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Last night was the Annual Family Justice Council Debate - and this year the topic was covert recording. The motion was 'nothing to hide - what's wrong with covert recording?' Hannah Markham QC and I were allocated to the 'pro' side of the debate, and HHJ Lazarus and Debbie Singleton to the anti. In reality though we all shared similar views about the reasons behind covert recording (mistrust) and the need to both consider it before dismissing it, the need to manage it carefully to ensure it did not distract the court rather than help it, and the particular issues around recording children.

What emerged was a broad consensus that one way forward would be some form of routine recording of meetings with professionals - not as the primary record, but as a safeguard to check back to if there were a dispute about what was said or done or about the accuracy of a minute of a meeting or a report based upon an interview. Of course this hit the familiar brick wall of resources.

The debate was an opportunity for the FJC to tell the audience about the proposed guidance on this issue - that is a work in progress and no doubt this evening's contributions will feed into it (I am going to be on the working group looking at this in due course in my capacity as chair of The Transparency Project). But my initial thoughts on suggestions that the guidance might somehow deal with these issues of local authorities or cafcass routinely making recordings to obviate the need for parents to do so are that a) this is not really a matter in the first instance for the FJC which is focusing on court proceedings not social work, but is a matter for social work / CAFCASS leadership and that b) the restrictions on data controllers and the state in terms of surveillance probably mean that primary legislation would be needed to make any widespread scheme workable. Getting from the idea in principle to some rolled out scheme would, it seems to me, be a mammoth undertaking - and not one over which the FJC has jurisdiction.

I want to thank all the many people who replied to my call for feedback on why people record and what professionals think about it - I used many of your contributions (anonymously) in my slideshow - which is here

covert recording - YouTube

I think it encapsulates the breadth of reasons why people are driven to record, and the variety of responses that they receive. I think it demonstrates how the responses to parents wishing to record can affect the trajectory of a case.

There were some valuable contributions from the floor at the debate, although it was a shame there was not sufficient time to allow for interaction between the panel and audience. One point that was raised and on which I responded was one about the integrity of transcripts of hearings and judgments. That is something I intend to return to as it is a topic that has recently been raised by Louise Tickle, causing some degree of consternation, and where I think the debate would be enhanced by an actual understanding of the processes and law which may not be obvious or instinctively sensible to the outsider. I have a long blog post in my head, and am simply waiting for enough breathing space to get it out and onto a screen....

A couple of disembodied thoughts that I am left with that bubbled up during the debate but that I didn't have time to get off my chest yesterday :

  • as lawyers we advise our clients to keep a record of events - to make notes, diaries etc. People don't *do* paper diaries any more (well, not unless they are my 8 year old son). People document every aspect of their lives using their phones. We've all dealt with cases where it is said a diary is self serving, or edited or not really contemporaneous but manufactured later. And cases where the diary is compelling. In many respects audio and video recording is no different. We are I think just less confident about how we establish veracity in a digital document. But isn't a verifiable digital record far more objective than a diary written by one participant?
  • the increase in litigants in person as a result in the cuts to legal aid is relevant to this issue in a private law context. When the majority of litigants were represented, recordings they had made would be produced in conference with solicitor or counsel - and either the client would be advised that they were not relevant and the issue would not arise - or they would be produced and an application would be made for them to be relied upon as relevant material in good time. In some cases careful thought would need to be given to the guidance on disclosure of unhelpful material in children proceedings - whether before or after viewing. Many of us have dealt with cases where the client has enthusiastically persuaded us to listen to their devastating recording that is going to win the case, only to watch the blood drain from our faces as we realise we are going to have to have 'that talk' with our client about our duty to disclose the recording that will damage their case. That filtering of evidence is not happening now and I suspect recordings made of children or ex partners at handover are being produced increasingly late and chaotically - and only once a litigant has, in the absence of advice, built up a stash of what they genuinely believe to be helpful material.

Anyway, those are my slightly random thoughts about covert recording... I'll post a link to the transcript and podcast when it is made available by the FJC.

Feature Pic courtesy of Jordans Family Law

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This afternoon, in an interstitial moment of madness brought on by having become unaccustomed to having an actual weekend involving anything apart from paperwork, I have been engaging in impromptu and not altogether successful attempts to make Christmas decorations out of pink tape. I do not think I will be giving up the day job to promote my new line of products... For those wondering however, I can confirm that no, you can't make a pom pom out of pink tape... and although I have lashed bamboo into something approximating a star shape for a fetching naive style festive feature piece, I don't think you would want me on your desert island raft making team.

I'm approaching the end of a run of time consuming cases that have lingered pending and part heard over much of this year... they have come up and down in sequence like hills that you pass on the way down the M5 with scarcely a glimpse of sky in between. Now the draft judgments are dropping silently into my inbox one by one, and I feel that I am approaching the levels...I'm stopping for coffee and refuelling before the next mountain range. The sign reads : Moto Christmas 19 days

Apart from the coming together of several imminent endings in a number of cases that have become as familiar as old friends, this week has been unheimlich in other ways... just as one trial went short The Times published a leader about a woman survivor of the Rotherham grooming gangs and the invitation by the council to the father to have contact (Sammy Woodhouse). I saw Norfolk's piece on the train to Swansea, and by the time I arrived I'd written much of the blog post I published later that day. Much time and energy since then has been devoted to trying to unpick what the facts of the story really were, what campaigners were actually calling for by way of reform and explaining to numerous tv and radio producers what the law actually says. I've had Sky TV in my kitchen (all my wisdom was left on the cutting room floor and one disembodied line about adoption was left in making me sound slightly out there), and I've been green screened into the Victoria Derbyshire Show. (44 mins in) This afternoon, before the decoration making frenzy I was on Talk Radio with John Nicholson. I *think* I talked some sense but will never know because I don't think you can replay it. This issue has totally taken over life this week - I've written three lengthy blog posts about the story and the issues it raises - because although the original story was flawed, the debate it has given oxygen to IS so important to many people (see here and here in addition to the one linked above). I may not agree that the answer to these women's concerns is a reform to the law - I think it is more likely to be about better awareness of court rules and options and better understanding of the impacts of abuse and control when applying the law - but what has driven me to contribute so many hours this week to this debate is the sense that the debate can't be useful to anyone if people are calling for reform of laws they don't understand in the first place. I'm comfortable with the idea that people want reform of the law - and that that may be justified (I can't see it at the moment, but maybe I will once debate becomes more specific and more rooted in the actual law and practice) - but legislation borne of headlines and emotions rather than calm, meticulous consideration of different scenarios, will very likely cause problems at least as great as those the campaigners understandably wish to solve. If there is to be reform let it be focused and clear and thought through. It's upsetting to be called a rape apologist, a stooge for social services or cold and unfeeling for trying to inject a bit of calm into a debate being driven by (understandable) emotions - but such is the lot of a lawyer I suppose. Objectivity and analytical ability is our stock in trade and it is often undervalued. These things will be needed if any campaign group wants to move beyond outrage and into actually getting something done. Those who think lawyers lack passion are mistaken. Our passion is the fuel in the engine, even though you do not see it always on the outside.

Tomorrow I head to Leeds to take part in the Family Justice Council debate on covert recording. That should be interesting (I won't say fun). I am hoping that someone in the audience will live tweet it as I don't think the FJC 'do' live tweeting...

I am also hoping whilst I'm there to do a spot of legal blogging. Much though depends on how early I can drag myself from my pit and get my backside to the train station...

I might write a blog post on my 3 ½ hour train journey...on the other hand I might just snooze.....is that ok?

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The Family Justice Council run a debate every December and it is usually excellent. Notwithstanding the fact that this year the line up will involve yours truly it should still be an interesting event to attend - the other panellists are the excellent Hannah Markham QC, Her Honour Judge Lazarus and Debbie Singleton - and the topic is the ever controversial covert recording.

The question for debate is :

‘Nothing to hide – what’s wrong with covert recordings?’

I'm told that Hannah and I have been allocated to team 'pro', but as ever with these things the debate topic sets up a false dichotomy. Things are always more complicated than the forced choice of yay or nay allows...

FJC events are by ticket only and the tickets are limited - you must apply by 21 November to have a chance of getting in.

Details here :

Family Justice Council – 12th Annual Debate: Covert recordings in family law

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I know I know. It's been quiet around here lately.

Been busy.

Here is one thing that I've been doing ... I've been attending private court hearings under the legal bloggers pilot (one so far - a plan for a second one today scotched by an overrunning case and a desire to see a bit of lovely pomp when Mr Justice Baker was sworn in and transmogrified into Lord Justice Baker). My first blog post arising from the pilot (see PD36J) can be found on the Transparency Project website here : Inaugural legal blogging day

See also the dedicated legalbloggers hub page if you want to find out more (please do).

This is a big deal for me personally, for The Transparency Project, and for transparency generally. It was back in June 2014 that I wrote a blog pos called 'Proto Manifesto', proposing this :

For me, it is a waste of breath wishing the press did something they are never going to do : the press comprises of commercial enterprises, who need to sell stories to survive. The range of material they report will always be selective. The manner in which they report stories will usually be interesting, entertaining or racy, but not always informative or educative. On one level it's difficult to criticise them for that. As the fox said to the frog "it's in my nature to be a fox".

So the press aren't the answer.

And the transparency reforms comprising (so far) of the more widespread reporting of judgments on Bailii is not the answer. Because the public don't read Bailii. And the press don't link to Bailii so that the public can read an alternative account of their storified account of a case by matching it to a Bailii report. Does a judgment on Bailii make a sound if nobody is listening?

But I think more and different reporting may be part of the answer.

But not by the press. And not by what we would describe as "law reporters", for the Law Reports.

We need an organisation providing not for profit reporting of family cases for the public.

Let's tell them what happens in the family court. In the interesting scandalous cases for sure - but also in the run of the mill, happens up and down the country every working weekday sort of cases too.

Let's tell them when the system works as well as when it doesn't.

Let's have commentary, but let's clearly distinguish between reporting and commentary and let's make whatever we report accurate and balanced.

And let's put it all in one place, freely available to the public, searchable, authoritative and updated regularly.

Would that be so radical?

That was in 2014. It led to the creation of The Transparency Project. The idea of non-journalists going into court and doing public interest reporting was a bit too rad for 2014, but four and a bit years later that little seed of an idea has come to fruition. I fully expect it will be difficult, and that maybe even the take up won't be consistent, that attitudes to it will vary, and that we will meet some resistance and criticism. It will need skill and hard work to get right. But if you don't try you don't work out how to do things well.

Please take a look at the legal blogers page on the TP website and see if you think you could participate in this pilot.

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Louise Tickle and I will be running a transparency workshop for the British Association of Social Workers on 8 November for social workers and their managers.

Entitled ‘Harnessing transparency in the family courts as a power for good?’, this will be a specialist professional development day for social workers and managers, examining the dilemmas and benefits for social workers of more openness in family court proceedings and experiences of professionals and families.

The day is open to BASW members and non members, but places are limited.

Further details of the course and how to book are here.

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