Pink Tape is written by Lucy Reed, a family law barrister. In this blog you will see me identified as ‘Familoo’ I have been at the family bar for over a decade and am still amazed at how little most people understand about the work that I do and what goes on inside the Family Courts.
On 27 September Louise Tickle and I will be running a training day for Resolution :
Harnessing transparency in the family courts as a power for good?
A specialist professional development day for family law professionals examining the dilemmas and benefits of more openness in family court proceedings. The workshop is designed and delivered by Lucy Reed, family barrister and chair of the Transparency Project and Louise Tickle, award-winning journalist writing on family law.
The workshop will use a combination of presentation, worked examples, group work and discussion, and suitable for any family law practitioner working in the family courts in England & Wales, particularly children practitioners.
The workshop aims to illustrate the challenges facing different practitioners – family lawyers, social workers and journalists – as they try to balance privacy and transparency.
In addition to exploring the pros and cons of greater openness in family law, this workshop will aim to foster a better grasp of the pressures facing family lawyers, social workers and journalists as each profession grapples with what transparency means for them. The tension between privacy and the need for accountability and openness is always difficult to manage and fact specific – this course will encourage practitioners to be open, creative and responsive to those competing issues when they arise.
The session will cover the following areas:
Transparency in family cases: what is it and do we want more of it?
Balancing human rights: freedom of expression v private and family life.
Open and honest? The risks and rewards of greater transparency in care proceedings and family court hearings.
A journalist comes to court…
Ethics and transparency
How transparency could help family law professionals do their job better
By the end of the day, participants will have:
A deeper understanding of what greater transparency in the family courts could look like.
Examined the balance between competing human rights: freedom of expression, right to a fair trial and the right to private and family life, when it comes to opening-up family court procedures and outcomes to greater scrutiny.
Considered the potential risks and rewards of greater transparency in care proceedings and family court hearings for all parties such as children and families, professionals, public authorities, the court system, the public and press.
Feel more confident in dealing with transparency issues when they arise in your practice.
If you are interested in attending further details of cost and how to book can be found on the Resolution site.
I've had an email from a data protection officer at a local authority expressing concern that the article isn't correct, so I thought I'd better address it. I'm confident that I haven't in fact got the law wrong, but I thought it would be useful to explain why - and where I think wires have got crossed.
The DP Officer says this :
RIPA only applies to criminal investigations. She could never get an authorisation as it has to amount to a criminal offence for 12 months or tobacco or licensing.
For non- criminal matters you could do a RIPA type proportionality and necessity test but it falls outside the ambit of the RIPA regime as the Inspectors have previously confirmed.
Lets break that down.
RIPA only applies to criminal investigations?
RIPA isn’t just about criminal matters at all. It defines what surveillance is and how it can be rendered lawful. An authorisation acts as a shield against civil liability (see s27 RIPA). Such potential civil liability might be framed in a number of ways, but might for example arise from the interference with Article 8 rights that covert surveillance would undoubtedly represent.
An authorisation can only be granted if it is necessary on specific grounds. Those include but are not limited to criminal matters :
in the interests of national security;
for the purpose of preventing or detecting crime or of preventing disorder;
in the interests of the economic well-being of the United Kingdom;
in the interests of public safety;
for the purpose of protecting public health;
for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or
for any purpose (not falling within [the above] which is specified for the purposes of this subsection by an order made by the Secretary of State.
A narrower list applies to intrusive as opposed to directed surveillance, but the point is RIPA is about the lawfulness of surveillance in general - not about surveillance only for the purpose of a criminal investigation. If further proof of that were needed, see the Home Office Code of Practice which I quoted extensively from in the original post : whilst much of it relates to police activity, there is substantial coverage of surveillance by local authorities.
Ok, next part :
Could a local authority get an authorisation?
It is quite right that a LA could probably not get an authorisation for the sort of social work snooping I’ve described. Although it is possible to see how the sort of covert surveillance we're talking about might fit under a number of the non-crime headings above, the effect of RIPA insofar as it related to local authorities was adjusted in 2012 :
firstly via the Protection of Freedoms Act 2012, which prevented LAs from granting their own authorisations (they now have to go via a JP),
and secondly via the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, which limits the types of local authority investigation that can be authorised - as our correspondent suggests to serious crime and (somewhat randomly) tobacco and licensing. So as far as local authorities post 2012 goes, the list of potential authorisation grounds is considerably narrowed.
So, whilst it might have been possible to obtain a RIPA authorisation for this stuff up until 2012, it doesn't seem to be possible now.
Since 2012 there are heavy restrictions on what authorisations local authorities are allowed to grant/ apply for (as far as I understand it they are only permitted to authorise directed surveillance where it is for the purpose of preventing or detecting crime or of preventing disorder, and even then only in relation to certain specified types of crime), which is not going to apply for much of what we are looking at. Any authorisation is likely to need judicial approval (from a JP), and it needs to be in place BEFORE you start snooping (see 4.42)...
I did not say in terms that no social worker could ever get an authorisation for this sort of surveillance, but I did say that it was pretty unlikely / challenging and nobody who read my post carefully should have been under any illusion that they could simply grab an authorisation off the shelf and carry on as they were. Having sketched some of the potential difficulties, I made clear I wasn't going to get in to the detail of the authorisation regime, and that was because the primary purpose of the original post was to encourage professionals to appreciate and confront the fact that what many are doing (and apparently normalising) is in fact covert surveillance, and it is an interference with Article 8 right to privacy of private individuals. Which may have no lawful basis in the absence of a RIPA authorisation.
For the avoidance of doubt I don't think one can simply say that because RIPA no longer offers a route to authorisation a local authority 'isn't covered by RIPA' and can do whatever it likes with impunity. Whilst Article 8 arguments are unlikely to render the product of covert surveillance inadmissible in children proceedings, because of the countervailing Article 8 and other rights of the child, that does not mean that a civil claim for an interference of Article 8 might not be brought against a local authority if the facts were right. RIPA may not provide the answer, but a discussion of its definitions seemed like a useful framework for raising awareness of the intrusive, contentious and potentially risky conduct that some social workers are engaging in.
So how can we do this stuff lawfully?
My correspondent mentions in her email that I am not a criminal lawyer. I'm not. Nor am I a data protection lawyer. This is not my specific field, but it is an area of crossover, and family lawyers (as well as social workers) need to develop their knowledge in these areas. I don't hold myself out as any particular expert in the area, but I have taken care writing this and the previous post and have cross checked my view with others on the issues above, who have greater expertise than I and who concur.
In my day job I am in the happy position of being able to frown sternly when social workers describe what sounds like covert surveillance, and then sending them off with a flea in their ear to discuss with the legal department before taking another step. I don't usually have to deal with what follows but i do know I don't much like the idea of receiving a brief for a case that is dependent upon covert surveillance of a family by a social worker. It makes things very murky and is a distraction. My view from the perspective of the one who has to run the trial and try and protect a client against Human Rights Act claims, is : spell out in words of one syllable at the start that you are going to be checking up on the family so there is an expectation and an understanding that there is a necessary level of intrusion for a specified purpose. My broader advice to social workers was to go the legal department or relevant designated officers within the local authority to seek guidance before carrying out surveillance. That advice stands.
I'd be interested to know from those who work in local authority legal departments what their experience is of claims and complaints being made arising from covert surveillance by social workers (I'm not aware of any but guess there must be at least some and if there aren't it must be only a matter of time), and whether anyone else can think of any mechanism by which the risk of such a claim can be removed or reduced (is there any other framework for rendering this type of Article 8 interference lawful that I am missing? for example the police can use PACE to do some things and those don't need a RIPA authorisation). Quite apart from civil claims under the Human Rights Act I wonder whether there is a risk of adverse Ombudsman decisions, or of regulatory issues for social workers with reference to the HCPC code. There are also potentially significant issues in terms of GDPR / data protection. Thoughts welcome.
A footnote for parents
Parents should also understand that the fact that evidence has been obtained through covert surveillance does not necessarily mean that the court will disregard it, or that a claim can be brought under the Human Rights Act. As with cases where parents make covert recordings of social workers, the court when presented with such material will have to balance the relevance, strength and importance of the material as against any fairness issues that are raised. Ultimately, if it is likely to be evidence that is going to help the court make sound decisions for a child it may well be considered.
Feature pic courtesy of Flood G. on flickr (creative commons - thanks)
Every so often a video is circulated on Facebook or Twitter that shows the distressing removal of a child from its parents by police or social workers. Yesterday was one such day.
The video in question came with no context to speak of, though it was clear the mother from whom the child was removed alleged abuse by an ex partner which it appeared had not been accepted by the court that ordered the removal. There is no judgment, nor really any narrative (probably just as well as that might have breached privacy rules). I don't know if the child was removed because of her refusal to allow contact to the ex, or if there was some other unconnected reason that the court thought her child had to be removed. I don't know if this mother and child were the victims of a miscarriage of justice, or whether allegations were made that could not be proved or were proved false. I don't know why this child was removed or what the risks were. Maybe it was a necessary decision and maybe not. I don't know if an appeal has been pursued or is pending.
What I do now know however - as a result of this mother's action - is the name of the child, the local authority involved, the region the child lived in, and what she looks like. People in her local community may know her or may recognise the adults. They may know who her other parent or the ex partner is and think (rightly or wrongly) that this person is domestically abusive. They may confront the person now caring for her with the approval of the court, causing her distress and disruption.
Maybe this child should never have been taken, and maybe she needs desperately to be returned home. But if that is the case this video doesn't evidence it. And nor will it help this mother to make her case. What it might do is reduce the chances of her being able to progress her contact, or to see her child unsupervised. it might get her into difficulty with the court because of breaches of the privacy rules that attach to court cases about children.
I understand why an increasing number of parents turn to social media to vent, to seek support and to campaign about the injustices they feel they have experienced, I understand on a human level why this seems like a good idea to those in pain and desperation, especially where trust in the system has broken down. But I worry these parents will only be making things harder for themselves and their children in the long run. Judges do not overturn their decisions (and nor do appeal courts overturn those of lower judges) because of a video being shared on social media. They overturn decisions or change orders for two reasons : somebody demonstrates using evidence and law through the proper channels that the decision was wrong in the first place, or something changes that means a decision that was right at the time needs to be updated. Campaigns like this serve two entirely different purposes : they make people in pain feel better (at least in the short term), and they might (in rare cases) bring about a change for future cases (but probably not in a way that will help the specific parent or child in question).
It’s important to say that such videos are always upsetting to watch. Removals are always difficult, whether they are necessary and skilfully handled, or unjustified and botched. Children love and are attached to their parents, even those whose parents are sometimes frightening, neglectful or abusive. Even abused children cry when they are taken away by strangers and when they see the distress of their parent. And of course sometimes children have to be taken temporarily away from a parent for their own protection whilst an investigation is carried out - and it may later be shown that the parent has never harmed the child at all.
I do watch these videos from time to time, because I think it's important to be in touch with the reality and consequences of a court order on a piece of paper, of what happens outside the courtroom. And because if removals are being carried out inappropriately, well I just want to know.
It's in the nature of this sort of event that people only switch on their phone to record part way through, or only circulate a clip of the most distressing part of a removal. It is very difficult to tell whether what has gone before has contributed to the distress we see playing out - and that might be inappropriate remarks or behaviour by the taking professionals, or things said by a parent which have the intent or effect of increasing the emotional temperature and turning a removal into a standoff, or which give a very clear signal to the child. Such signals to a younger child might simply make them fearful and audibly upset, and in an older child might prompt acting our or active resistance. Some children are taught by their parents from early on to fear social workers and police. Sometimes a situation becomes drawn out and upsetting and an impasse develops and those responsible for taking the child elsewhere have to take steps to bring the situation to an end safely, if not happily. Those of us watching the clips later have no idea of the risks that the social workers or police officers are trying to protect the child from. How do we weigh the wrongness of those immediate heart wrenching cries and wails against an unknown risk of harm? When people hold pre-existing doubts about social workers, about the family courts or about the justice system generally, the answer can seem - in the moment - obvious. But whatever the failures of courts and social workers are, it is undoubtedly true that some parents harm their children, and some of those children desperately need to be taken somewhere safe. How do we know whether this is one of those situations?
I've been working in this field for sixteen years, sometimes representing parents and sometimes children and sometimes social services. Some attempts at removal seem justified, some over zealous. Some are allowed, whilst others are rejected or avoided when we put a Plan B in place. In those sixteen years I have read about and heard about interventions by social workers and police which have been badly handled, bullying and cack handed, but I have also represented clients who are able to appreciate that if their child is going to be removed they are the person who can make that manageable for the child by packing their favourite things, by saying goodbye calmly and by reassuring them. Those parents are brave indeed. I should also say that whilst I have met social workers who have given real thought to how a removal should be best achieved to minimise the upset for all concerned, it is probably fair to say that often the focus is (necessarily) on whether or not the court will permit removal, which then takes place in a rushed way at the end of a court / school day with limited time for packing, planning, calming. I've also spoken to social workers distraught by the reality of their first removal. It is not a job that they relish even if they hold a strong view that the safety of a child makes it necessary. I don't think either social workers or police officers get sufficient training in this area, and suspect that often the drive to get in and get out without compromising the physical safety of anyone involved overrides more subtle considerations.
Those of us who are parents also know that a child's distress in the moment can be viscerally upsetting and extreme - but over in five minutes. Any parent who has done those difficult nursery drop offs or contact handovers knows that transition can be upsetting for little ones and it is so, so hard to leave them and to let them go because it feels so cruel. I don't underplay the very real distress and harm that removal itself can cause, but it is perhaps sensible not to over interpret tears and crying at the point of removal.
So, for all sorts of reasons, when we see these videos on the internet there is huge potential for misunderstanding, outrage and harm.
What has upset me most about this particular video being shared is not the mother's (unwise but understandable) decision to publish it - but the decision by a prominent public figure involved in the justice system to retweet it, apparently without any investigation of the background facts or the status of any proceedings (and thus the applicable law) on the basis it 'looks like an example' of how courts 'collude' with abusers. This person's click has validated the mother's tweet and emboldened far more people to distribute it more widely. If this mother, who has enough pressure upon her already, has inadvertently (or even knowingly) broken privacy rules and laws, this public figure has made the consequences of her error that much worse. Because the breach of privacy involved is now far more extensive - and it is far more likely that the named local authority will become aware of this emerging campaign and take action to prevent wider dissemination and protect the child and carer from unwanted attention from the public or media. I can tell you for sure that no lawyer representing a parent seeking more or unsupervised contact with their removed child wants this as a backdrop to their application.
It's also worth saying that the unnamed 'abuser' in the background here might be a very nasty piece of work who represents an ongoing risk to the child (which for some reason the family court hasn't appreciated), OR they might themselves be a victim of inaccurate or false reports of their behaviour and personality. That person might now be very worried about how to protect themselves and the child in their care.
Whether this public figure was motivated by a wish to help this particular mother or by a wish to use her case as a springboard for reform around the wider issue of how the Family Court deals with domestic abuse (both legitimate aims), she would have been far better able to advance those causes had she first checked out the case and the restrictions that might apply to it in private - and thought a little bit about whether it was helpful to circulate a video of an identifiable child, who is on any basis caught up in some sort of conflict and potentially a victim of either domestic or emotional abuse. For any person whose role centres around victims (as this person's does), it seems a good idea to think about who the victims really are before hitting that button.
Whilst I don't know enough about the case to know which particular provisions apply to the publication of information about this child, it is worth saying that retweets of the original video or accompanying messages are potentially a contempt of court or a criminal offence. Something that most people seem oblivious to or don't care much about. Whoever the real victims are here (and the child is obviously one of them), promoting trial by social media is not a reliable way of protecting them.
For obvious reasons I'm not naming or linking to anyone involved in this. The prominent person who retweeted the video has not responded to queries as to their prior research, and at the time of writing the video and the retweet remain. The mother has blocked me, but I hope very much she gets some legal advice. If something has gone wrong here (and even if it hasn't) she needs some advice to help her think through her realistic options.
LEGAL FOOTNOTE :
I'm not able to accept any comments that attempt to argue or advance the specific facts of this case or identify those involved.
That says that 'Social workers are risking breaking the law because they are using Facebook to spy on families and inform decisions on child custody, academics say.'
This is not news to those of us who act for parents or social workers in these cases (in fact they say custody cases but its clear they are really talking about cases where social workers are involved for child protection reasons, so this would more often arise in care proceedings than disputes between parents). I have been worried about the lawfulness of what social workers are doing for some time, and the low levels of awareness of the potential legal issues - hence my plan to write this post.
What the Times say is that the study they are referring to found '“surveillance” of Facebook accounts was common. Social workers used fake profiles to “friend” parents in cases where their posts were not publicly viewable. They watched parents’ relationships and behaviour, looking out for factors such as abusive partners or drug use.'
Oddly, I've been able to find no trace of this study and it has been suggested that what is being referred to is some sort of leaked draft. No matter, the point is that it chimes with my own experience. Social workers do this stuff because it is a very effective way of seeing whether parents are walking the walk as well as talking the talk. You'd be surprised how often parents will insist that their lifestyle is all Little House on the Prairie, but their Facebook feed suggests its rather more Kardashian (I don't really know who the Kardashian's are but I believe they have big bottoms and very exciting lifestyles). And of course parents/ex partners harvest and produce this stuff too when warring over children or divorce.
Many would say that if it's on a public Facebook page its fair game, and if it shows a child is at risk it should be admitted in evidence (and can you just stop complicating things please, Reed?). Those are reasonable perspectives. But just because something is a good idea or is a means to an end, doesn't mean its lawful. And where it is the state gathering and using this material there is a pretty good chance that it isn't lawful at all (parents need not panic this applies to situations where social workers are looking at and gathering data about private individuals).
So. The law. Do you have a caffeinated drink and a stress ball handy? Then I'll begin. What follows is merely a sketch, not a comprehensive guide.
Social workers are employed by local authorities. As such, when they are carrying out their job they are acting as agents for a public authority. The Regulation of Investigatory Powers Act 2000 regulates surveillance of private individuals (you and me) by public authorities (NB same probably also applies to CAFCASS guardians and reporting officers).
The 2000 Act regulates this activity not by saying what is unlawful, but by providing a route to give authorisation for specific types of covert surveillance - it's a piece of shield legislation. That is to say that if a public authority sticks to the requirements of the act it is protected against claims under the human rights act. If it doesn't it's fair game and may find itself liable under various bits of law (tort, criminal, human rights, privacy etc etc). Unless of course some other law specifically authorises the activity.
Surveillance 'includes monitoring, observing or listening to persons, their movements, conversations or other activities and communications.'
It's 'covert' if it is carried out in 'a manner calculated to ensure that any persons who are subject to the surveillance are unaware that it is or may be taking place'.
RIPA divides covert surveillance into 'directed' or 'intrusive' surveillance. In short intrusive is surveillance of people's homes and cars. Directed surveillance is surveillance that doesn't qualify as 'intrusive', but is conducted for the purposes of a specific investigation and likely to result in the obtaining of private information about any person.
With me so far? Take a slug of coffee. Continue...
We can see from the above that lots of things that social workers routinely do might amount to directed or intrusive surveillance. Here are some examples that I bet every care lawyer has seen at least once :
social worker sitting in their car around the corner from a family home waiting to see if the violent ex turns back up and is let in, or if his car is still there in the morning, or routinely arriving a few minutes early to see if they can catch them out.
social worker on unannounced visit when family are out peering in the window and recording the carnage they see inside - or peering over the gate to see if that mouldy mattress or bags of rubbish are still in the garden.
social worker arriving for a visit and listening from outside before ringing the bell
social worker who sees Mr X and Mrs Y with the children in a car together and decides to follow them to see where they are going
social worker checking the Facebook profile of the parents in a case to see what they are up to (relationship status, when they are out socialising, who they are friends with), making a note of these things or screenshotting etc.
This is where most people are going 'Holy sh*t'. That IS covert surveillance. And there is some LAW about it.
Alright, but a public Facebook profile isn't private so it's fine. Right? Nuh uh.
3.4 Whilst a person may have a reduced expectation of privacy when in a public place,covert surveillance of that person’s activities in public may still result in the obtaining of private information. This is likely to be the case where that person has a reasonable expectation of privacy even though acting in public and where a record is being made by a public authority of that person’s activities for future consideration or analysis. Surveillance of publicly accessible areas of the internet should be treated in a similar way, recognising that there may be an expectation of privacy over information which is on the internet, particularly where accessing information on social media websites...
3.5 Private life considerations are particularly likely to arise if several records are to be analysed together in order to establish, for example, a pattern of behaviour, or if one or more pieces of information (whether or not available in the public domain) are covertly (or in some cases overtly) obtained for the purpose of making a permanent record about a person or for subsequent data processing to generate further information. In such circumstances, the totality of information gleaned may constitute private information even if individual records do not. Where such conduct includes covert surveillance, a directed surveillance authorisation may be considered appropriate.
3.10 The growth of the internet, and the extent of the information that is now available online, presents new opportunities for public authorities to view or gather information which may assist them in preventing or detecting crime or carrying out other statutory functions, as well as in understanding and engaging with the public they serve. It is important that public authorities are able to make full and lawful use of this information for their statutory purposes. Much of it can be accessed without the need for RIPA authorisation; use of the internet prior to an investigation should not normally engage privacy considerations. But if the study of an individual’s online presence becomes persistent, or where material obtained from any check is to be extracted and recorded and may engage privacy considerations, RIPA authorisations may need to be considered.
Right, so taking a quick look once on the off chance might be ok - but checking back multiple times and joining the dots. Not so much. Here's the example that they give in the guidance and you can easily translate it onto social workers hanging around a family home :
Example: Officers of a local authority wish to drive past a café for the purposes of obtaining a photograph of the exterior. Reconnaissance of this nature is not likely to require a directed surveillance authorisation as no private information about any person is likely to be obtained or recorded. However, if the authority wished to conduct a similar exercise, for example to establish a pattern of occupancy of the premises by any person, the accumulation of information is likely to result in the obtaining of private information about that person and a directed surveillance authorisation should be considered.
And if you were thinking that it's probably fine where someone hasn't bothered to put any privacy settings on their social media account, think again :
3.13 depending on the nature of the online platform, there may be a reduced expectation of privacy where information relating to a person or group of people is made openly available within the public domain, however in some circumstances privacy implications still apply. This is because the intention when making such information available was not for it to be used for a covert purpose such as investigative activity. This is regardless of whether a user of a website or social media platform has sought to protect such information by restricting its access by activating privacy settings....
See these examples at 3.15, which again have obvious parallels for social workers tasked with gathering evidence to support their assertions about disguised compliance or ongoing relationships etc for the purposes of care proceedings:
Example 1: A police officer undertakes a simple internet search on a name, address or telephone number to find out whether a subject of interest has an online presence. This is unlikely to need an authorisation. However, if having found an individual’s social media profile or identity, it is decided to monitor it or extract information from it for retention in a record because it is relevant to an investigation or operation, authorisation should then be considered.
Example 2: A customs officer makes an initial examination of an individual’sonline profile to establish whether they are of relevance to an investigation. This is unlikely to need an authorisation. However, if during that visit it is intended to extract and record information to establish a profile including information such as identity, pattern of life, habits, intentions or associations, it may be advisable to have in place an authorisation even for that single visit. (As set out in the following paragraph, the purpose of the visit may be relevant as to whether an authorisation should be sought.)
So, how many social workers who think its just part of the job to 'keep an eye' on families who are suspected of disguised compliance, who think its all part of their social work toolkit of 'respectful skepticism', have got a RIPA authorisation for this stuff? How many of their lawyers even knew this was a thing? Gulp... (I'm not being a clever arse here, I too was pretty clueless about this until I had to look it up one time.)
I think the position may be different if there is a clear written agreement in place which says that visits may be made that will be announced and unannounced, because in that scenario the expectations of privacy are somewhat different and the surveillance is not covert. 3.12 confirms that :
where a public authority has taken reasonable steps to inform the public or particular individuals that the surveillance is or may be taking place, the activity may be regarded as overt and a directed surveillance authorisation will not normally be available.
It is important therefore that thought is given to this, and that sufficient attention is paid to the drafting and logging of such agreements. Written agreements or even just writing to a parent to tell them this is how you work are likely to remove much of the risk in this area.
A further thing to think about is interaction via Facebook without being up front about who you are. In my direct experience social workers seem to know that pretending you are someone else in order to extract information is not ok, but I am a member of a number of parents groups on Facebook where this is a real worry and parents are very careful to vet who is allowed access to the groups (I'm open about who I am on these groups btw!). The Times example gives a quote apparently from the research study, from a social worker apparently bragging to a colleague about her fake Facebook profile set up for the sole purpose of 'stalking' parents. Yikes. The guidance says :
3.11 Where a person acting on behalf of a public authority is intending to engage with others online without disclosing his or her identity, a Covert Human Intelligence Sources authorisation may be needed.
Sneaking into a private Facebook group under a pseudonym is a definite no no.
And for members of the independent bar who think its ok for them to have a quick squint and report back to their local authority clients - thats also a no (which should come as no surprise frankly) :
3.17 Internet searches carried out by a third party on behalf of a public authority, or with the use of a search tool, may still require a directed surveillance authorisation...
4.32 a surveillance authorisation should also be considered where the public authority is aware that a third party (that is not a public authority) is independently conducting surveillance and the public authority intends to make use of any suitable material obtained by the third party for the purposes of a specific investigation being undertaken by that public authority.
OK chaps, we're gonna need some authorisations...
Firstly, it's gotta be necessary and proportionate. This involves balancing the seriousness of the intrusion into privacy against the need for the operation. Is it REALLY necessary and proportionate?? Can you get this information another way? (If you can get it by being up front through a notification or written agreement I'd say not). Also see 4.10 :
When completing an application for a warrant or authorisation, the public authority must ensure that the case for the warrant or authorisation is presented in the application in a fair and balanced way. In particular, all reasonable efforts should be made to take into account information which weakens the case for the warrant or authorisation.
Since 2012 there are heavy restrictions on what authorisations local authorities are allowed to grant/ apply for (as far as I understand it they are only permitted to authorise directed surveillance where it is for the purpose of preventing or detecting crime or of preventing disorder, and even then only in relation to certain specified types of crime), which is not going to apply for much of what we are looking at. Any authorisation is likely to need judicial approval (from a JP), and it needs to be in place BEFORE you start snooping (see 4.42). I confess that I have lost the will to live with trying to spell this bit out since Lexis is down for maintenance and I'd need to cross reference two acts and various iterations of the applicable regs to work it all out.
So I'd suggest this. Think hard. Think long and hard about this stuff before cracking on without an authorisation or before applying for one. It's tempting, but it's not always going to be justifiable - or frankly, worth the effort and risk. And find out who the person is in your organisation is that is responsible for this stuff. And get them to provide some training!
Whilst I've referred here to the Home Office Guidance rather than the Act directly, you can see that this is a veritable minefield which many are happily skipping through as if it were a summer meadow.
There are other examples in family law where everyone has been operating under the collective delusion that because we do this stuff it must be lawful. Take the case of Tchenguiz & Ors v Imerman (Rev 4)  EWCA Civ 908 where the Court of Appeal said there was no special rule in the Family Court that sanctioned otherwise unlawful conduct (that case was about a wife taking private documents from a husband to demonstrate his dishonesty about his financial position on divorce, which had previously been thought to be permissible in certain circumstances). See also Prest v Petrodel Resources  2 AC 415 in which Lord Sumption issued a reminder that 'courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different' (See speech of Lord Sumption here and my blog post about it at the time).
Those cases are a reminder that we can't just apply the magic hand wave of family court specialness or mutter something about 'child protection' or 'the best interests of the child' and pretend we haven't noticed. Social workers need advice and support on this and their lawyers should be ready to deliver it. Whilst unlawfulness is not itself a bar to evidence being admitted into family proceedings and relied upon (see here), this will not protect a local authority from privacy / human rights / data protection actions brought by parents.
This is a tricky area. Sometimes this evidence is dynamite and it can be the difference between a child being protected from collusion and concealed risk/harm and a case failing. It might sometimes be the only way of showing that a suspicion is founded in reality - but in reality I doubt that is often so, and in any event our courts quite rightly work on the basis of fairness, and evidence rather than suspicion. What's more it does the social work profession no favours to be seen as going about this with complete disregard for the law and the privacy of families. If you stop and think about it, it is actually oppressive and disrespectful and an abuse of power, and can only further damage the ability of social workers to gain an understanding of the strengths and weaknesses of families, and to assess their honesty through a mutually trusting professional relationship.
Conclusion : Must do better (All of us).
Feature pic courtesy of Flood G. on flickr (creative commons - thanks)
Every time I look down I see my grandmother's hands.
Every time I look down (click clack on the keyboard) I see my grandmother's hands...
Knuckles that kneaded pastry for pies, palms that rolled dumplings for stew. Fingers that stitched and mended. Hands that taught me to embroider and knit and that picked up my dropped stitches. That made me sundresses and party frocks (and always stuck the pins in me when measuring me up against the paper pattern). Nails that split stems for threading daisy chains.
Hands that shelled peas and beans in warm sunshine. That made sunhats and tiny swans from knotted hankies. Hands that wielded scissors clumsily for childhood haircuts. That sometimes tied my hair in rags at night and teased out limp ringlets in the morning.
Hands that flicked through Barbara Cartland and Womens Weekly and tapped a Silk Cut held in a long black cigarette holder into a standing brass ashtray.
Nails that were always painted and perfect and pink.
Oil of Ulay hands with skin that was always soft and elastic and droopy, folding around joints swollen with arthritis, wrinkled velvet like a puppies nose. And silver rings.
Silver rings that went clack clack in summer heat as oil was rolled around palms and then along brown limbs.
A curved little finger made specially for tea drinking and for scooping just the right amount of mince meat off the spoon and into the pie case.
Later... hands that held mine tightly when she was frightened of falling, or dying. Hands that said silent crushing thank yous when I brushed her hair or tidied her up.
I type a lot. Grandma never typed. My fingers hurt these days and my joints are getting gnarly. And every time I look down I see my hands becoming my grandmother's hands. Drier skin and brittle unvarnished nails - but undeniably her tea drinking finger, her droopy skin and knobbly joints. And her silver rings. And a few of her tricks handed down through her hands, through my hands and on to the next...
This is a review by Rodney Noon of a book co-written by myself, Julie Doughty and Paul Magrath. It originally appeared in Nagalro's Seen & Heard (Vol 29, Issue 1, 2019) and is reproduced with kind permission.
When selecting books for review, it has been my policy to filter the lists by asking, 'Is this a book which might justify a place on a practitioner's bookshelves?' Since receiving the review copy of this comprehensive exposition by my predecessor at the helm of Seen and Heard, the Chair of the Transparency Project and counsel at the Incorporated Council of Law Reporting for England and Wales, I have twice reached for it and twice found the answer. It is difficult to offer a practitioner's text higher praise.
The issue of transparency within the Family Court and Court of Protection is very current and subject to rapid developments. Since this book was published, we have seen the advent of facilities for legal bloggers to attend hearings int he family court. It would have been wonderful if everything could have been gathered up into a single, comprehensive piece of legislation and a dedicated part in the Family Procedure Rules, so that when an issue suddenly ambushed a practitioner from the dark corner of a file, they would know where all the rules were to be found. Sadly, that is not what has happened.
The rules are found scattered across a range of (Sometimes obscure) pieces of legislation, diverse parts of the rules and a range of judgments. It is a tribute to the thoroughness with which the authors have approached their task that they have managed to gather all the scattered pieces together and to form them into something resembling a comprehensible whole. It is no fault of the authors that there are places where the bits just do not fit. Pieces of different statutes point in different directions and two judges have taken different approaches to the same issue. It is to the authors' credit that they do not shy away from these problems; instead they explain the contradictions, describing the world as it is, not as we might like it to be.
This is not an academic text book. It is written for practitioners to tell them clearly where to find the right rules and what they actually say. I was particularly impressed by the helpful section about monitoring social media and how to get things removed.
Whether lawyer or social worker, we all need to understand the changes which are happening within the environment in which we practice. We would all be better practitioners for carefully reading this book.
Rodney Noon is a Solicitor-Advocate, Bradford, W Yorks.
I've been getting blank faces whenever I've asked colleagues what they think of the latest 'President's View' (the first from this reincarnation of the President, Lord Justice Macfarlane). Turns out that was because nobody has had time to read Family Law journal and it hadn't made it's way into the wider world. Eventually I emailed the President's office to see if the publication of the View only behind a paywall was intentional. 24 hours later its all over the place, so I guess it wasn't (if you want to read it in full it is here).
I've re-read it now, and see there is more in it than the middle chunk entitled 'Well-being: dealing with the current pressure', which had me tossing the journal across the desk in despair the first time around. But that middle chunk is still bothering me. I'll precis it for those who CBA to read it or who have worked out for themselves that they will have to cut out non-essentials like keeping up to speed in order to keep heads above water :
the President is concerned for the wellbeing of all of us
he cant do anything about workloads
it isn't business as usual - it's ok to cut some corners (which ones? does that apply to us?) and exceed time limits (when?) otherwise we risk burn out (please could someone tell this to the judges?)
the President is 'encouraging local dialogue' between us and our respective DFJs so that parameters may be agreed as to what is sensible and acceptable working practices - he gives examples of what might be discussed and agreed :
the earliest and latest time of day when the court can reasonably be expected to sit
the latest time in the evening / earliest time in the morning when it is acceptable to send an email to another lawyer in a case or to the court
reducing a position statement to one side of A4 bullet points on the basis that fuller oral submissions may be made at court
relaxation of the requirements to lodge preliminary docs by 11.00am the day before a hearing.
However, the President says it is a given we will continue to 'go the extra mile' when needed (but it's ALWAYS NEEDED!)
The President is giving us psychological 'permission' to talk about these things together and with local judges.
I'm pausing to push my despair back down to its safe hiding place as I type. I like the President very much but this is impossible. We have duties to clients - I can't do a half arsed position statement and hope that the judge who is at breaking point and doesn't have time in his list will let me waffle on to make it right the next day. I can't not respond to an email late at night if the hearing is tomorrow and there is a risk I might get bawled out for not being ready when I rock up at court. I can't know what local practice has resulted from 'local dialogue' in a neighbouring court, and how not lodging a preliminary document by 11.00am will go down (in some courts I've appeared in, filing a document at 11.01 unequivocally results in a refusal even to acknowledge the existence of the document, even if one was briefed at 10.59 and the document is genuinely important).
We don't need psychological permission to go and have a nice cosy chat with our DFJ in the way that children need permission from one parent to go to the other. We need leaders to say we don't have to do this, we must not do this.
Not only will 'local dialogue' result in a complete postcode lottery depending on how cuddly the DFJ in a particular area is (and I can tell you some are decidedly more cuddly than others), it will result in confusion where advocates are briefed across DFJ borders (this already happens but it will get worse). For example, some judges consider it the norm (so I understand) to sit up to and even after 6pm and advocates are simply expected to have childcare in place. And some judges demand full written openings and detailed agreed advocate's chronologies for every care final hearing (a rarity where we are). And more importantly, in some DFJ areas (not mine, for what its worth) it would be utterly impossible for a productive dialogue to take place because the environment is such that professionals are in a state of perpetual anxiety waiting for the next b*locking. There have already been some localised flare ups in a couple of areas in response to unhelpful missives and local guidance about the prompt e-filing of orders and compliance courts which do not make for a great starting point for dialogue. It is really hard even with a cuddly DFJ to broach these issues. It is impossible in courts where the judiciary are overly fond of enforcement, shouting and threats of wasted costs.
This is all interconnected with the rising awareness of judicial bullying. Firstly let me reiterate that most judges are not bullies. And occasionally a judge who bullies does so just because that is how they are. I happen to think though that most of the judicial bullying that takes place is unintentional and where a judge's 'robust case management' tips into inappropriate and bullying behaviour, in part because of the pressures the judges themselves are under, and their loss of perspective as to what the pressures are for the bar and solicitors (and social workers). The pressures are far more intense than when most judges were in practice and I don't think they are comparing like for like when thinking back to what we have to contend with and trying to set realistic tasks and deadlines. The fact of the matter is, whatever the President says about how it cannot be right that we go the extra mile as a matter of routine, advocates in some areas ARE expected to go the extra mile ALL THE TIME. And roundly criticised when they can't keep it up.
Andrew Macfarlane is eminently approachable, and this is obviously a genuine attempt to help, but not all judges are approachable. And, as I was reminded by someone who had listened to the Word of Mouth radio programme I took part in recently, the law is astonishingly hierarchical. Challenging a judge in an individual case because it is your job to be a fearless advocate, or irritating the judge in the individual case because your client's instructions are frankly batty, is one thing - but asking a judge known to be fierce and rigid about time limits and procedure to 'cut corners' so you can get a bit more sleep is quite another, even if prefaced with 'the big P has told me to ask you'. In fact, starting such a dialogue with any judge is really difficult for the advocates that appear before him or her. I am anxious about publishing this blog post even though I have been very careful to talk in general terms and not identify any particular judge or area. I speak based on my own direct knowledge of appearing in courts all over the jurisdiction and from what many have shared with me (in part because I have written about judicial bullying before). Writing this blog in general terms is one limited way I can support colleagues at the bar and in other professions who frankly have it worse than I do. You know who you are.
So there we are. Please don't leave it to those of us at the coalface to sort out amongst ourselves by asking the impossible of those higher up the chain who hold far greater power than we. Please don't leave it to DFJs to sort out this impossible task - its like feeding the five thousand. Please don't allow a situation to develop where professionals in one area feel unable to speak up and burnout or leave as a result. By all means listen to us, but do not place upon us the responsibility to tell our superiors what to do. Sometimes the adults have to take charge.
Feature pic : Daniel Mennerich on Flickr - creative commons - thanks
As it happened, Paul Magrath was in the middle of writing his review of the latest edition of Clarity for Lawyers (Adler and Perry) (sounds excellent – please buy me one for my birthday) – and when he heard about the programme helpfully sent me some extracts from it, along with an excellent speech from Lady Justice Rafferty about the same topic. Whilst I highly recommend both, I feel I have to observe that for a speech about clarity of language I still had to look up one word – ‘quotidian’, and another ‘plasticity’ is one I like but which I almost always have to explain).
Actually I don’t think legalese is exclusive to lawyers as such, in that all professions, industries and many other specialist groupings have their own codes, languages and acronyms which can exclude outsiders intentionally or otherwise. All humans use language in such ways for convenience or speed, but also sometimes to create a sense of belonging to a community by excluding others (think pig latin). We speak in special ways – are you like us?
I think that the reasons we lawyers tend towards using five words when one will do, or prefer to use an unusual or complicated word instead of a simple one are multi-layered. And that some of those reasons are better justification than others for – sometimes – using hard words in what we do.
Personally, I was drawn to the law by a passion for advocacy. I love to use words, to articulate things in a way that flows and is compelling, and is satisfyingly structured and coherent. There is a beauty in a well formed written skeleton argument (never more perfect than before it is torn to pieces by the judge or opposing counsel), and there is joy in delivering arguments through oral advocacy and noticing that your audience of one, the judge, is listening and furiously noting what you say (although sometimes they are furiously noting what you say so that they can better articulate with force that you are wrong and your arguments crap). More so when you know that you are giving form to what your client would struggle to articulate or to get heard.
It is so tempting to dust off a rarely used or unusual gem of a word and to drop it in to a sentence where it can sparkle. But the job of an advocate is really not to dazzle but to explain. Good advocacy is pleasingly coherent – it should be a revelation that makes everything make sense – it should not be boring or monotonous but it should also never be blingy. There is nothing wrong in using a technical word if it can avoid a tedious explanation but so often a clever or ‘special’ word or phrase (including latin) is not actually any quicker or less accurate than a plain English alternative.
Anyway, before heading to Old Broadcasting House I did a spot of social media ‘research’ – asking people who had been through family courts what use of language they found surprising or confusing. Predictably enough some answered the question they wished I’d asked rather than the one I actually did ask, and took my tweet as a springboard to tell me all about the things that were wrong with family courts and lawyers – but many responded with words and phrases that had perplexed or surprised them – some I had successfully predicted would be on the list and quite a few I hadn’t. Thanks to all of you.
Here is a little run through of some (not all) of the responses I got (with a few of my own for good measure). One or two were covered in the course for the recording (though I don’t know if they will end up on the cutting room floor), but here I can cover more.
The first batch are about words for lawyers. This is definitely a source of confusion and the most popular searches on this blog are always for ‘what’s the difference between a barrister and a solicitor?’ or variations on that theme. Here is the blog post answering that question by the way.
Barristers and solicitors are both types of lawyer but a lawyer can’t be both, they are either one or the other. Barristers are specialist advocates, but ini fact both types of lawyer can be an advocate (there are also legal executives but I’m trying to keep it simple). See my super duper venn diagram (No, I’m not giving up the day job to be a maths teacher don’t worry).
Counsel is another name for a barrister. When the judge asks for ‘counsel only’ it means she wants to see only the lawyers without their clients. When a solicitor briefs counsel they are sending the case to a barrister so they can deal with a hearing or advise on the case.
Queen’s Counsel (QC) is a senior barrister who has been given the rank of ‘QC’ as a mark of excellence. Also called a silk (something to do with the special garments worn by QC’s).
Any barrister who isn’t a QC is a ‘junior barrister’ no matter how senior they are. Barristers who are experienced but not senior enough to be a QC they are called a ‘senior junior’. Yes, daft isn’t it?
Chambers – what the rest of the world call offices. Mainly different because barristers don’t (generally) work in a ‘firm’ or company, but are independent sole traders who club together to pay for a room in chambers and share clerks (employed staff who receive enquiries, get in work and allocate it).
Findings – when a judge has decided something has been proved after a trial.
Held – I was always told that a judge finds facts and holds as to the law. So, on an appeal the court ‘held that…’ the law is x. But frankly, now I’ve typed that I’m not sure and I want to go and look it up!
Skeleton – a written legal argument in outline form.
Submissions – the lawyers speechy bit at the end of the case (sometimes done in writing)
Issue – a phrase used by lawyers to mean the things that are in dispute – but only the ones that actually need to be decided for the judge to make a decision. Cue affronted client when told that something that is very important to them is ‘not an issue’ and hurried explanation that what is important to the client is not always relevant for the judge…
ex parte – latin. These days it should be replaced with the phrase ‘without notice’, but often isn’t. It means ‘in the absence of a party’ and applies mainly when one party goes to court to get a domestic violence injunction in place before the other party is told (because if warned in advance they might do something daft). Ex parte hearings should be followed swiftly by an ‘inter partes’ (‘on notice’ or between parties) hearing so that the person who was not present the first time can have their say.
without prejudice – relates to private correspondence and negotiation that the judge should not be told about until after he has decided the case. Applies to what is said in mediation, not that you’d notice given the regularity with which people submit mediation material.
prima facie – more horrid latin. Means ‘on the face of it’. Someone who has a ‘prima facie case’ is someone who has presented enough evidence for it to be looked at, but it doesn’t mean the case will be made out if its poked and prodded and turned around and looked at from behind.
Housekeeping – stupid, trivializing phrase that I am trying to unlearn for administrative stuff that needs to be sorted out at the start of a hearing. which order are the witnesses going in, where is the witness bundle
Part-heard – when a hearing breaks off to a later date half way through the evidence. When the case is part-heard ll the same advocates and judge have to continue the case until the evidence is finished and the judgment given which means lots of diary juggling.
My learned friend – what barristers call one another in court when they have forgotten the other one’s name.
My friend – what barristers call solicitors when they are in pompous git mode (making the point that the solicitor isn’t a barrister).
Disguised compliance – as someone said recently a complicated word social workers use when they think parents are lying but can’t prove it. The name makes zero sense but I think is meant to mean when parents disguise the fact they disagree there is anything wrong with their parenting by superficially doing what they are asked to in order to get social workers off their back. Putting on a show or game playing would work just as well.
More generally, acronyms and using the section numbers from a piece of legislation as a shorthand to identify a thing in that section are a general bugbear…. There are so many I can’t even begin to decode them… EPO, ICO, s20, s7, s37, s47, FHDRA, DRA, IRH, PTR, GRH…
Threshold – this is a reference to first stage of the legal test for making a care order in section 31 Children Act 1989. It roughly translates as : is there enough evidence of actual significant harm to open the door to care orders? Has the parenting crossed the line into care order territory (separate question from whether a care order should or will be made)?
Paramountcy principle – means childs welfare trumps everything else
Paginated bundle – a bundle is what lawyers call the file(s) of court papers, put in order and separated into numbered sections so that the judge, lawyers and witnesses can all find the same documents in the same place (in theory).
Others that require a more in depth explanation (a job for another day) include :
pool of possible perpetrators / in the pool
standard / burden of proof
balance of probabilities
order / direction / recitals
Re B-S analysis
Anyway, that’s all I have time for now but do listen to the programme this afternoon or on catch up. I may do some more translations in due course.
And thanks again to those who took time to send me their ideas…
POST SCRIPT : One of the things I hope the legal blogging pilot will help with is decoding and translating what happens in court. I’m running a workshop for lawyers, about Journalists and legal bloggers attending family courts next Tuesday. Spaces are still available but booking is essential. More info here.
Next week I’ll be running this Transparency Project training workshop for lawyers. Please do come if you can.
In light of the Legal Blogging Pilot implemented through PD36J, The Transparency Project are running a CPD workshop for lawyers interested in brushing up their ‘transparency’ knowledge – whether with a view to taking part in the scheme themselves, or so they feel better prepared for responding to attendances by legal bloggers or journalists in cases where they are instructed. We know that for most advocates the attendance of a journalist at hearings is a rare event, and often catches people by surprise. Even more so where legal bloggers are concerned. What is the law and procedure? How should you advise your client, and how should you respond to any application these reporters might make?
Whilst we are keen to encourage lawyers to become aware of and involved in the legal blogging pilot, the purpose of the event is wider than that – to inform and advise on what restrictions on publication would apply or how the pilot scheme operates in the event that a legal blogger attends court.
Our aim is to assist advocates to best serve the interests of their clients whether parent, child or local authority. We’d also like to take the opportunity to gather any feedback from participants on the issues that may be emerging from the pilot scheme and their experiences of it or worries about it.
Because we want to facilitate frank discussion and enable participants to ask questions about things they are concerned or unsure about, this event is a lawyer-only event and will not be video recorded.
This event is open to any lawyer conducting advocacy in the family court in England & Wales or who would be eligible to attend court under the legal bloggers pilot. Tickets are free, but donations are invited. Ticket numbers limited. Please book via our Eventbrite booking page.
In November a journalist I know and respect took to social media to air her concerns about the probity of family court process as regards transcripts of hearings. She did so in good faith based upon ‘authoritative’ information she had been given about a tricky topic. Although it has taken me some time to get around to is due to other priorities, her tweets in turn caused a lot of people real worry, and prompted those who already held concerns to chip in – creating at least for a short moment – quite a furore and heightening people’s anxiety about the fairness and transparency of the family court process.
So, regarding my question on whether judges in family courts can alter transcript of court audio of hearings... I have an authoritative answer which hugely worries me:
A family judge can alter the transcript of audio, in certain respects: they can’t alter the overall sense judgment, but can tidy it up, expand on their reasoning and clarify what they said. So *where* is the precise contemporaneous record of what actually happened in court?
In the course of exchanges with a number of us who raised an eyebrow at this, she went on :
I’m in no doubt that the family justice system means well, but that is utterly inadequate as a standard. If a judge is able, unchecked by anything but their oath, to amend their words, no wonder families feel they are being gaslighted by the system. No wonder they want to record.
Oh you know, realising in reading back a transcript that you sounded intemperate, that your reasons wouldn’t stand up, that by replacing a word or two here or there that you might not sound quite so harsh. The little replacements and avoidances that are so easy to do.
That was November. I disagree with Louise’s ‘authoritative answer’ and I told her so at the time. I think it confuses and conflates different parts of the same process, making it look like a judge has more free reign to tinker with a transcript than she actually does.
I also think that the emotive way that Louise went about airing this issue was unhelpful. I think the issue is more nuanced than Louise allowed for and her tweets fed mistrust of the system without properly acknowledging how things work. What was tweeted was neither entirely accurate (in my view) nor a complete and fair representation of the process – and twitter is not a great medium for explaining something a bit complex. That doesn’t mean I think the system is perfect or fool proof, just that I think in this instance more heat than light was generated. Louise and I have both agreed that we would each write at greater length about this and this is my part of that agreement. Louise has seen this post in draft and when she has published her response I will link to it.
Based on the explanations given in the tweets it is entirely understandable that people would be perplexed and worried. I’m very alive (thanks to respectful challenge from engaged outsiders to the system like Louise) of how it looks to litigants. But my respectful challenge to Louise is that people need to understand the context for the bare suggestion that a judge can change his judgment if comment is to be responsible and facilitative of informed debate. The topic arose at the Family Justice Council Annual Debate on Covert Recording, where I spoke, with one audience member complaining of a system where a judge could alter the record of his judgment in a covert way (see here). That individual is not a lone voice. It is important that the processes and practice in this area are explained if people are to have any confidence in what is going on.
No system is impervious to corruption, but the processes in place for challenging and holding judges accountable are actually pretty sensible once you understand how they work. This post is an attempt to explain the process as I understand it so that people can form a view about where the weaknesses may actually lie - and I hope so that they feel somewhat reassured.
As I discovered when I sat down to write this post there is rather a lot to pull together here, and I need to go right back to basics.
(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties - especially the losing party - should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know…whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter…
(4) …the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.
A judgment is the judge’s expressed reasons for making a decision. The decision itself is expressed in the court order (which says what will happen), and it is the order which is appealed. It is essential that there is a reliable official record of the judge’s reasons, both so that an appeal court can assess whether the order is wrong, and in family cases it is also really important that record exists so that the children involved have some record of decisions made concerning them for the future.
All court proceedings these days are now audio recorded (when I first started in practice many were not, particularly magistrates courts where the only record was the often terribly inadequate legal advisor’s handwritten scribble of a note).
The making of a recording is now a part of the Family Procedure rules (FPR 27.9). Rule 27.9 requires a recording to be made of a hearing in open court of proceedings pending in the High Court, and in other proceedings at the Lord Chancellor’s direction. Quaintly, these still refer to an ‘official shorthand note’, but the rule defines shorthand note as including a ‘record of the proceedings made by mechanical means ‘and … the ‘shorthand writer’ as including ‘the person responsible for transcribing the record’. This slightly odd phrasing basically translates as follows : HMCTS (the court staff) are responsible for the official court recording, subject to the direction of the judge.
Most courts now record digitally with court staff logging and downloading the day’s audio recordings onto dvd at the end of the court day, but some still use cassette tapes.
This recording will be made of the whole hearing, including any part where the judge speaks a judgment and any discussion with the judge immediately afterwards. Obviously occasionally recording equipment fails, discs are misfiled or lost, and judges or court staff forget to press record. But generally, there should be a complete record of every hearing and every spoken judgment.
Other than pressing stop and start judges have nothing to do with the process of recording and storage of the official recordings. When a transcript request is made that is dealt with by court staff other than court staff referring an application to a judge for permission where that is needed (The rules say that the court (judge) must give permission before the shorthand note (recording) or the transcript is provided to anyone. There are very limited exceptions which won’t apply in most cases). It will be court staff who will locate the disc and convey it to the transcription company. The disc itself is usually never handled by the judge or the party who has applied for a transcript.
The rules in civil (non family, non crime) proceedings, which are heard in public, are slightly different – for those interested see CPR PD 39A. Paragraph 7.9 of the Court of Appeal (Civil Division) Practice Direction deals with the provision of transcripts for use in the Court of Appeal at public expense.
The parties to a case don’t have the general right to listen to or obtain a copy of the actual recording of a hearing and they are prohibited from making their own unless the judge gives permission (s9 Contempt of Court Act 1981). This is to prevent misuse of recordings. A party can ask for permission to obtain a transcript of the recording (on payment of a fee, which in some circumstances the fee can be reduced or waived). Once a party has a transcript, it is possible in exceptional circumstances to apply to listen to the actual recording, but only where there is ‘cogent evidence that the official transcript may have been wrongly transcribed’ (See the little known Practice Direction: Access to Audio Recordings of Proceedings issued by the Lord Chief Justice on 14 February 2014. This also provides that a reporter may also be given permission to listen to a recording in order to ensure accuracy of their report). These rules apply to recordings of both hearings and of judgments.
Delivery of a judgment
There are various mechanisms for handing down (delivering) a judgment :
Sometimes a judge will deliver her judgment straight after the parties or lawyers have finished their submissions (known as an extempore judgment), but more often they will go away and think about their decision, make some notes and then deliver the judgment later that day or on another date, depending on the complexity of the material they have to think about and cover in their judgment. This is known as a reserved judgment.
A judge may deliver a judgment orally (by speaking it aloud in court). An oral judgment may or may not be reduced to writing at some stage - it is not automatic. If the judgment is needed for a particular purpose such as distribution to agencies working with a child, for life story work, for publication or reporting in law reports, or for appeal - the written record of it will either be produced by means ordering a transcript to be prepared from the audio recording which is then converted by the judge to the approved (official) judgment, or by the advocates being asked to type up and agree their notes of what was said for approval by the judge (the latter usually only for shorter judgments or where there is some urgency – and usually only if the parties are represented as it is part of an advocate’s job to take a note of judgment unless the judge has told them that a written copy or transcript will be provided).
If the court has ordered a transcript of the oral judgment that transcript will be checked and approved by the judge before it becomes an approved judgment and is distributed.
The practice of preparing a judgment from a transcript or from advocates notes is expressed in the Family Procedure Rules via rule 29.11, which deals with the drawing up of judgments in family court cases. It says that the court will be responsible for this unless it makes some other order. The court can say that a judgment drawn up by a party must be checked by the court before it is sealed. Either way the court is in control of the production of its own judgment.
If the judge does not direct a transcript (either at the joint expense of the parties or at public expense) then any party who seeks a copy either for an appeal or for their records will need to apply and pay a fee unless they have legal aid or qualify for an exemption (See here).
A judge may prepare a judgment in writing and circulate it on paper at the time the judgment is formally handed down in court usually without reading it out in full. Occasionally a judge will already have prepared their judgment in writing but will read it aloud anyway.
If the judgment has been reserved the judge may circulate a draft for corrections to lawyers in advance of the finalized version being handed down (in which case there are strict confidentiality rules about this draft judgment until it is finalized). This process of checking with advocates that there are no obvious errors may result in some amendments before the draft is finalised. This is described in a recent case called Bath v Escott  EWHC 1101 (Ch) (11 May 2017):
… The current practice (in place now for many years) is that a judge who, instead of delivering a judgment orally at the end of the argument, has reserved it to be given at a later date in writing, will circulate a draft of that judgment before handing it down. A judge may alter the draft judgment between circulating it (and receiving comments from the parties) and handing it down.
What happens once the judgment is handed down?
When a judgment is delivered (orally or in writing) the parties lawyers may ask the judge to correct phrases that are confusing or unclear, or minor factual points that have been accidentally misstated. As noted before this sometimes happens in advance of a judgment being formally handed down.
These minor corrections fall under Family Procedure Rule 29.16 (the slip rule) which allows the court to correct an accidental slip or omission in a judgment at any time – either off its own bat or when a party asks it to. This is the power that allows the judge to ‘tidy up’ and ‘clarify’ as per Louise’s tweet. That is perfectly unobjectionable – and to that extent it is quite normal for a transcript of judgment to look slightly different from the words actually spoken on the day.
As explained by HHJ Matthews in Bath v Escott :
the mere fact that the transcript of the judgment, as approved by the judge, and sent to the parties, is in any way different from the reasons actually pronounced by the judge at the time of giving judgment, is not wrong in law. Nor does it in itself even give rise to concern. It is an entirely lawful and proper practice for a judge, on receiving a transcript of what was said at the time in giving judgment, to alter that transcript, not only to correct garbled or incorrect transcriptions, spelling and grammatical mistakes, and even matters of style, but also so that the reasons recorded accurately reflect why the judge made the decision that he or she made, even if they were not then properly or fully articulated.
The starting point is that it is orders of the court that express the courts' decisions. "Judgments", in the popular sense, express only the courts' reasons for those decisions…So it is court orders that are enforced, rather than judgments containing reasons. And appeals to higher courts are appeals against orders that are made by the court, rather than against their reasons. Thus when the judge decides a case, it is the order that is made at the end that is all-important, and the reasons simply explain the basis for the decision. Of course, when an appeal court considers an appeal against an order, it will want to see what the reasons were. But even if the reasons were wrong, the decision might still be right, and in that case the appeal would be dismissed.
Judges rarely perfectly express their reasons when they deliver a judgment. When delivering a long detailed judgment from notes or an extempore judgmentit is inevitable that a judge will stumble or misspeak a word or two, and even though everyone knows what is meant the judgment should be a correct record of the judges reasons rather than her imperfect performance of them. It is important to understand that getting a transcription company to prepare a transcript of an oral judgment is just the raw material from which an approved judgment is prepared – it requires checking for inaccurate transcription and for inaccurate expression of actual reasons by the judge. Use of the phrase ‘transcript of judgment’ to describe an approved judgment probably isn’t helpful because it doesn’t make clear this distinction between a transcript (the raw material) and the judgment (the finished product).
This can be contrasted with a transcript of evidence given or of a hearing – these are what they are, no more than a record of what was actually said – and so they do not need the judge’s approval (but of course transcribers do mishear or mistype sometimes and those corrections can always be made).
If a judge messes up shouldn’t that mistake stand so it can be the basis of an appeal?
Sometimes a judge messes up so badly nothing can save their decision and reasoning from an appeal. But remember it is the decision / order that is appealed – the reasons just help us work out whether the decision was wrong or not. Minor errors probably don’t mean the whole decision is wrong and appealable.
Bath v Escott again :
Moreover, it is clear that, "if a judgment contains what the judge acknowledges is an error when it is pointed out, the judgment should be corrected, unless there is some very good reason for not doing so. A judgment should be an accurate record of the judge's findings and of the reasons for the decision": see Space Airconditioning plc v Guy  EWCA Civ 1664, .
Imperfections in a judgment do not necessarily mean that the judge has not considered a particular point, only that they have forgotten to spell it out in their judgment. If a party or their legal representative thinks something has been left out it is acceptable to ask the judge at the end of her judgment to clarify (indeed this is something that is expected to be done before rushing off to the Court of Appeal on the basis the judge’s reasons aren’t detailed enough).
Bath v Escott :
Lastly, it is also the law that a judge may properly be asked to clarify or amplify the reasons originally given in a judgment even after the delivery of that judgment. Indeed sometimes it may be the duty of counsel to ask the judge to do so, or the judge may consider the matter of his or her own initiative. It is then legitimate for any higher court hearing an appeal from a judgment of the court below to take into account any supplemental judgment or statement in which the judge amplified the reasons given for the main judgment: see Greenwich Millennium Ltd v Essex Services plc  1 WLR 3517, .
Often when asked to clarify whether they have considered a particular point that has been canvassed during the hearing a judge will say ‘Oh yes of course, I have considered that and I should have said so – I will amend my judgment to show that’. Or, I have considered that, but I did not think it was necessary to spell it out. That is often the end of that. Or, they may give a short additional paragraph of reasons to add to their judgment. Sometimes of course a judge will say ‘No. My reasons are adequate and I have nothing to add’.
Sometimes it will be apparent following that process of clarification that the judge hasn’t considered something important, or that they have considered something but got it wrong. Those are the sorts of cases where an application for permission to appeal might then be made to challenge the decision.
When Louise suggests a judge may expand on her reasons I think this is crossed wires. I think what is being described is this part of the process where a judge is asked in the presence of the parties to clarify, or give additional reasons – and they then give them in the presence of the parties (or by email to all advocates). What seemed to worry Louise and many of those responding to her tweets was that this was somehow done secretly. In fact, this is part of the process and is done openly. Once the judge has expanded on their reasons a party (and their lawyer) can decide whether or not they are satisfied with that or if they want to appeal.
Can a Judge change her mind?
In short, yes – at any time until the order is sealed. But a judge should not be ‘capricious’ – they should not do this lightly. Yes, Bath v Escott again :
It is clear law that a judge who gives reasons for a decision may alter those reasons, indeed sometimes even the decision itself, after having made them known to the parties. So, it has long been the practice for judges to revise transcripts taken of their judgments given in court for the purpose of publication. The courts have made clear that, if there are two reports of a decision available, one containing the judgment as revised by the judge, and the other simply giving a transcript as taken down by the shorthand writer, without revision by the judge, then the revised version will be preferred as more authoritative: Fairman v Perpetual Investment Building Society  AC 74, 79.
Turning to judgments which have been formally given or handed down, it has been established for several decades now that even after giving or handing down the judgment a judge is entitled to amend it, and even to change the decision itself if necessary, before the order is actually sealed: see Re L and B (Children)  1 WLR 634, -. It was held by the Supreme Court in that case that the power of the judge to reverse the decision at any time before the order was drawn up and sealed was not limited to exceptional circumstances, and that the overriding objective in the exercise of power was to deal with the case in question justly.
(you can read more about the L and B case on the Suesspicious Minds blog here).
Occasionally, when an omission is pointed out to a judge or they are asked to give better reasons, it will lead a judge to realise they have got something wrong and to change her mind on the main issue in the case.
Very occasionally a judge will change their mind independently of any prompt from the parties.
Where a transcript is ordered the transcript comes in the first instance to the judge, so that he can check the transcriber has accurately transcribed what was said..