By David Hodson
With plans to live stream family cases in the appeal court, David Hodson argues for first instance final hearings to be streamed
Family cases in the Court of Appeal are to be live streamed from Summer 2020 as part of the continuing policy of openness and transparency in family justice in England and Wales. Care proceedings will not be broadcast.
So what are the details of this scheme and how might it be received by the public?
In March, the Ministry of Justice (MoJ) announced that from a date in the summer yet to be set, there will be live streaming of family appeals in the Court of Appeal. A statutory instrument was laid in parliament on 12 March 2020. The announcement was accompanied by a flourish of grand statements.
The Lord Chancellor Robert Buckland said: “Everyday family court judges do outstanding work making difficult decisions in highly emotive cases, often involving children. By working with the judiciary on innovative pilots such as this we are making the system as transparent as possible, with the right safeguards in place.”
And president of the Family Division Sir Andrew McFarlane commented: “Being open about what happens in court is critical for public confidence and understanding of the work which the judiciary undertakes. For centuries our courtrooms have been open to the public. Livestreaming brings the public gallery into the 21st century and we are delighted that we can make the difficult and important work of the Court of Appeal Civil Division open to the broadest possible audience.”
The broadcast hearings will be available on YouTube, Facebook and Twitter as well as the judicial website (judiciary.uk). They will not be televised live although footage can be broadcast. For anyone who wants to see them, then of course this makes it available – although it is difficult to see why they cannot be televised for those who want this medium.
There will be a 90-second delay to avoid broadcasting public interventions and protests and other unexpected developments.
The cameras will show the judges and the judicial bench and the backs of the lawyers, which itself will present a sartorial challenge to some lawyers. The parties themselves will not be seen.
Broadcasting will be a matter of discretion for individual judges. The parties will be informed in advance and will have the opportunity to oppose broadcasting.
Within family justice, we really must have judicial consistency in practice on what cases are open. Not only is there a huge difference at High Court level, as below, but there has sometimes been an anxiety that the wealthier party – sometimes the parties together – have been able to raise objections to public reporting, which may not have been available to less wealthy parties able to fund these expensive applications.
Having said this, English family justice recently had its most substantial set of Children Act fact-finding judgments fully reported in respect of the Sheikh of Dubai. That came after he endeavoured to object to the judgments being published, failing at both High Court and Court of Appeal level with the Supreme Court refusing to hear a further appeal.
It is at High Court level where the biggest difference arises. The strongest proponent of openness is probably Mr Justice Holman, the most senior High Court judge by age, who invariably sits in open court – open to the public – on financial hearings. Indeed, even on the day the MoJ announcement was made, he apparently said (coincidentally or otherwise) that the secrecy surrounding family courts was an abomination and that he would not prevent the public attending financial hearings.
He said most family court work is done in secret and he couldn’t have secret courts. He said that open court hearings and press freedom underpinned everyone’s democratic freedom.
However, there are other judges who have taken the opposite position in practice and have imposed reporting restrictions in financial provision cases.
This difference on the High Court bench probably reflects differences across the family law professions. Some would be supportive of far more openness and transparency so long as there was a certainty of anonymity. In contrast, there are also lawyers, including many among those undertaking primarily children cases, keen to protect confidentiality.
Perhaps these differences are the reason for the president of the Family Division setting up the so-called Transparency Review into current and proposed arrangements to regulate access by journalists and the public to, and reporting of, information concerning proceedings in the family courts. The deadline for the call of evidence and submissions was extended in early April to 11 May 2020 and the outcome will be important.
Other jurisdictions like Australia are far more open and transparent in respect of family court proceedings but are strong about anonymity of the case itself. Many English family lawyers have a real anxiety about the difficulties posed by breaches of anonymity on social media, which is far harder to police and injunct than the print or broadcast media.
Of course, sometimes developments have to be introduced progressively. It is a pity that these plans could not at least be extended to appeal hearings in the High Court which would cover appeals from first instance decisions. However, most of the work of the family courts is first instance. Many lawyers, perhaps not yet a majority, hope live streaming can occur soon for first instance hearings, but there should be a further debate.
The problem in presenting appeal hearings only is that they are a different creature to first instance hearings. Appeal hearings have no oral examination and cross-examination. The arguments by counsel at first instance deal with the whole range of issues to help a judge make a decision and, therefore, give a far better understanding of how the family courts carry out their decision-making – which is where the demands for openness and transparency lie. In contrast appeal cases are invariably limited naturally to the issue or ground of appeal.
To get a proper understanding of how family cases are dealt with and how the family courts operate first instance hearings should be streamed.
Lessons Nevertheless, what will the binge viewer of the judicial website learn from watching these family appeal court cases?
First, they represent a narrow band of the entire cases going through the family courts. The financial provision appeal cases tend to concern significantly large assets, sometimes levels of wealth beyond ordinary comprehension. It is the constant complaint of family lawyers that cases with so-called middle bands of wealth never reach the appeal courts; and rarely is guidance given in dealing with the cases which are before the family courts at district judge level every day.
In children matters, they are often highly complex facts in difficult social or relationship conflict situations – again, fortunately not representative of the many parenting disputes dealt with at first instance level. So the binge viewer will not get a fair picture of the work of the family court.
Second, many appeal cases tend to involve an international element. This has been increasing in the family courts as the years have passed and is representative of the fact that England and Wales is one of the most international jurisdictions in the world. Nevertheless, in this further respect the appeal cases are not representative of the work across the country
Third, the binge viewer will not get a proper appreciation of the way in which family cases are conducted, even at contentious final hearings. Raised on Hollywood or British TV dramas, the viewer might expect bombastic and aggressive demonstrative arguments, dramatic flourishes and exciting denouements (along with gavels).
While first instance final hearings certainly require a contentious approach, with sometimes necessarily a polarisation of positions and an aggressive approach, many viewers would be surprised and, hopefully, impressed by the careful, respectful, considerate and conciliatory style adopted by family court advocates.
Over several decades, the family court has moved itself distinctly away from the other streams of civil justice. Now, there’s a far greater holistic awareness that what goes on in the courtroom is not an isolated one-off experience but affects co-parenting and personal respect and integrity, and future family communications. It is a matter often commented upon by clients used to elements of civil litigation. It is a feature of which the English family justice system should be proud.
Fourth, the viewer watching the appeal cases will have no idea about the high volume of work, the multitude of cases and variety of cases dealt with every day by first instance family court judges, including at district judge level. Lucy Reed of The Transparency Project recently spent a day with a district judge at the family court in Oxford and, even as an experienced family barrister, wrote of how impressed she was at the speed and turnover of the work.
As a deputy district judge sitting in the financial remedies court at the Central Family Court, I know that in any one day there may be two or three complex family dispute resolution hearings (FDRs), a similar number of first appointments and a couple of extra urgent applications. Hopefully one day, live streaming of first instance hearings will also become openly available for the public to
see and appreciate.
Fifth, the viewer will need to go on a crash course to understand some of the complex issues being dealt with. From the financial standpoint, there is the amortisation of capital with a level of financial sophistication that would baffle some financial advisers. There are guidelines on how to use a springboard. Trumping sharing by needs is fundamental but only after seeking the acquest. Sorting out pensions involves a glossary all of its own; and then there is the apparent judicial obsession within judgment with big cats! Lawyers who try to keep fully abreast of the latest reported decisions send the public the best of luck.
Finally, a fundamental postscript as this article goes to press. Writing this article preceded the announcement of the lockdown by the prime minister on 23 March. Everything changed with the family courts and it will be a long time before they return to any previous way of working.
But innovative action by enterprising and digitally aware judges, barristers and solicitors has enabled the family justice system to continue in many respects, including some public access via the same technology used for the hearings. Curiously, it might be easier to live stream from a digital video platform hosting an appeal court hearing than from a physical courtroom, although dependent upon what sort of software is imposed upon the family law profession by HM Courts and Tribunals.
What has emerged, however, during the first six weeks of the lockdown is how badly equipped with digital technology the family courts are around the country. While some practitioners and judges have quickly got to grips with the digital demands of video hearings, many court offices and some judges have clearly been unable to.
While openness and transparency in every family justice system is important, the obvious shortcomings exposed in technology usage in the family courts (notwithstanding the eye watering funds allegedly already spent) has caused many family lawyers to say funds and energies should be better committed to a digitally functioning court system, particularly at first instance where the digital needs have been most exposed.
On coming out of lockdown, the family justice system in England and Wales must now work hard to build on what has been the beneficial experiences of the lockdown period to produce a far more modern digital system. If that means no or delayed live streaming of a few appeal cases, then this is worthwhile and justified.
David Hodson OBE MICArb is a partner, mediator and arbitrator at The International Family Law Group iflg.uk.com