Greater Transparency in Children Proceedings: A Note of Caution ~ FAMILY LAW WEEK, Tom Wilson, pupil barrister, 1 Garden Court Family Law Chambers.
Tom Wilson, pupil barrister at 1 Garden Court Family Law Chambers, examines the arguments in favour of greater transparency in the family justice system but sounds a note of caution.
The recent case of Rebecca Minnock has received considerable public attention, not only because of the dramatic nature of the mother’s actions, but also because His Honour Judge Wildblood QC specifically enlisted the help of the Press to locate Ms Minnock and her son Ethan. After she presented herself to the authorities, HHJ Wildblood delivered further judgments in public, including one dated 15 June 2015, in which he said:
‘I would wish to pay an immense tribute to the press for the way that they have reported this case. Journalists have a difficult but important job to do as the eyes and ears of our society and that job comes with the demands for near instantaneous reporting in the modern electronic world. It has been a privilege and very rewarding for me to witness how swift, balanced and informed that reporting has been. The press organisation has been instrumental in securing the return of Ethan. Thank you.’
Proponents of greater transparency in the family justice system will point to this episode as illustrative of the important role that the Press can play in family proceedings and the need to promote open justice. Chief among proponents of greater transparency is the President of the Family Division who, on 17 August 2014, released a consultation proposing significant reform to reach this goal. This article examines the arguments in favour of reform and sounds a note of caution to those pushing for greater transparency in the family justice system.
The argument for reform
In recent years, there has been a growing consensus that the law should be reformed to ensure greater transparency in proceedings concerning the welfare of children. Arguments in favour of reform tend to centre on a simple paradox: it is those attributes of the family justice system that may justify stringent restrictions on public access that also give rise to a compelling, legitimate and irrefutable public interest in its effective operation. For example, in Re J (A Child)  EWHC 2694, the President stated that:
‘…with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make.’
This sentiment is equally applicable, perhaps to a slightly lesser extent, in relation to private law proceedings, where a court may make draconian orders prohibiting contact or transferring residence altogether.
The President has repeatedly emphasised the need to “open up” the family courts in order to protect against miscarriages of justice and promote public understanding of the family justice system. In Re B (A Child)  EWHC 411, for example, Munby J (as he then was) stated:
‘…we must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.’1
The President further stated, in his first ‘View from Chambers’, that:
‘I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’2
Similar sentiments were echoed by the former occupier of the office. Writing extra-judicially, Sir Nicholas Wall stated that:
‘…the fact that the court sits in private enables decisions to be taken without media scrutiny – thus social workers, local authorities and expert witnesses amongst others – indeed, anyone occupying public office, are unaccountable to the media, and thus to the public.’3
The justification for privacy – A need for caution
The traditional justification for excluding transparency from children proceedings is best espoused by Viscount Haldane in Scott v Scott AC 417. In such proceedings, the court ‘is not sitting merely to decide a contested question’, but is exercising its jurisdiction ‘in the interest of those whose affairs are in his charge’. In other words:
‘In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction.’4
While the language employed by Viscount Haldane is noticeably outmoded, the sentiment remains relevant. In proceedings concerning children, ‘the affairs are truly private affairs; the transactions are transactions truly intra familiam‘5. For the child, information surrounding such proceedings will inevitably be intimate, and relate inextricably to their emotional and psychological development. As Dr Sturge notes, there is a very real public interest in protecting children from the inevitable trauma of knowing that their details are “out there“6.
In Re C (A Child)  EWCA Civ 500, McFarlane LJ suggested that this extends beyond the child, and includes the psychological impact to a parent:
‘Even though the reader may not be able to identify the father from the anonymised version, the father would know that his personal information was out there and to that extent Article 8 does not lead as night follows day to a decision as to publication.’7
The force of this argument can be gleaned from the important research of Dr Julia Brophy. During a 2010 study – The views of children and young people regarding media access to family courts – Dr Brophy surveyed more than 50 children involved in family proceedings and concluded that:
‘Children fear ‘exposure’: they are afraid that personal, painful and humiliating information will ‘get out’ and they will be embarrassed, ashamed and bullied at school, in neighbourhoods and communities.’8
Dr Brophy was commissioned by NYAS and the ALC to conduct further research in response to the President’s Practice Guidance on transparency (“the 2014 study”) . Again, the children interviewed were adamant in their opinions:
‘They argue the family court is not a public court for good reason, that they have rights to privacy and dignity and that this move represents a failure of Parliament and the family justice system to consider their views, needs, experiences and long term welfare.’9
When asked to discuss the impact of publicity on a child subject to family proceedings, those interviewed by Dr Brophy were equally clear:
‘Young people were unanimous about how a young person might feel, reading about their case in a newspaper; even if the child or young person’s name did not appear in the story, they would be deeply affected. They described feelings of anger, sadness and depression, embarrassment, shame, guilt, and humiliation.’10
One such example is the response of a 17-year old girl who had been through care proceedings. She stated:
‘When I read things about why I was in care I felt a lot of self-blame and guilt…it’s hard to describe…I think across the board you may not have known the [full] detail of what your parents did to you, later when you read about it, you think: “it’s my fault” – even though it’s not.’11
Dr Brophy’s study also concluded that ‘children and young people said that the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will “cherry pick” bits of information’.12 This belief is not confined to children. His Honour Judge Bellamy has expressed similar concern, both judicially and extra-judicially. In Re K (A Child: Wardship: Publicity)  EWHC 2684 (Fam), HHJ Bellamy stated that ‘there continues to be a tendency for journalists to publish reports about cases based only on the invariably tendentious accounts given to them by aggrieved parties’.13
HHJ Bellamy cited such an example in Re L (A Child: Media Reporting)  EWHC B8. As noted in his judgment, the journalist Christopher Booker published two articles criticising the actions of the court and local authority. In these articles, Mr Booker suggested that ‘faint bruising’ to the child’s arm led to ‘over-zealous and unjustified actions of social workers’ who removed the child from the parents’ care. In fact, it was the child’s ‘floppy arm’, resulting from ‘a spiral fracture of his left humerus’ and six ‘metaphyseal fractures’, that led to the removal. Some may argue that greater transparency would have avoided such inaccuracy. However, as HHJ Bellamy made clear in his judgment, despite Mr Booker being entitled as an accredited member of the press to attend the fact-finding hearing and the handing down of judgment, he did not do so.14 Mr Booker appears to have adopted the same approach to the recent case of Rebecca Minnock, as explained by the Transparency Project. Arguably, it is such journalism which warrants the restrictive nature of the current law.
Nevertheless, many argue that freedom of the Press necessarily affords a degree of latitude to journalists to report stories in a particular manner. The European Court of Human Rights has consistently reiterated that ‘journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation’15 and this principle consistently finds itself embodied in English family law. For example, in 1975, Latey J stated that freedom of speech ‘means freedom not only for the statements of opinion of which we approve, but also for those of which we most heartily disapprove’.16 In 1994, Hoffmann LJ stated that:
‘Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest…Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which “right-thinking people” regard as dangerous or irresponsible.’17
More recently, Munby P reiterated that:
‘The publicist…may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving.’18
However, grand statements of principle are insufficient to justify the potential risk to a child’s welfare posed by irresponsible journalism. Cases such as Re K and Re L, outlined above, demonstrate this. Similarly, in Re H (Freeing Orders: Publicity)  EWCA Civ 1325, it was widely publicised that that children were removed from their parents’ care on the basis of the parents’ low intelligence. In fact, one child had already suffered significant harm as a result of the parents’ inability to provide adequate parenting, and there was a risk of the same occurring to the sibling. The children involved in such cases will inevitably grow up with a chequered picture of their history. It is therefore clear that the mantra of freedom of expression and public interest cannot be viewed in isolation. As HHJ Bellamy stated (in a paper to the Association of Lawyers for Children):
‘…it is the responsibility of the senior judiciary to articulate clearly the issues of high principle. But when it comes to the debate about opening up the Family Courts, we should not allow high principle to blind us to the actuality of how Press freedom is exercised and to the consequent risks for children and families. Put shortly, we should not confuse ideals and expectations with reality and experience.’19
Unfortunately, reality and experience suggest that the press cannot always be relied upon to behave in an appropriate way. Some may argue that, should a journalist overstep the bounds of appropriateness, they may be subject to defamation proceedings or even criminal sanction. However, such remedies are inevitably after-the-event and, in the internet age where social media is ubiquitous, are inadequate to prevent the damage that may be done by publicising the intimate details of family cases.
What of anonymity?
A logical response to many of the above concerns is to ensure a rigorous regime of anonymity. Since the President’s Practice Guidance, a far greater number of judgments have been published in anonymised form. Undoubtedly, this is a positive move, benefitting not only those within the profession but also those seeking to improve the public’s understanding of family proceedings. This is, however, not without issue. A significant risk comes from ‘jigsaw identification’. This is the process whereby, despite attempts to anonymise a judgment, the child or family involved are identifiable by piecing together details of the case that are in the public domain. Again, Dr Brophy’s research has concluded that this is a very real concern for children:
‘Details of the area where a family live, the location of the court, the school attended, ethnic and religious details, harm children may have suffered in the care of a parent, health problems and problems at school and conditions in the home from which they were removed were all details which young people said could lead to the public identification of a child.’20
Dr Brophy quotes one of the interviewees, a 16-year-old girl who had been through the family justice system:
‘…for example from an area [detail] someone will find a way of identifying [the family] people find ways…the media always try and find a way to expose something, if that happens – not just the media but others who pose a risk to children and vulnerable children in particular…they find a way of identifying a child who may be vulnerable to inappropriate attention.’
This is clearly a credible concern, and one that is shared in some corners of the judiciary. In Z County Council v TS  EWHC 1773 (Fam), ITV Wales applied for the relaxation of reporting restrictions surrounding care proceedings in order that it could broadcast a documentary revealing the mother’s identity. Hedley J refused the application on the basis that the child ‘lives in a rural community where, because of the comparatively unusual nature of his disability, he is more likely to be identifiable than if he lived in a massive conurbation’. As a result, the court refused the disclosure of ‘any person that not only would identify…[the child]…but might reasonably in this case lead to his identification’.21
Moreover, a recent appeal illustrates the practical difficulties involved with anonymising judgments. In Re C (A Child) (2015]) (referred to above), the mother sought permission for the judgment to be published and her representatives prepared a heavily anonymised version of the judgment in which initials bearing no resemblance to the parties’ names were attributed to them and in which both the town involved and the father’s nationality were changed. Nevertheless, McFarlane LJ noted that:
‘Despite the great deal of care that was taken by those conducting the anonymisation process, it is however of note that the process was not foolproof, in that at paragraph 9 of the judgment as currently anonymised the boy’s first name appears in full.’22
As McFarlane LJ concluded, ‘no system is entirely watertight and it seems to me that the judge was entitled to have regard to that factor.’23
None of the above is intended to suggest that reform is not needed or that greater transparency is inappropriate. Very few would argue that the law as it stands is without the need for reform. Arguments made by those in favour of transparency are powerful ones, and the importance of freedom of expression and open justice cannot be underestimated. However, before any further reform is contemplated, the President is urged to consider the very real concerns raised by the children interviewed during Dr Brophy’s studies. In a jurisdiction based exclusively on promoting the welfare of children, we should be concerned less with ensuring that the general public have a greater knowledge of how the family justice system operates, and more with ensuring that the welfare of the most vulnerable children is protected in an age of instant communication and social media.
2.  Fam Law 548, 549.
3.  Fam Law 1463.
4. At 437.
6. Dr Claire Sturge, ‘Transparency in Family Proceedings’  Fam Law 409.
8. Para 10.7 of the 2010 study.
9. p.53 of the 2014 study.
10. p.32 of the 2014 study.
11. p.32 of the 2014 study.
12. Para 10.7 of the 2010 study.
15. Bergens Tidende v Norway (2001) 31 EHRR 16, .
16. Re X (A Minor)  2 WLR 335.
17. R. v Central Independent Television Plc  3 W.L.R. 20.
18. Re J (A Child)  EWHC 2694 (Fam).
21. ibid, ; .