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Update: Family Division’s Transparency Review

|Family Court|News

Updated: October 2021

The final publication of the Family Division’s Transparency Review is now expected to be in October 2021.

In May 2019, the President of the Family Division, Sir Andrew McFarlane, announced he would undertake a review of the current arrangements for media/public access and reporting in the Family Courts (known as the Transparency Review).

Courts have continued to operate despite the challenges of the pandemic, but there have been unavoidable delays to the timetable Sir Andrew had envisaged when he launched the Review.

A panel helping the President has recently been extended to include a senior family division judge. The panel’s aim is to gather full and candid information for the Review.

The panel members are:

  • Mrs Justice Nathalie Lieven (family division High Court judge)
  • Dr Eia Asen (consultant child and adolescent psychiatrist)
  • Anthony Douglas CBE (former chief executive of CAFCASS)
  • Clare Dyer (former Legal Editor of The Guardian)
  • Nicola Shaw CBE (Executive Director of National Grid)

The President is grateful to all those who contributed to the Transparency Review call for evidence. In all, more than 100 submissions were received from individuals and agencies drawn from across the world of family justice. The President and panel have now been able to meet remotely to review all submissions and consider who to hear oral evidence from.

Three oral evidence sessions are being held.

Session 1

The first was held on Tuesday 2 February 2021. It included four participants, and was conducted remotely and according to witness preference (including reasonable adjustments).

The panel heard from:

Session 2

On 8 March 2021, the panel members held the second of three oral evidence sessions. It included four participants and was conducted remotely and according to witness preference (including reasonable adjustments). The panel heard from:

Louise Tickle: Award-winning journalist who specialises in reporting on the family justice system. She has also written extensively on domestic abuse. Her reporting on family courts was shortlisted for The Orwell Prize for Journalism in 2016, and in the same year she won the Bar Council’s Legal Reporting Award for a Guardian investigation focusing on the effects of legal aid cuts to family law cases.
The participant agreed for this evidence session (external link, opens in a new tab) to be recorded for review of the panel and be available publicly.

The Media News Group. Representatives were as follows:

  • John Battle of the Media Lawyers Association
    Employed barrister who has worked in major news organisations for 30 years. He is the Head of Legal and Compliance at ITN and chair of the Media Lawyers Association which lobbies on media law issues and represents in-house lawyers working in the news media.
  • Sian Harrison of the Press Association
    Law Service Editor of the Press Association and recently appointed co-author of McNae’s Essential Law for Journalists. She has been a journalist since 2006 and has worked as a court reporter at the Royal Courts of Justice since May 2010
  • Sayra Tekin of the News Media Association
    An experienced litigator formerly at the BBC, Sayra is a multi-specialist solicitor-advocate who has also been proactive at lobbying courts and regulators on issues which threaten press freedom.
    The participants agreed for this evidence session (external link, opens in a new tab) to be recorded for review of the panel and be available publicly.

Lucy Reed of The Transparency Project: A barrister specialising in children work and Chair of The Transparency Project (an educational charity whose aims are to ‘make family justice clearer’). Lucy writes and speaks extensively about family law and transparency and is a well-known legal blogger.
The participant agreed for this evidence session (external link, opens in a new tab) to be recorded for review of the panel and be available publicly.

Dr Julia Brophy and Dr Marisol Smith: Julia Brophy is an independent senior researcher in family justice issues.  She has been a principal investigator on Children Act research since its inception. She has directed major studies with awards from The Department of Health, The Ministry of Justice, the Family Justice Council, The Office of the Children’s Commissioner (England), CISWA-UK, the ALC and The Nuffield Foundation. Dr Marisol Smith is a researcher with extensive experience in civil justice, advice and legal services. Her research work has focussed on access to justice and the response of individuals to legal issues and the design of legal services.

Evidence

1          Submission to the Justice Select Committee (external link, opens in a new tab) – Inquiry into the working of the Family Court; in particular to paragraphs 4.14 impact on children’s evidence; 4.32 – evidence of the RCPCH (Sir Terence Stephenson – President at that time); 4.44 children’s views.

2          Report of the Justice Committee (external link, opens in a new tab) – Operation of the Family Courts: Media and public access to the family court: panel were referred to paragraphs: 277 – issues for clinicians working with children, 279 following, 280, 285 – 287 (RCPCH, BAAF, Women’s Aid, Children’s Commissioner).  Conclusions at 290 -293.

3       Comment: Dr Danya Glaser MB BS, DCH, FRCPsych, Hon FRCPCH, Visiting Professor at UCL and honorary consultant child & adolescent psychiatrist at Great Ormond Street). See – October [2009] Fam Law: Comment – Media Access to Expert Reports: A Child and Adolescent Mental Health Perspective (external link, opens in a new tab).

4          Privacy and Safeguarding: Evaluation of Practice Guidance (external link, opens in a new tab) (2018) – Children Judgments. Brophy J and Smith M with Jhutti-Johal J (May 2021).
Funded by the Nuffield Foundation, published by CoramBAAF.

Participants agreed for this evidence session to be recorded only for review of the panel and administrative purposes.

Session 3

On 17 May 2021 the panel members held their third and final oral evidence session. It included 9 participants and was conducted remotely and according to witness preference (including reasonable adjustments). The panel heard from:

  • Australian Judiciary – The Honourable Chief Justice William Alstergren (Chief Justice of the Family Court of Australia), the Honourable Deputy Chief Justice McClelland and Judge McGuire of Federal Circuit Court of Australia.
    Participants agreed for this evidence session (external link, opens in a new tab) to be recorded for review of the panel and be available publicly.
  • Representatives from DfE, Cafcass and the ADCS – Isabelle Trowler (DfE) – A senior civil servant, having previously worked for many years in local services for children and families. She is also a Trustee of the What Work’s Centre for Children’s Social Care and a member of the National Panel for Child Safeguarding Practice Reviews.
    Jacky Tiotto (Cafcass) – Chief Executive of Cafcass since September 2019. Previously employed as the Statutory Director for Children’s Services at the London Borough of Bexley from 2015. Jacky has worked for Ofsted leading the development and implementation of inspection frameworks for children’s services, she led the Government’s National Safeguarding Delivery Unit and served as a professional adviser to a number of government and independent reviews, including those led by Professor Eileen Munro (2011) and Lord Laming (2009).
    Helen Lincoln (ADCS)A qualified Social Worker at Essex County Council and currently the Executive Director Children Families & Education. She chaired and authored much of the pan London Child Protection Procedures.  She co-authored “Ten pitfalls in assessment and how to avoid them” and co-author of an article “Practice needs to be braver, Child Protection and the paradigm of risk”. Helen is an active member of the ADCS, being on the Council of Reference, and the ADCS representative on UASC and Family Justice Reform Implementation groups.
    Participants agreed for this evidence session to be recorded only for review of the panel and administrative purposes.
  • Representatives from the Family Justice Young People’s Board (FJYPB) – Two members gave evidence. The Family Justice Young People’s Board (FJYPB) is a group of over 70 children and young people aged between 8 and 25 years old who live across England. All members have either had direct experience of the family justice system or have an interest in children’s rights and the family courts. The FJYPB have been invested in this review since its initial call for evidence in 2014. More information on the FJYPB (external link, opens in a new tab) is online.
    Evidence used at session:
    Participants agreed for this evidence session to be recorded only for review of the panel and administrative purposes.
  • Sir James Munby – Appointed a Family judge of the High Court in 2000. He was appointed a Lord Justice of Appeal in 2009. From 2009-2012 he was Chairman of the Law Commission. From 2013 until retirement in 2018 he was President of the Family Division. He is Chair of the Board of the Nuffield Family Justice Observatory. From 1988 until 2000 he 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, he gave many reported judgments on the same topic. 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. This reflects more than 30 years immersion in, thinking about and analysis of transparency from a variety of perspectives.
    Evidence used at session
    The participant agreed for this evidence session to be recorded for review of the panel and be available publicly. Due to details of some court cases being discussed as part of the evidence, this session is only for review of the panel and administrative purposes.

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