges. In some courts – Wolverhampton, Telford and Worcester, for example – no judgments were published at all. … There are 42 Designated Family Judges in England and Wales … 18 DFJs in post when I undertook the survey have never published a judgment on Bailii.” Circuit Judges, like all judges in the family justice system, are having to cope with the intolerable pressures of ever-increasing workloads (I ignore, for present purposes, the additional pressures generated by the COVID pandemic.) And this, as Bellamy explains (pages 99-102), is undoubtedly a very significant factor when assessing the picture overall. But it does not begin to explain the astonishing differences uncovered by his, and the earlier, research. The stark reality is that much of this is because of very differing judicial attitudes and behaviours (on which see Bellamy, pages 102-111). The problem could hardly be clearer: Why had 18 out of 42 DFJs never published a judgment?     On the ‘plus’ side, recent years have seen the emergence of a new breed of tweeters and bloggers (lawyers and non-lawyers) and freelance journalists whose work is transforming knowledge and understanding of the family justice system. Their work is characterised by a real understanding of the system and a desire to explore the realities of its workings. Often very critical – justifiably so – their approach is, however, responsible and directed to explaining and improving the system. This is critically important. Many point, with every justification, to the fact that too much of the reporting of the family justice system in the traditional non-specialist media has been, and still is, uninformed, lazy, partisan, and, on occasions, tendentious, and that too often it displays cavalier disregard for C P Scott’s famous aphorism that “Comment is free, but facts are sacred” (see In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, para 27). Granted the premise, different conclusions may be drawn as to how best to proceed. My view has always been that we do best to follow the principles laid down: by Holmes J in his famous dissenting judgment in Abrams v United States (1919) 250 US 616, 630, where he asserted that “the ultimate good desired is better reached by free trade in ideas … The best test of truth is the power of the thought to get itself accepted in the competition of the market”; and by Brandeis J, who in Whitney v California (1927) 274 US 357,377, said “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Be that as it may, the point is that this new breed of tweeters, bloggers and freelance journalists is far removed from the traditional stereotype. In contrast, they are informed and diligent. And, crucially, their concern is with the facts, with the truth; indeed, it is their very inability to get to the facts that makes them so critical of the system. We can therefore ill afford to dismiss what they are saying. Developments in the Court of Protection It is relevant to note two initiatives in the Court of Protection which I undertook in my capacity as President of the Court of Protection: In January 2014, at the same time as I issued the Practice Guidance in relation to family proceedings, I issued corresponding Guidance in relation to the Court of Protection: Practice Guidance: Transparency in the Court of Protection: Publication of Judgments. In January 2016, a pilot scheme was introduced, in accordance with the Court of Protection Rule corresponding to FPR Rule 36.2, providing, as a default provision, for all hearings to be in open court, subject to an order in standard form being made restricting publication of identifying information. The pilot, which ran until November 2017, was successful and was made permanent: see Court of Protection Rules 2017, Rule 4.3 and Practice Direction 4C, Transparency. This opening up of the Court of Protection seems to have worked well and, importantly, without causing any significant problems. Interestingly, it has led to much greater outside interest in and reporting of what the Court of Protection is doing, extending far beyond the traditional legal reporting and analysis of published judgments. The blogs and tweets published by the Open Justice Court of Protection Project – Promoting Open Justice in the Court of Protection are a convincing demonstration of the many and obvious advantages which have accrued following the opening up of the Court of Protection. They are important as showing the way ahead, not least because the distinguished commentators who are the Open Justice Court of Protection Project ­– Professor Celia Kitzinger and Gill Loomes-Quinn – are neither lawyers nor journalists, attending court as members of the public. The problem  There are two major problems: First, there is the sheer complexity of the law. The number of reported cases since 1975 is enormous. The six critical words in section 12 – “information relating to proceedings … in private” – which, although section 12 has been amended from time to time down the years, have remained unchanged from the first introduction into the House of Lords in March 1960 of the Bill which became the 1960 Act, have probably generated as much litigation as any other six words on the statute book. The LCD’s Consultation Paper of 1993 runs to 134 pages; Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, the current practitioner’s ‘bible’, runs to 243 pages, not counting a further 84 pages of appendices; Burrows, Open Justice and Privacy in Family Proceedings, runs to 216 pages. Secondly, the case-law establishes that there is a crucially important distinction between publishing merely “the nature of the dispute” (which is permissible) and publishing “the substance of the matters” (which is not permissible). There are five cases which bear on this: Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246, X v Dempster [1999] 1 FLR 894, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11, and S v SP and Cafcass [2016] EWHC 3673 (Fam), [2017] 2 FLR 1079. The judgment of Wilson J, as he then was, in Dempster was the first to explore the distinction and remains, in many ways, the most important; it comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. It is no criticism of Wilson J, but rather of the state of the law, that his analysis (and the same goes for all the other cases) is essentially subjective and thus unlikely to be of much use to even the most experienced journalist. The consequence of this is that, irrespective of what a lawyer may think it means, section 12 has a seriously chilling effect on what people – families, journalists and legal bloggers – think can be published: Given that a breach of section 12 involves contempt of court – for which the penalty is imprisonment or unlimited fine – a legal blogger or journalist without access to appropriately skilled legal advice, and even one who is well advised or knowledgeable but has a lot to lose professionally and personally if they or their lawyers interpret the scope of what is permissible differently from a judge, is bound to err on the side of caution. This usually means that very little is published in the absence of a published judgment, and, even then, only what can be gleaned from the judgment. The cost, in terms of time, effort and potential legal costs, and the unpredictability of the outcome, mean that an application to the court to disapply section 12, whether in part or in whole, is typically undertaken only by the most determined. The practical reality I fear is that, because of the complexity and lack of clarity, too many in the media – commissioning editors, journalists and even media lawyers – just do not want to go there; let alone getting to the stage of making an application in what, rightly or wrongly (and it does not matter which), many feel is a hostile, conservative environment that does not like the press or any sort of scrutiny. The complexity and uncertainty in the law, coupled with the professional reality that few family lawyers (and not even all media lawyers) are actually masters of all the learning, means that legal advice is likely to be very cautious, whether the issue is the meaning and effect of section 12 or the possibility of its disapplication. Let me illustrate this with a far from fanciful example. Suppose a demonstration is held outside a family court, the demonstrators holding up banners, each showing the photograph of a judge and, in quotation marks, what the judge is alleged to have said in court. Does section 12 mean that film of the demonstration cannot be broadcast on the local television news unless all the words on all the placards have been obscured? The purist might think it does. The thoughtful, watching a sea of pixelated images, might think this tantamount to censorship of the reporting of an important event. The average viewer might join Mr Bumble in thinking that “the laws is a ass – a idiot.” And would it make any difference if the quotations were in fact fabrications – for then one would have the curious consequence that it would be lawful to broadcast untruths though unlawful to broadcast the truth? The consequences The consequences of all this are profoundly serious. I identified the issues as long ago as 2004 in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. Nothing which has happened since has caused me to alter the analysis. Quite the contrary. There are four major problems: It causes serious and continuing reputational damage to the family justice system: There is a public interest in promoting and maintaining the confidence of the public at large in the family courts, an interest underscored, as the Strasbourg court has repeatedly stressed, by ECHR Article 6. The reality is that confidence is at a low ebb because of perceptions that the family justice system is failing and that there are miscarriages of justice. We cannot afford to proceed on the blinkered assumption that all is well and that there have been no miscarriages of justice in the family justice system. We know there have been and continue to be. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential, not least because, in the very nature of things, the initial ‘official’ response to any allegation that there has been serious error is likely to be one of scepticism or worse. But that, it might be thought, is all the more reason why there should not be restraint, why the media should not be hindered in their vital role. It prevents parents and children speaking out: Parents and relatives such as kinship carers often want to speak out publicly; sometimes children also do.[5] The workings of the family justice system and, very importantly, the views about the system of those caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system are so serious and life changing that they require open and public debate in the media. It is important, in a free society, that parents, relatives and children who feel aggrieved at their experiences of the family justice system are able to express their views publicly about what they conceive to be failings in the judicial system or on the part of individual judges. It facilitates the peddling of untruths: One of the disadvantages of the “curtain of privacy” to which Balcombe LJ once referred – what some campaigners would prefer to characterise as the cloak of secrecy surrounding the family courts – has become apparent. Those who without justification attack the family justice system can all too easily do so by feeding the media tendentious accounts of proceedings whilst hypocritically sheltering behind the very privacy of the proceedings which, although they affect to condemn, they in fact turn to their own advantage. It is all too easy to attack the system when the system itself prevents anyone – even the responsible journalist or commentator who wants to print the truth – correcting the misrepresentations being fed to the media. The simple fact is that too relentless an enforcement of the privacy of family court proceedings is counter-productive; the rule of confidentiality facilitates the dissemination of false and tendentious accounts of proceedings in family courts, which in turn tends to further undermine public confidence in the system. The point was well captured by Ryder J, as he then was, in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005] 1 FLR 648, para 22: “In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.” In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, I said this (paras 1, 43-45): “This is an application … for a reporting restriction order in a matter which has been the subject of much reporting and comment in the media both in this country and around the world. Too much of that reporting has been inaccurate – though that, as I shall explain, is not entirely the fault of the media – and some of it has been tendentious, to use no stronger word … Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public? The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.” It prevents the judges being held properly to account: As Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, “freedom of speech is the lifeblood of democracy … It facilitates the exposure of errors in the … administration of justice of the country.” The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. In his great speech in Scott (otherwise Morgan) and another v Scott [1913] AC 417, 477, Lord Shaw of Dunfermline quoted Bentham to powerful effect: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” Yet the effect of section 12 is to hobble the media. This last point is fundamentally important and requires elaboration. Holding to account Let me postulate a simple hypothetical example. A journalist or legal blogger attending a hearing listens to a discussion between the judge and advocates about the arrangements for a future fact-finding hearing. Notwithstanding section 12, in my opinion (though I could understand a journalist or legal blogger being more cautious), it is permissible for the journalist or blogger, in identifying the issues being discussed, to refer, for example, to: How much of the bundle the judge needs to read before giving directions. How many and which of the allegations (one of rape) should be the subject of fact-finding. The need for any fact-finding and the likely impact of any findings on future contact. Whether the complainant should have the use of screens. Beyond that, section 12 prohibits not merely publication of even anonymised extracts from the journalist’s or blogger’s shorthand notes (or from the transcript, if available) but also any account of how the judge dealt with the issues. The journalist or blogger is dismayed – perhaps appalled – by what the judge has said, or indeed by what they observe of his non-verbal conduct or of the interactions and dynamics in the courtroom, as indeed, let us suppose in our hypothetical example, would be the vast majority of right-thinking family practitioners and members of the public. What is the journalist or blogger to do? Ask the judge who is to be criticised to authorise publication? Many, and not only the most cynical, might understandably baulk at the very idea. There is a profoundly important, if very simple, question: how could publication of this material in totally anonymised form (except for the identity of the judge) possibly damage anyone other than the judge? The answer is obvious – it could not – unless it is to be said that it would damage public confidence in the family justice system. To that objection, the answer is equally obvious: how is confidence in the system maintained by concealing the truth, however disagreeable, embarrassing or even career-damaging? Quite the reverse.[6] Is section 12 a necessary protection or an objectionable obstacle? The answer is clear. If it is said that my example is fanciful, I need only refer to the recent judgments in notorious appeals: JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. What this illustrates, I have to suggest, is: The chilling effect of section 12 and just how serious an obstacle section 12 is to publishing the truth about what is going on in the family courts and to achieving proper accountability. That there are cases – who knows how many, but I fear too many – where the only person being protected by section 12 is the judge – not the family, not the children, nor other lay participants – a person who, in the public interest, ought to be held to account. The irrefutable truth of the Benthamite proposition that only constant exposure to the public gaze keeps judges up to the mark. There are a number of further linked points: What I have said in relation to the judges has equal traction in relation to other public officials and public bodies. Section 12 not merely stands in the way of judges and other public officials being held to account, it also hinders and to a significant extent prevents what one might call “internal transparency” – the ability of a system to reflect, having had a mirror held up, and to learn and where necessary to effect cultural change. By this I mean not just change of culture in relation to transparency but also cultural change more generally, for example in attitudes to domestic abuse. Publication of judgments – many, many more judgments than at present ever see the light of day – is vital. However, it is not a panacea. A judgment, after all, contains only what the judge chooses to include, but a critic may wish to argue, for example, that the judge has misunderstood the evidence or overlooked important matters or, as in the appeals in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, where the vitally important context was revealed only when the transcripts were produced, has arrived at his conclusions by a process which was unfair or worse. Even if the judgment has been published, section 12 precludes discussion of any of those matters. Why? As I said in Re Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, para 110: “if what is being said is that there has been a failing in the judicial process, it might be thought – and certainly will be thought by some – to be less than satisfactory that the only accounts of what has happened, the only explanations to be given to the public, are those which a judge thinks it appropriate to include either in a judgment or in a judicially approved press release. After all, the complaint may be that the judge has misunderstood the evidence, overlooked some vital piece of evidence or gone against the weight of the evidence – and how can that case be made if the only material available to the public is the very judgment whose alleged deficiencies are under challenge?” The standing of the family justice system today In relation to all of this, I venture to quote what I said in A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, para 133: “… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 … And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’ I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.” Matters are no better today. If anything, they are worse. Down the years the focus of criticism has shifted from time to time. In 2004 the concern was as to the quality of expert evidence in cases of sudden infant death. Subsequent concerns related to wider problems in the care system: the issue of so-called ‘forced adoption’; concerns that too many children were being taken into care; and, more generally, complaints about often seemingly serious failings by local authorities. On occasions these concerns extended to criticisms of judicial behaviour. Most recently, the focus has been on failings – and especially judicial failings – in the private law system, in particular in cases involving, or alleged to involve, domestic abuse. The Final Report of the MoJ Expert Panel on Harm in the Family Courts published in June 2020 [Assessing Risk of Harm to Children and Parents in Private Law Children Cases: Final Report] is a shattering indictment of the system. The accompanying Ministerial statement was blunt: “This report lays bare many hard truths about long-standing failings in the family justice system, especially in protecting the survivors of abuse and their children from harm. It is not a comfortable read. The testimonies in the report[7] show that there are some fundamental issues that we must address in order to improve the experience and ensure the safety of all participants in the family justice system. I want to make it clear that this is not acceptable.” The judgments in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 reveal very serious judicial failings by experienced family Circuit Judges and show that there can be no room for complacency. But for the appeals, the likelihood is that these judicial failings would have gone completely unnoticed, shielded from publicity by a combination of the judges’ failure to publish their first instance judgments and the effect of section 12. The saddening reality, I believe, is that the family justice system stands today in lower public regard than at any time I can recall. It gives me no pleasure to say this, but it is, I believe, a time for plain speaking, however painful. We cannot afford to stand still. The stark reality is that the family justice system is going to lose more by persisting with its current way of doing things than – no matter the inevitable discomfort – it will by becoming more open. The irony is that it is section 12 which also shields good judicial work from being shown – for example by the journalist who is in court and wishes to explain, and illustrate, how very well a humane and empathetic judge has managed the hearing and supported the parties to give their best evidence. A problem of culture Underlying these difficulties, is a significant problem of judicial culture. The point can be put very simply: how many of us really accept either the Benthamite principle that the judge, while judging, should himself be judged (“Publicity is the very soul of justice … It keeps the judge himself while trying under trial”) or Brandeis J’s belief in the disinfectant power of exposure to forensic sunlight? A five-fold approach I suggest that what is needed – and as a matter of pressing necessity – is the following: (1) Repeal of section 12 and, if appropriate, its replacement with more focused provisions better suited to the modern world I need not rehearse the arguments: see, in addition to what I have already said, Munby, Bellamy, Reed, Doughty and Tickle, Should section 12 of the Administration of Justice Act 1960 be repealed? – A Proposal for the Law Commission’s 14th Programme of Law Reform, [2021] 80 Family Affairs 23, and, without the Introduction, [2021] Fam Law 466. (2) An open court pilot In the meantime, and a matter for early implementation, there needs to be an ‘open court’ pilot scheme in the family courts similar to the pilot that was so successful in the Court of Protection. I am aware of the proposals which the very experienced freelance journalist Louise Tickle has put forward. l strongly support them. I am conscious that forensic realities in the family courts often differ from those in the Court of Protection, but for present purposes the fundamental legal principles in play are precisely the same, as demonstrated by (a) the analysis of all the judges in Scott (otherwise Morgan) and another v Scott [1913] AC 417 and (b) the fact that section 12(1)(a), in relation to the family courts, mirrors precisely section 12(1)(b) in relation to the Court of Protection. I acknowledge, of course, that media reporting is not and never will be perfect. But, with all its inevitable imperfections, it works as an important check to power in other parts of our society; it should be allowed to do so in the family justice system. (3) Increased publication of judgments The following steps need to be taken: The consolidation of the existing Practice Guidance (the Practice Guidance I issued in January 2014 and the Practice Guidance: Family Court – Anonymisation Guidance issued in December 2018 by the President) as recommended by Doughty, Twaite and Magrath, coupled with a renewed and sustained drive to persuade judges to comply with it. The setting up of an Anonymisation Unit along the lines of the Australian model as recommended by Bellamy (Bellamy, 189-192, 248-249) – it is essential that this is under the direct control of the judiciary and not a task undertaken by either Her Majesty’s Courts and Tribunals Service or the Ministry of Justice. The introduction of up-to-date digital technology to generate, anonymise and, where necessary, redact transcripts of judgments (see Bellamy, 191, describing the automated anonymisation software used in the Federal Circuit Court of Australia), coupled with much-needed improvements in the contractual and administrative arrangements for the provision of transcripts. We need in this context, as well as more generally, to consider the implications of the new technologies which underpin the remote court working which has become such a familiar feature of the COVID pandemic.     Clarification of the guidance in relation to the naming of local authorities and other public bodies. The 2014 Practice Guidance was explicit that “public authorities … should be named in [a] judgment approved for publication, unless there are compelling reasons why they should not be named”. That reflected the case-law. Some judges seem to have taken the view that the later Practice Guidance has changed this, and therefore have not named the local authority: see, for an example, A Local Authority v B, H and I (Sibling as carer or adoption) [2019] EWFC B1, para 1. This is a seriously retrograde step. (4) Creation of a Media Liaison Committee         I strongly support Bellamy’s recommendation (Bellamy, 203-204, 250) that a Media Liaison Committee should be created. Given current realities, it is important that such a group should include not only members drawn from the traditional print and broadcasting media but also members drawn from the blogging and tweeting communities. (5) Rule changes Pending repeal of section 12, and whatever else is done, rule changes having effect for the purposes of section 12(4) would go a significant way to ameliorating the problems identified above. In this connection, I believe that we need to proceed incrementally. What I propose is merely a first step. The situation needs to be kept under review, with a view to moving further forward with all due speed in the light of experience. For this purpose, I propose new rules under three headings: Disclosure by parties to reporters. Access by reporters to documents.   Extending the ambit of what can be reported. I use the expression “reporter” to include both journalists and legal bloggers. Disclosure by parties to reporters FPR Rule 12.75(1) should be amended to provide explicitly that a party to proceedings is permitted to “communicate information relating to the proceedings” (which in this context would plainly include documents) to a reporter. On one view, such a rule would not require qualification, as Rule 12.73(2) would prohibit the reporter publishing anything so communicated without the prior approval of the court unless otherwise permitted by the new rules I propose below. On the other hand, and whatever the strict logic of such an approach, it might be thought appropriate to exclude certain identified types of document. I have in mind: Medical (including psychiatric and psychological) records and reports relating to anyone other than the person who is communicating with the journalist. Such documents will, of their nature, include highly sensitive and confidential information in relation to which a high degree of protection – protection from dissemination and publication – attaches as a matter of principle, human rights and substantive law. In particular, the State is under an obligation to ensure that there are in place “effective and adequate safeguards against abuse”: see the discussion in Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 49-51, Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79, [2017] 1 FLR 82, paras 27-31, and In re G (A Child) (Wider Family: Disclosure of Court File) [2018] EWHC 1301 (Fam), [2018] 4 WLR 120, para 32, of the Strasbourg decisions in Z v Finland (1998) 25 EHRR 371 and MS v Sweden (1999) 28 EHRR 313. Assessments – for example assessments as potential carers of parents, kinship carers, special guardians and adoptive parents – of anyone other than the person who is communicating with the reporter. Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure. Access by reporters to documents Rules 12.73 and 12.75 or PD 12G should be amended to entitle a reporter who attends or is or was entitled to attend any hearing to be supplied forthwith on request with certain documents. What those documents should be is a matter for consideration, and it may be prudent in the first instance to proceed incrementally, but I propose that initially the following should be provided if requested: Chronologies (including social work chronologies), case summaries, position statements and skeleton arguments. These are necessary to enable the reporter to understand and follow what is going on. Expert reports, in particular expert reports relating to harm alleged to have been suffered by a child. This would be in line with what Sir Nicholas Wall P said in Re X, Y and Z (Expert Witness) [2011] EWHC 1157 (Fam), [2011] 2 FLR 1437, para 94: “I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.” If disclosure of other documents is sought, application should be made, as at present, to the judge. This list should be expanded, in the light of experience, to include, for example, witness statements. In particular, early consideration must be given to permitting disclosure of witness statements filed on behalf of local and other public authorities. My present feeling is that, whatever future additions might be made to the list of documents a reporter is entitled to have supplied on request, it should remain necessary first to obtain the approval of the judge for a reporter to obtain: Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure. There is an issue as to whether documents should be provided in anonymised form. Although many might, instinctively, think that such documents should always be anonymised, there are powerful countervailing arguments: The burden of redaction imposed on those who are often already over-worked and poorly remunerated. The fact that, at the end of the day, the real and vital protection is that afforded by section 97 of the 1989 Act (as elaborated in the publication rules proposed below). I draw attention to CPR PD52c, para 33(2), which provides that in appeals to the Court of Appeal in family proceedings involving a child the copies of the skeleton arguments required to be supplied in accordance with para 33(1) “must be in anonymised form and must omit any detail that might, if reported, lead to the identification of the child.” That, however, applies to proceedings in open court, so may not be necessary where the proceedings are in private and therefore, subject to specific exceptions, protected by section 12 and section 97. Extending the ambit of what can be reported For this purpose, I propose for the moment new rules based in part on the provisions to be found in: the Judicial Proceedings (Regulation of Reports) Act 1926, as in force today; the Children and Young Persons Act 1933, as in force today; the Magistrates’ Courts Act 1980, as in force immediately before the introduction of the Family Court in 2014; and the Children Act 1989, as in force today. The first three of these are of particular interest because they regulate the publication of details of hearings conducted in public (the 1926 Act) or hearings in relation to which journalists were entitled by statute to be present (the 1933 Act dealing with the youth court and the 1980 Act dealing with the family proceedings court). I am not aware that these provisions of either the 1933 Act or the 1980 Act have ever given, or ever gave, rise to any concerns. It is also to be noted that, as Sir Stephen Brown P said in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, quoted in Rapisarda v Colladon [2014] EWFC 1406, [2015] 1 FLR 584, para 25, referring to section 1(1)(b) of the 1926 Act: “it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.” I set out the relevant provisions in the Appendix. As can be seen, there is significant common ground between them. For present purposes it is to be noted that they adopt three different techniques: Stating what you cannot publish: the 1933 Act, sections 49(1), (3A); and the 1989 Act, section 97(2). Stating what you can publish: the 1926 Act, section 1(1)(b). Stating both what you cannot publish and what you can publish: the 1980 Act, sections 71(1A), (2). In terms of what you cannot publish, compare: the 1933 Act, sections 49(1), (3A); the 1980 Act, section 71(2); and the 1989 Act, section 97(2). In terms of what you can publish, compare: the 1926 Act, section 1(1)(b); and the 1980 Act, section 71(1A). I propose – I emphasise along with other reforms – rule changes, in the first instance setting out, along the same lines as and building on these statutory precedents, both a list of what you cannot publish and a list of what you can publish. In due course, and I would hope sooner rather than later, it will be important to move to a simpler rule merely setting out what you cannot publish. In the first instance, such a rule might take the following form: A reporter may publish: the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given; the submissions on any point of law or practice arising in the course of the proceedings and the decision of the court on the submissions; the judgment or decision of the court, and any observations made by the court in giving it; information about the conduct, verbal and non-verbal, of the judge and the judge’s exercise of case management powers; information about the conduct in the course of the proceedings of the local and any other public authority; and comments, views and criticisms (including by the parties or third parties) on any of the above. Provided that the reporter must not publish in relation to any child concerned in the proceedings: the name or address of the child; the identity of any school or other educational establishment attended by the child; any picture (still or moving) as being, or including, a picture of the child (unless the child is disguised so as to prevent identification); or any material which is intended, or likely, to lead members of the public to identify the child as someone concerned in the proceedings or in any other proceedings before the High Court or the family court in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child. Provided also that the reporter must not publish (except as part of any report to the extent permitted above of any judgment decision or observations made by the court) any part of any medical (including psychiatric and psychological) record or report relating to anyone other than a person who consents to disclosure; or any assessment of anyone other than a person who consents to disclosure. The rule would require definitions of what for this purpose is meant by “reporter”, “publish”, and “child concerned in the proceedings”. Conclusions In summary: Something has got to be done. Inaction is not an option. Reform – significant reform, not just tinkering – is an urgent and imperative necessity, even if, initially, it should be incremental. In the first instance, the most immediately effective way of moving forward is by rule changes to take advantage of section 12(4). Appendix (statutory precedents) Judicial Proceedings (Regulation of Reports) Act 1926 1(1)     It shall not be lawful to print or publish, or cause or procure to be printed or published –    (b)       in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:— (i)         the names, addresses and occupations of the parties and witnesses; (ii)        a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii)       submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv)       the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment … Children and Young Persons Act 1933 47(2)   … No person shall be present at any sitting of a youth court except— (a)        members and officers of the court; (b)       parties to the case before the court, their legal representatives, and witnesses and other persons directly concerned in that case; (c)        bonâ fide representatives of newspapers or news agencies; (d)       such other persons as the court may specially authorise to be present: 49(1)   No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings. (2)        The proceedings to which this section applies are— (a)        proceedings in a youth court; (b)       proceedings on appeal from a youth court (including proceedings by way of case stated); … (3)        In this section “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed) … (3A)     The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular— (a)        his name, (b)       his address, (c)        the identity of any school or other educational establishment attended by him, (d)       the identity of any place of work, and (e)        any still or moving picture of him. (4)        For the purposes of this section a child or young person is “concerned” in any proceedings if he is— (a)        a person against or in respect of whom the proceedings are taken, or (b)       a person called, or proposed to be called, to give evidence in the proceedings. (11)     In this section— … “picture” includes a likeness however produced; “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990; 65(1)   In this Act “family proceedings ” means proceedings under any of the following enactments, that is to say— … Magistrates’ Courts Act 1980 (n)       the Children Act 1989 … 69(2)   In the case of domestic proceedings in a magistrates’ court other than proceedings under the Adoption Act 1976, no person shall be present during the hearing and determination by the court of the proceedings except— (a)        officers of the court; (b)       parties to the case before the court, their solicitors and counsel, witnesses and other persons directly concerned in the case; (c)        representatives of newspapers or news agencies; (d)       any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance. (3)        In relation to any domestic proceedings under the Adoption Act 1976, subsection (2) above shall apply with the omission of paragraphs (c) and (d). (4)        When hearing domestic proceedings, a magistrates’ court may, if it thinks it necessary in the interest of the administration of justice or of public decency, direct that any persons, not being officers of the court or parties to the case, the parties’ solicitors or counsel, or other persons directly concerned in the case, be excluded during the taking of any indecent evidence. 71(1)   In the case of family proceedings in a magistrates’ court (other than proceedings under the Adoption Act 1976) it shall not be lawful for a person to whom this subsection applies— to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or [broadcasting] any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below. (1A)     The particulars referred to in subsection (1) above are— (a)        the names, addresses and occupations of the parties and witnesses; (b)       the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given; (c)        submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions; (d)       the decision of the court, and any observations made by the court in giving it. (1B)     [Those to whom subsection (1) applies] (2)        In the case of family proceedings in a magistrates’ court under the Adoption Act 1976, subsection (1A) above shall apply with the omission of paragraphs (a) and (b) and the reference in that subsection to the particulars of the proceedings shall, in relation to any child concerned in the proceedings, include— (a)        the name, address or school of the child, (b)       any picture as being, or including, a picture of the child. and (c)        any other particulars calculated to lead to the identification of the child. Children Act 1989 97(2)   No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify— (a)        any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or (b)       an address or school as being that of a child involved in any such proceedings. (5)        For the purposes of this section— “publish” includes— (a)        include in a programme service (within the meaning of the Broadcasting Act 1990); (b)       cause to be published; and “material” includes any picture or representation. [1]                This is not to depreciate two excellent books whose study is fundamental to the issues: Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, Bloomsbury Professional, 2018, and Bellamy, The ‘Secret’ Family Court: Fact or Fiction?, Bath Publishing, 2020. Both, of course, are much more up to date, but, as their titles indicate, their purpose is in each case rather different. Also valuable, especially for its common law perspective, is Burrows, Open Justice and Privacy in Family Proceedings, The Law Society, 2020. [2]                In July 2006, Confidence and confidentiality: Improving transparency and privacy in family courts, CP11/06; in March 2007, Confidence and confidentiality: Improving transparency and privacy in family courts – Response to Consultation, CP(R)11/06; in June 2007, Confidence& confidentiality: Openness in family courts – a new approach, CP10/07; and, in December 2008, Family Justice in View, CP(R)10/07 (in relation to which the Lord Chancellor made an oral statement in the House of Commons on 16 December 2008).  [3]                See, for example, paras 112, 121, 129 and 130 in the context

On 14th May 2021, BBC News and two national newspapers ran a story about a Court of Protection hearing concerning  a 21-year-old woman with agoraphobia who is pregnant and wants to give birth at home.  There is no published judgment available yet so these media reports are the only publicly...

A brief summary of the essential family law news and cases from the last week:  NEWS Judges dismiss social services application over rights...

The courts must consider the welfare of children when sentencing mothers, MPs have urged. The Joint Committee on Human Rights has drafted new clauses to the Police, Crime, Sentencing and Courts Bill in order to protect the right to family life of children when their mother is sentenced. ‘When a mother is sentenced to prison, children themselves receive their own sentence to serve,’ the report argues and sets out amendments to the Bill to give greater visibility to children when their mother is sentenced. MPs and peers point out that it has raised the issue now over two parliaments. ‘Children are hidden from sight because there is no central or consistent way of collecting information on children whose mother is sentenced to prison,’ the report says. ‘This has serious implications for the support available to the separated mother and her children, and impedes the design of services that are vital to support these children and go some way to ensuring that their right to family life is not breached.’ Children’s voices are ‘too often ignored or not heard’ when their mother is sentenced, despite case law and guidelines that should ensure that their best interests and welfare are considered. The committee points out that that the issue engages with the right to family life, protected under Article 8 of the European Convention of Human Rights as a well as the UN Convention on the Rights of the Child. Proposed amendments include requiring a judge to have a copy of a pre-sentence report when considering the impact of a custodial sentence on the dependent child. In 2019, the committee called for change, including in prioritising data collection on the number of children whose mothers are in prison and increasing the visibility of children in the sentencing process. MPs and peers now argue that the new Police, Crime, Sentencing and Courts Bill is seen as an ‘opportunity’ for these areas to be addressed. Despite Government promises in 2019 to ‘establish more accurate metrics to capture centrally the number of pregnant women and new mothers in custody’, the Committee notes their continued concern about the lack of data. ‘The Government’s insouciant approach continues to keep a group of children invisible,’ the report describes. The Committee proposes an amendment requiring the Secretary of State to collect and publish data on the number of prisoners who are primary carers of a child and the number of children who have a primary carer in custody. The report also describes how the Committee ‘cannot see how the welfare… of children are being sufficiently considered’ if it is not prioritised in the sentencing of a parent. The Committee argues that judges can only ‘fulfil their obligation to weigh the Article 8 rights of a child when sentencing if they know that the child exists’ and recommend that during sentencing, enquiries should be made to establish whether the offender is the primary carer of a child. Whilst there have been some minor changes to sentencing guidance, there are ‘strong risks’ that this continues to be ‘too little to be effective’. ‘A young child’s separation from its mother when she’s sent to prison risks lifelong damage to that crucial relationship,’ commented Harriet Harman MP, chair of the Committee. ‘Yet, too often, the child is invisible in the court process. This must change. Most mothers who are in prison have committed non-violent crimes. And it’s appalling that there’s so little concern for children that the Government doesn’t even know how many children are suffering separation from their mother by imprisonment. There will be much backing from MPs from all parties for these law changes proposed by the Joint Committee on Human Rights.’

Amendments to Practice Direction 30A, 36U and 41B come into force on 3, 24 and 31 May 2021....

New report from Resolution, supported by other representative bodies, shows impact of lockdown on working practices and wellbeing. Findings ...

Sentencing council to revise child sexual offences sentencing guidelines The Sentencing Council has launched a consultation on revised sentencing guidelines for child sexual offences where no child exists or is harmed.  The revised guidelines will clarify how courts in England and Wales should sentence offenders convicted of these offences. The Council is seeking views on proposed changes to the guidelines, which will see judges and magistrates base the sentence they impose on the intended sexual harm to a child, whether or not a child victim existed or sexual activity took place, for example in cases where the offender was arrested following a police or concerned citizens operation. Current sexual offences guidelines, published in 2013, had been interpreted in some cases to mean that harm should be considered low in these cases, or had placed the absence of actual harm to a child as a mitigating factor in cases where sexual activity was incited but did not actually occur. In addition, the Council is publishing a new draft guideline for the offence of sexual communication with a child (s15A of the Sexual Offences Act).  Offenders face a maximum penalty of two years in prison for sharing images, causing psychological harm, abuse of trust or the use of threats. The consultation is open until 13 August 2021.

Following the passage of the Female Law Practitioners Act 1896, Ethel Benjamin became the first woman to be admitted as a barrister and solicitor of the Supreme Court of New Zealand.

This week’s roundup includes major new legislation, miscarriages of justice and a dickens of an exhibition. Plus recent case law and commentary.Described by the government as “landmark” legislation…...

A fictionalised account of hidden battles during an ordinary court day.By Rehna Azim...