Transparency: Closing the stable door after the horse has bolted

Family Law|July 27th 2015

Last week we witnessed another great failure of the President’s transparency guidance on publication of judgments.

For those who don’t know what the guidance is, it was published by the President of the Family Division in January 2014 with the intention that more family court judgments should be published, in order to combat the charge that the court operates a system of secret and unaccountable justice (the guidance can be read here). I can confirm from personal knowledge that many more judgments have, indeed, since been published.

The guidance also aimed to improve public understanding of the way in which the family court operates, by improving the reporting of family cases in the media. All very laudable, but sadly, as I’ve said here previously, the idea that the media will report more accurately is, I’m afraid, a delusion.

The latest confirmation of this occurred last week when a story broke across the media to the effect that a court had refused to allow a child to live with her grandparents, as they were too old to look after her. The story had widespread coverage in various national newspapers, on the BBC and no doubt elsewhere. On television news we saw pictures of the couple, looking rightly distressed. It was clearly another example of the unfeeling family courts unnecessarily removing a child from a loving family.

The problem with the story, however, is that like so many before it, it completely failed to give a true picture of the reasons why the court made the decision that it did. I won’t go into those reasons here, but suffice to say that, whilst the district judge who heard the case did mention the ages of the grandparents, that was not a factor in his decision.

The case was decided on 17 June last. As far as I am aware, the story first broke in the media last Tuesday, 21 July, in a local newspaper. It was then picked up by the national media, appearing, for example, on the BBC on 22 July. On the following day the Courts and Tribunals Judiciary responded by publishing the report of the judgment on its website.

All too late, of course. The story as originally told was already ingrained on the public consciousness. Apart from those involved in the family justice system no one, certainly not anyone in the media, was interested in what the judgment had to say. (OK, this is an over-simplification – some of the media reporting was a little more accurate, but my point is that the ‘headline’ story that the grandparents were refused because they were too old was clearly the one that the public would remember.)

After the judgment was published I became involved in a discussion on Twitter with several supporters of the idea of transparency. Their argument was that it was never too late to try to have the truth be told. In an ideal world I would agree, but the media would rarely publish any sort of correction, and even if they did, it would be tucked away in some corner of an inner page, not given anything like the prominence of the original story.

The simple fact is that publishing a judgment after the media has got its hands on a story (or even pointing the media to an already-existing judgment after an incorrect story has been published) is futile, and tantamount to closing the stable door after the horse has bolted.

It was also suggested in the course of that Twitter discussion that the problem of inaccurate reporting could be solved by having the media regulated. Now, I’m against regulation of the media in principle, but anyway let’s have a quick look at the idea. Firstly, how would it work? I can’t see the media being prepared to have their stories scrutinised by a regulator before they are published, so presumably it would work on the basis that the regulator punishes them for inaccurate reporting. In other words, the horse will have already bolted. Secondly, who would do the regulating, and how would it be decided what was reasonably accurate and what was not? Lastly, and in any event, I suspect that having court reporting regulated would probably only make the public even more suspicious of what the courts get up to. Regulation would therefore be counter-productive.

Whatever we do, the media will report what it wants to report, the way it wants to report it. That is a simple fact of life, and there is no point in our wasting our time trying to alter it. And as for what to do after an inaccurate report has been published, by all means try to get the truth out there, but don’t expect to be able to repair the damage that has already been done.

If you want to know the real reasons why the court did not place the child with her grandparents, you can read the full judgment in the case here.

Photo by via Flickr

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  1. The Devil's Advocate says:

    “Many more judgements have been published” ….Really what %?

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