Transparency

Transparency

What can I talk about? Who can I talk to?

‘I am determined to take steps to improve access to and reporting of family proceedings. 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.’

Sir James Munby, President of the Family Division

funnel

The issues of transparency and openness in the family courts have provoked much debate. The need for family courts to be ‘private’ to prevent intimate details of family life being published is criticised by many as simply ‘secrecy’ which prevents the public from knowing what is going on. The trend is towards greater openness to reflect the public’s legitimate interest in the workings of the family court but there are still quite significant limitations on what you can and cannot say about care proceedings and who can come into court.

This post will cover

  • A summary of the current position
  • The developing history of principles about transparency
  • Statute law and rules relating to transparency
  • Case law and guidance
  • Other issues
    • journalists in court
    • recording court proceedings
    • participating in research.

 

Summary of the current position

The general rule is that you can’t talk about or publish information about care proceedings. This would include publishing on social media, such as Facebook etc. This is due to worries about children being identified and details about their family circumstances becoming widely known. Children do not get a choice about whether or not they are part of care proceedings so it is felt to be very unfair to publicise circumstances that they might find very embarrassing or shameful.

This is a principle of longstanding. See Scott v Scott [1913] AC 417 and the comments of Lord Shaw of Dunfermline at p 483:

The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.

Generally only people who are parties (directly involved) in the proceedings can come into court. Often courts will be sympathetic to requests that a friend or family member can sit in court to provide moral support, but this is not always permitted. Journalists may be able to come into court but there are serious restrictions as to what they are allowed to report.

16th January 2014, the President of the Family Division published  Practice Guidance relating to transparency in the Family Courts. The purpose is to improve public understanding of the court process and confidence in the court system by increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).

However, this guidance does not have the same status as a Practice Direction – see paragraph Re C (Publication of Judgment) [2015] EWCA Civ 500.

For a useful summary and discussion of where we are following the case of re J see this article by Dr Julie Doughty of Cardiff University. She quotes the position as set out by suesspcious minds:

‘…a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.’

We will examine this position in more detail below.

 

Historical development of the current complicated position

The first thing to note is that this is a complicated area of law. Sir James Munby wrote in 2010 ‘Lost opportunities: law reform and transparency in the family courts’ [2010] CFLQ 273.

We are here in an area regulated in part by statute law, in part by the common law and in part by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The statute law is a mosaic of ill-fitting pieces without any discernible overall objective. And the judge-made law is complex. There is a rich and subtle jurisprudence expounding the meaning and effect of section 12 of the 1960 Act, another rich and subtle jurisprudence explaining the circumstances in which the court can or should either relax or increase the automatic restrictions, and another rich and subtle jurisprudence identifying the various Convention interests which, typically, are engaged in such cases and explaining how they are to be balanced. Now the jurisprudence may be rich and subtle, but it is not easy either to access or to understand unless one happens to be steeped in it – which even most family lawyers are not – or one has the time and the inclination to undertake what may be quite time- consuming research.

The consequences are hardly acceptable. There are few such well-tilled areas of the law which have been so bedevilled by myths, misunderstandings and, indeed, plain errors on the part of lawyers.

We will here attempt to unpick the various strands of statute and case law which govern this important issue. 

 

What does Parliament say?

The High Court has the power to reduce or increase any statutory restrictions on publication, by using the inherent jurisdiction. This will be discussed in more detail below. See further Practice Direction 12D. 

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish any material which is intended or likely to identify any child as being involved in any proceedings under the Children Act 1989 or the Adoption Act 2002, including the child’s address or school.

A breach of section 97(2) could mean you have committed a criminal offence, but you will have a defence under section 97(3) if you didn’t know or suspect that the published material was intended or likely to identify the child.

The court can dispense with the requirements of section 97(2) if they think the child’s welfare requires it. For example, if a child goes missing and publicity could help find him. For an interesting example of when this was done see discussion around the Minnock case in June 2015.

‘Publish’ is defined in section 97(5) and includes in a programme as defined by the Broadcasting Act 1990.  ‘Material’ covers any picture or representation. Section 97 stops applying once the proceedings have ended.

 

Section 12 Administration of Justice Act 1960.

This refers to proceedings in private, such as family proceedings, and makes it a contempt of court to publish information relating to such proceedings.

Something is ‘published’ whenever it would be considered published according to the law of defamation UNLESS someone is communicating information to a professional in order to protect a child. Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

Under section 12 you can’t publish accounts of what went on in front of the judge sitting in private, documents filed in the proceedings, including extracts, quotations or summaries of such documents. There is no time limit so it operates even after the proceedings finish.

The identity of witnesses in care proceeedings is not protected by section 12 and if any witness does want to remain anonymous they will have to convince the court that their need for anonymity was more important than the need for openness.

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J (as he then was) discussed the ambit of section 12 and said:

At one time it was believed that the mere publication of information about a ward of court was contempt of court. Although that heresy was exploded by the Court of Appeal in In re F …the belief seems to have lingered on well into the 1980s … Let it be said clearly, once and for all: the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court … At one time, and even after the Court of Appeal’s decision in In re F, there was widespread misunderstanding as to the ambit of section 12 and, in particular, as to the meaning of the critical words “information relating to proceedings before [the] court sitting in private”.

For long it was thought that the effect of section 12 was to prevent publication of any information whatever about wardship proceedings. Again it was only in the late 1980s that a true understanding of the limited ambit of section 12 emerged … It suffices for present purposes to say that, in essence, what section 12 protects is the privacy and confidentiality: (i) of the documents on the court file; and (ii) of what has gone on in front of the judge in his courtroom. … In contrast, section 12 does not operate to prevent publication of the fact that wardship proceedings are on foot, nor does it prevent identification of the parties or even of the ward himself. It does not prevent reporting of the comings and goings of the parties and witnesses, nor of incidents taking place outside the court or indeed within the precincts of the court but outside the room in which the judge is conducting the proceedings. Nor does section 12 prevent public identification and at least some discussion of the issues in the wardship proceedings.

For an example of how consideration of section 12 can cause problems for even the lawyers, see this discussion from the Transparency Project.

 

Section 45 of the Youth Justice and Criminal Evidence Act 1999

This replaced section 39 of the Children and Young Persons Act 1933 in all criminal courts except youth courts. It gives the court the power to prevent any newspaper revealing details that might identify a child or publishing a picture of the child in court proceedings.

Section 62 of the Children Act 2004

It is no longer a criminal offence for a party to family proceedings involving children to disclose orders to other individuals or bodies, so long as disclosure is not made to the general public or any section of the general public, or to the media.

Nor is it a contempt of court to disclose information where there are rules allowing people to communicate some information in certain circumstances.

See Rule 12.73 of the Family Procedure Rules 2010

You won’t be in contempt of court if you discuss information about care proceedings so long as you are talking to a person named on this list.

  • a party to the proceedings;
  • the legal representative of a party;
  • a professional legal adviser;
  • Cafcass
  • the Legal Services Commission;
  • an expert whose instruction by a party has been authorised by the court for the purposes of the proceedings;
  • a professional acting in furtherance of the protection of children;
  • an independent reviewing officer appointed in respect of a child who is, or has been, subject to proceedings to which this rule applies;

The court can also give permission for you to disclose to someone not on this list. See Rule 12.73 (1)(b). However, Any relaxation of the prohibition on publication must ‘be clear and specific. It cannot amount to a blank cheque’ (see para 42 K (A child: Wardship: Publicity) (no 2) [2013] EWHC 3748.

See also Practice Direction 12 G which at paragraph 2.1 provides a table of people who can share information for a particular purpose, for example a party to care proceedings may disclose whole or part of a judgment for the purposes of a criminal investigation.

See further Rule 12.75. If it is ‘necessary’ to share information about the proceedings to enable a party to get advice, support or assistance in the conduct of proceedings or to attend mediation or to make a complaint then you can do that – but if you are talking to for example a family member to get support, that family member must not pass on the  information to anyone else. The test of ‘necessary’ is a high one.

What do the courts say?

The general trend is towards less restriction in what can be publicized. This is a recognition of the inevitable – the ease of access to the Internet means that information can be published by anyone across the world by the click of a button.

See Practice Direction 12D.

It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child’s protection of which the following are the most common –
(a) orders to restrain publicity;
(b) orders to prevent an undesirable association;
(c) orders relating to medical treatment;
(d) orders to protect abducted children, or children where the case has another substantial foreign element; and
(e) orders for the return of children to and from another state.

 

Guidance and case law

The President of the Family Division produced guidance in 2014 as to  when judgments in family cases should be published. This guidance was considered in the case of C (A Child) in 2015.

But what about wider information about the case, including the identities of the people involved? Usually any judgment delivered by the court will contain a ‘rubric’; which is an introductory paragraph before the main judgment, which explains what you are allowed to do with the information within it.

A standard rubric will say something like –  the Judge allows this judgment to be reported, provided that you don’t identify the parents or children. This rubric has the effect of ‘cancelling out’ section 12 of the AJA and means anyone who publishes the judgment can’t be convicted of contempt of court if they obey the judge’s instructions.

The legal effect of this rubric is uncertain. This was considered by Munby J in Re B, X Council v B and Others [2008] 1 FLR 482. At para [12] he said:

Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.

So what happens if you want to identify yourself? Or discuss the case more widely?

You will need to get a court order. Otherwise, if you do something contrary to any rubric to the order or any statutory provision, you could be in contempt of court.

The High Court has the power, due to section 6 of the Human Rights Act 1998 and its own ‘inherent jurisdiction’ to make orders outside of the statutory provisions about people coming into court or being able to talk about what happens in court. See also rule 12.73 FPR discussed above.

If the High Court wants to make such an order, the court must examine any competing rights under Articles 8 and 10 of the European Convention and undertake the ‘balancing exercise’ as set out in Re S (A Child) (Indentification: Restrictions on publication) [2004] UKHL 47

The case of Re Webster: Norfolk County Council v Webster and Ors [2007] 1 FLR 1146 identified 4 important factors for the court when it considered whether or not to allow information about a case to be publicised:

  • The case was alleged to involve a miscarriage of justice
  • The parents wanted publicity
  • The case had already been extensively publicized
  • There was a need for the full facts to emerge in a way which would improve public confidence in the judicial system.

A more recent case is that of Re J [2013] where the Local Authority wanted an order ‘contra mundum’ (against everyone in the world), preventing the identification of a child in care proceedings, to last until the child was 18.

This case involved J, one of the parents’ four children (all of whom went on to be adopted). J’s father posted on the internet various pictures and film of J being removed from the parents’ care, describing what he had published in these kind of terms:

“Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall … You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this.

Here is an interesting article about this case, in particular the ironic consequence that in attempting to restrain the father from posting his videos on the internet, the LA ensured that he received a great deal of publicity and probably more people saw the videos than would have done if they had not applied for the order.

 

The four propositions and the ‘ultimate balancing act’.

In Re K (A Child: Wardship: Publicity) [2013], the adopted parents of a girl known as ‘Katie’ (not her real name) sought a declaration that it would not be a contempt of court if they published information in the media about certain information relating to their parenting of Katie, who suffered from Reactive Attachment Disorder, of working with the Coventry City Council and the family justice system in general. One of the most important aspects of this case was Katie’s urgent need for therapy and the Judge had been critical of the local authority for not providing it.

HHJ Bellamy set out at paragraphs 54 -63 the approach the court should take when deciding to relax the statutory provisions which prohibit publication.

He identified four propositions

  • neither Article 8 nor Article 10 has precedence over the other
  • where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.
  • the justification for interfering with or restricting each right must be taken into account.
  • Finally, the proportionality test must be applied to each. This is ‘the ultimate balancing test’.

He considered the decision of the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11 where the position was summarised in this way:

[58] … each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in the terms of proportionality is carried out.

Although neither right takes automatic precedent over the other, it is worth remembering that they are different in quality. Article 8 rights are by their nature of ‘crucial importance to a few,’ while Article 10 rights are typically ‘of general importance to many’. Thus the court must be on guard not to undervalue and erode the rights of the many when faced with objections from a few. See further A (A Minor) [2011] EWHC 1764.

 

The disinfectant power of forensic sunlight

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policemanLouis D Brandeis, US Supreme Court Justice

The President of the Family Division said this in re J [2013] :

26. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

27. One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling […]

28. I have said this many times in the past but it must never be forgotten 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. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.

29. This takes me on to the next point. We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable. […] 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.

The Judge went on to quote approvingly the phrase ‘the disinfectant power of forensic sunlight’ concluding that the answer to the growing distrust of the family law system in certain quarters, could only be met by increased openness and transparency.

The workings of the family justice system could be subject to legitimate public debate and even if some of the things said in that debate were offensive or mistaken, it was not for the law to intervene unless what was said was defamatory or contrary to criminal law. The only justification for restraining the parents from publishing material was if it would identify the child.

 

The Judge concluded

82. Assessing these three factors together, there is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

Guidance from Local Courts

HHJ Bellamy’s guidance to the Leicester and Leicestershire Family Justice Board in July 2015 looks at the current state of the law and sets out general guidance for how the courts should deal with the issue of transparency and publication of judgments:

  1. The decision to give permission for a judgment to be published is a judicial decision. It is a decision that can be appealed. See Re C (Publication of Judgment) [2015] EWCA Civ 500
  2. Whether or not the judgment is one which the Guidance indicates should normally be published, if the judge considers it appropriate to give permission to publish then the parties should be informed at the time the judgment is handed down.
  3. If the judgment has been prepared in anonymised format, the parties are under a duty to draw the court’s attention to any perceived inadequacy in the anonymisation. This is a process which requires careful attention to detail. The court should set a time limit within which any points about the anonymisation of the judgment should be made.
  4. If the judge indicates that she proposes to give permission for the judgment to be published it is open to a party to seek to persuade the court that upon a proper application of the ‘ultimate balancing test’ permission should not be granted.
  5. If advocates need time to martial their arguments with respect to the question of publication they should ask the judge for a short adjournment to enable submissions to be prepared.
  6. Submissions must be focussed on the competing Article 8 and Article 10 rights that are engaged and on the ‘ultimate balancing test’ which the court is required to undertake. It is not sufficient, for example, simply to state that a party does not agree to the judgment being published.
  7. If, having considered the submissions, the judge remains of the opinion that permission to publish that judgment should be granted and the party opposing publication wishes to appeal against that decision then a request should be made to the judge for permission to appeal and for a stay pending the hearing of the appeal.

 

Other issues

Journalists attending court.

See the Family Proceedings Rules 2010, rule 27.11, Practice Direction 27B and C and the President’s Guidance in Relation to Applications Consequent Upon the Attendance of the Media in Family Proceedings.

An ‘accredited media representative’ may attend private hearings in family proceedings but the court may ask them to leave for all or part if any party requests it. The media representatives must be allowed to argue why they should be allowed to stay. But given the limits on what can then be published, this right to attend court does not take the journalist much further forward.

As HHJ Bellamy commented in his guidance  to his local court from July 2015:

Writing in The Times on 28th April 2009, Camilla Cavendish, a leading campaigner for greater transparency in the family courts, made the point that “The door is open, but we desperately need more journalists to pick up a torch and walk through it”. That has not happened. In my experience media attendance in the family courts is rare. In the last six years there has only been one occasion when a duly accredited media representative has been present in my court. I believe that that is the experience of most family judges.

There are a number of reasons for this. These include, in particular, lack of advance notice of the cases coming before the court, lack of the resources needed to be able to send reporters into the family courts on a regular basis, lack of access to court documents, and the fact that the media can report only that limited information the publication of which does not breach the provisions of s.97(2) Children Act 1989 and s.12 Administration of Justice Act 1960.

The fact that the media rarely attends hearings in the family courts does not mean that the media has ceased to be interested in family justice. What it has meant is 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 parents. There are still references in the media to the ‘secret’ Family Court.

 

I have been asked to participate in research and they want to see my court documents?

This is possible if the research has been ‘approved’.  This can be done by the Secretary of State after consultation with the President of the Family Division, approved in writing by the President  or conducted under s83 of the Children Act 1989 or s13 of the Criminal Justice and Courts Services Act 2000.

As a general rule, don’t show your court documents to anyone who claims to be conducting research unless they can show you written proof that this has been approved. It doesn’t matter if these researchers are based abroad.

Thanks to suesspicious minds for this paragraph. 

 

I want to record court proceedings

If you record court proceedings without the court’s permission, this will clearly be a contempt of court and could be very serious, depending on what you go on to do with the recording.

If you want to record interactions with social workers or other professionals outside the hearing then you don’t need their permission and it  is not unlawful in and of itself. Section 36 of the Data Protection Act 1998 states: “Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the data protection principles and the provisions of Parts II and III.”

Bu you need to be aware of the negative impact this could have on the relationship between yourself and the professional, particularly if you do it without warning them..

See further our post on recording interactions between parents and social workers.

 

Reform proposals

On 15th August 2014, the President of the Family Division issued a consultation paper called The Next Steps. The President is inviting comments about how well the current transparency Practice Guidance from January 2014  is working, and whether steps can be taken to provide more information about cases when they are listed in court, without naming the parties.  Views are particularly welcome on:

  • The impact on children and families, both immediate, short term and long term. I have in mind, for example, the risk of a child in later life coming across an anonymised judgment about his background and learning details of it for the first time.
  • The impact on local authorities and other professionals.
  • Any change in the level and quality of news and reporting about the family justice system.

This follows from the President’s ‘12th View’ in June 2014, where he set out that his intention to begin discussion and consultation about hearing some family cases in public.  But there is evidence that this will not be a popular move for the children concerned.

 

Further reading