This blog post originally appeared in the February 2019 issue,  Fam Law 122.
Whatever you think of the media, journalists’ mistakes couldn’t be more visible. If we get a fact wrong, the evidence is there in black and white. If we write an article that you think is inaccurate, biased or unfair, you can call us out. As demonstrated by the recent Times/Andrew Norfolk furore, criticism of the media can be instant, vociferous and can call into question a journalist’s professionalism, intentions and integrity in a very public way.
For background, Norfolk wrote a piece about sex gang survivor Sammy Woodhouse’s revulsion that her abuser, while in prison, had been informed by Rotherham children’s services of a care case involving their son. Given how comprehensively Woodhouse had been failed by Rotherham children’s services in the past, its action – required by law – was perhaps understandably perceived by Woodhouse as an invitation to her abuser to apply for contact. This prospect was condemned by Louise Haigh MP and seen as ‘perverse’ by the Victims’ Commissioner, quoted in Norfolk’s piece. Whether rightly or wrongly (and after parsing, paragraph by paragraph, The Times article for a Transparency Project blog, I think wrongly), Norfolk’s journalism was dumped on from a very great height. Some commentators were practically spitting.
I describe this simply to make the point that journalists don’t get to hide. And I make absolutely no complaint about this. The media has real influence. At worst, if journalists’ work is done shoddily, in bad faith, or unethically, it can destroy lives. Instead, I draw a comparison.
The poor practice, serious mistakes and sometimes unlawful actions of people working in the family law system are almost always hidden. Thanks to primary legislation, the intention of which was solely to protect children’s privacy, the failings that are both revealed in, and perpetrated by, the family courts, cannot ordinarily be described even by those they most intimately affect. In addition, the institutional secrecy that s 12 of the Administration of Justice Act 1960 both assures and encourages is having desperate results for the very children our family courts are meant to protect.
This secrecy, dressed up as ‘privacy’, is facilitating human rights breaches that ruin lives just as surely as bad journalism can. Because family courts are sequestered from public view, we only glimpse the horror when the occasional judge, sickened at the scale and depth of the illegality she’s presiding over, rips apart the veil of secrecy that usually covers up the misery inflicted by the state on the most vulnerable in society.
Three judgments from last year will always haunt me. All involved Herefordshire children’s services and all were heard by Mr Justice Keehan. I read the latter two back to back on a train home from London and they brought me to tears. In the first, Herefordshire Council v AB EWFC 10,  2 FLR 784 – referred to in my last column in November  Fam Law 1375 – two boys were unlawfully kept in s 20 accommodation for eight and nine years respectively. For one boy, that was the whole of his life. The older boy’s mother withdrew her consent but was unlawfully overruled by Herefordshire’s then assistant director. The other mother, a 14-year-old child when her baby was born, was almost certainly not competent to consent to s 20 accommodation in the first place.
In the second case, BT and GT (Children: twins – adoption)  EWFC 76, [Forthcoming], a particular low point in a grotesque accumulation of failures, was the decision of a Herefordshire social work manager to split up twins who had been placed together for adoption – against a court order and without bothering to document the decision in any way. The fait accompli that faced the agonised judge when this catastrophe came to light gave him little option but to order the continuation of the separate placements, thus extinguishing for ever the twins’ relationship in law. The extensive breaches of the twins’ and their adopters’ human rights has cost the public purse £55,000 in damages – a sum I suspect is very substantially less than the final legal bill for the court case. The human misery caused is incalculable.
In the third case, A and B (Care orders and placement orders – failures)  EWFC 72, [Forthcoming], ‘wholesale failures’ in the care planning for two sisters in foster care was described by Keehan J as ‘appalling’ and ‘woeful’: Herefordshire’s lack of concern for one sister and her newborn baby rendered her homeless, while the mother was still a child and supposedly in the local authority’s ‘care’. The independent reviewing officer service failed completely in its statutory responsibilities to both sisters, and Herefordshire’s head of safeguarding failed to challenge the council’s assistant director on how the girls’ situation was being managed. That assistant director has since left.
Looking at his extensive list of judgments, Keehan clearly understands the need for the public to know what is being done in their name. But plenty of judges don’t. In some areas, nothing is published at all despite the immediate past President’s transparency guidance. In whole swathes of the jurisdiction, we don’t even get the barest glimpse of the mistakes, poor practice and presumably the human rights breaches the state inflicts on children and families. If the new President’s doubtless well-intentioned but, in my view, regressive guidance on anonymisation is followed by judges who do publish, we will in future have even less idea of which councils are, like Herefordshire, failing the most vulnerable children from top to bottom of their children’s services departments.
Moving on to lawyers’ and judges’ failings that nobody usually gets to see. In October 2018, I drove two hours to a family court to support a freelance colleague who wished to apply for reporting restrictions to be lifted in an important case. I emerged from court that day furious at the casual lack of regard displayed by a designated family judge – sitting as a high court judge – to freedom of expression, and to the law that is meant to protect it. As some readers will know, as a result of what happened in court that day, I am now appealing the judge’s decision to impose reporting restrictions on information already deliberately placed in the public domain by three Appeal Court judges. (Because of a weak case by the local authority and a shoddy decision by the original judge, the Appeal Court had remitted an adoption application back for a rehearing, which is why we were in court that day)
In that courtroom that morning, I watched, aghast, as three experienced barristers asserted various vague worries that certain characteristics would identify the family involved. None offered any evidence as to a mechanism by which identification might realistically take place, nor what harm would occur to a young child and a young baby if their identities were to become known. That’s nowhere near enough in law to restrict someone’s freedom of speech.
This lack of legal knowledge among family lawyers as to what’s required for a judge to undertake the required balancing exercise between Art 8 and Art 10 rights is, in my direct experience, not unique. In a previous court case I attended where Gloucestershire County Council contested being identified in press reporting, the designated family judge Stephen Wildblood QC deplored the fact that ‘there was no mention at all of Arts 6, 8 or 10 of the European Convention on Human Rights or any of the relevant case law’ by any of the barristers in court. He sent them off, ordering a new hearing, by which time he hoped that they’d have learned the law.
But judges aren’t all so keen to ensure the law is followed. Back to the case in October 2018. To the consternation of the three journalists in court – the BBC was also present – the judge presiding didn’t bother with anything so fancy as a balancing exercise between Art 8 and Art 10. He didn’t apply or consider existing case law. I was clutching a highlighted print-out of Re J but there really wasn’t an opportunity to stand up and argue its points. He didn’t give any reasons for not allowing the media to report facts already in the public domain and the reporting restriction order he made wasn’t time-limited. It shouldn’t be that I know the law better than three experienced barristers and a DFJ sitting as high court judge. But it seems that this is where we are.
At the end of his order, giving me leave to appeal, Peter Jackson’s assessment was that: ‘There are compelling reasons for the appeal to be heard.’ But it’s crucial to remember that I am only able to attempt this appeal against what I believe are unlawful reporting restrictions because I have pro-bono support from human rights barrister Paul Bowen QC and family barrister Sarah Phillimore, plus a Twitter following that has fabulously stumped up – twice – for a crowdfunder to meet the costs. To date these are approaching £2,000, which, of course, most people could not find. Meanwhile, I am spending enormous amounts of time on appeal admin, my printer is gasping, I am buying paper and ring binders in bulk, and am on increasingly friendly terms with the local postmistress whose salary the postage on this case is paying. Also, because ordinarily I may not speak a word of what goes on in a family court, had I not been given leave to appeal, I wouldn’t be able to tell you any of this. I’m relying on the grounds set out in the permission to appeal order which I am allowed to publish.
And so, if this – at the very least appealable – reporting restriction order had been made in a different family court, with nobody having the means to challenge it, the public would never have the chance to understand how a young child had very nearly, and wrongly, lost her relationship with her mother. Scrutiny, leading to better accountability for decisions that change people’s lives forever and sometimes destroy them, is why I fight for more openness in our family court system.
But there is another reason too, which is not often acknowledged. Closed systems become complacent. When, literally, nobody can speak of what you do, and nobody can see the way you operate, you can never be meaningfully challenged. Your professional world cannot cross-fertilise with other people’s knowledge, ideas, or best practice. This leads to the kind of procedural laziness I have just described, to the extreme distresses visited upon children and families in Herefordshire, to lawyers who don’t particularly consider as important their duty to uphold everyone’s human rights or the overall good of society that those human rights promote – and to judges who think it is unremarkable to make orders restricting human rights without going through a lawful process to inform that decision.
A final thought. A criminal barrister of many years’ experience got in touch with me a couple of months ago after reading a comment piece I wrote saying that the misuse of s 20 amounted to state kidnap. He had recently been allowed into a family court hearing alongside his former partner, he explained, to offer her support (he was not a party to the case, which involved her child). He told me that he watched a high court judge preside over an abuse of process that would never have been contemplated in a criminal court. I asked him why not. He said, simply: ‘Because criminal courts are open. Because people can walk in. Because even if it’s not reported, we know it could be.’
A response to this piece by The Transparency Project will be published in the March issue of Family Law.