Tag Archives: Transparency

Happy Families – The conversations we are not having about adoption – Feedback from London Event

 

On Saturday October 28th 2017 we gathered again, this time in London, for the ‘oral installation performance’ about adoption and the problems caused by lack of honest and open conversation about its meaning and consequences.

The main questions Pamela and I hoped to pose were these:

  • Can we make happy families?
  • Can we impose identity on a child?
  • Do we need to ‘rescue’ children or should we be trying to support unhappy families?
  • What is really at the heart of our child protection system and adoption and why aren’t we talking about this?

Again, I was really pleased that the audience seemed keen to talk and the conversation was lively and wide ranging. It was also great to finally meet in person some of those I have been ‘talking’ to on line for some time now. 

I hope that the conversations we started in Bristol on September 23rd and in London on October 28th can carry on elsewhere. If anyone reading this would like us to come and perform in your area, let me or Pamela know!

Themes emerging

A member of the audience recorded the following as those issues which attracted her attention:

  • Is there another side to the issue? The talk seemed to imply that adoption is negative, but if so, what’s the alternative?
  • Who is going to do the research into outcomes? How is it to be funded?
  • Adoption seems to involve ideological judgement and even social engineering, and is used as a solution to problems within the care system generally. Why isn’t there conversation about all the possible consequences, good and bad, short and long-term, for everyone involved?
  • Why isn’t there legal and financial help for, say, the parents of split siblings, to enable a sense of family to persist?
  • Social media has raised the profile and voice of adopters, but again, it is usually the articulate middle classes who benefit. How can this be made more of a level platform?
  • How successful is the assessment process at preparing adopters to be parents?
  • Are support services adequate in the era of austerity, particularly in view of the needs that may arise in adopted children from different backgrounds?
  • What qualifies a parent for serious intervention such as psychotherapy? There is no clinical criteria, and the distribution of these resources seems to depend on how wealthy and/or how vocal you are.
  • Is the problem that research may be carried out but is unheeded by policy makers? If so, is it because of (lack of) money? Or prevailing ideology? Or lack of belief in public discourse by the general public?
  • The UK concept of ‘childhood’ is adult-led, which is behind the times compared to much European thinking. Should the UK widen its perspective?I]
  • Is it worth saying that you can’t prevent the death of every child deemed to be at risk, regardless of any external circumstances? There would and will always be cases like Baby P, leading to knee-jerk reactions by the media, and potentially causing as much harm as good.
  • How do you counteract false narratives that are propagated by sections of the media for political ends?
  • Should there be a set timeline for adoption or not? If yes, what should it be? If no, how do you set parameters?
  • Is there a wider question about the way society undervalues diversity and views disadvantage?
  • How can we stop money being wasted by the government on high-profile, ‘scattergun’ interventions which are often shown to have achieved nothing when they are evaluated by practitioners?
  • How big a problem is trafficking of children? Can we believe the narratives in the media?

Comments from the audience

I have just started my MA in Social Work and this has made me aware of some disturbing elephants in the room and what sort of actions I need to think about supporting.

I found the method of presentation simple, powerful, effective. I thought Your performance Sarah was excellent. It was gripping. I think you didn’t need to try and answer the q’s ( except the first that was framed firmly as a q to you).

It didn’t make me think afresh about adoption as i already do but it was good to be able to ‘come out’ on those views in a public debate. My sense is that there has been a big shift in recent years to voices accepted as credible (rather than othered as disgruntled or extremists – some of course, being actually so) being able to question current adoption policy & practice.

I think you could have done even more to engage w evidence in support of adoption & eg the idea that it was precisely because Jobs was removed & adopted that he developed capacity & opportunity to have such an impact. Tho u said u had no views the choices about what material used & ansa’s given suggested u had strong views that much is broken & dysfunctional, just not on how to achieve change & what good wld like.

Social Workers Speaking Out – What Should they Say?

This is a post from a social worker who wishes to remain anonymous. She discusses her frustration about the constraints on social workers speaking out about who they are and what they do and her particular concerns at the way ‘Social Work Tutor’ recently chose to frame the narrative, in terms of ‘monster parents’. 

Over the last couple of years I have been involved in various real world and online discussions about social workers speaking out, mainly why they don’t as individuals. As a general rule, if you are independent or in academia you can talk about social work, in an LA you can’t without representation or approval from the directorate (and usually under the auspices of the comms team). As far as social networking is concerned, most employment policies are restrictive enough for social workers to be anonymous if they work for an LA. I’ve felt my share of frustration with the barriers to communicating about social work as well as with the voices who claim to represent me at times. There are several aspects to this for me. On a personal level I feel silenced, and in a field active with anti oppressive practice, that feels a bit oppressive. For families who encounter social workers, not knowing about social work limits their understanding of what we do and creates a barrier of fear, barriers can be ameliorated, but it’s a shame there is one there in the first place. More widely it contributes to the air of secrecy that surrounds social work and the family justice system and I would like more transparency.

 

It won’t be a surprise to know that I was therefore interested to the Facebook page of a social worker who has a large “fanbase” (their words) and who also contributes to Community Care. I haven’t read all of the Community Care articles but this is someone with who I agreed completely when they wrote recently about feeling like social worker’s voices have been heard for the first time since Munro. There were almost 20,000 followers on the Facebook page and, from what I read, SWT appeared proud of their high profile. Reading further, some of the posts gave me pause for thought. I really didn’t like the way social work was ramped up, I didn’t like the notions expressed that social workers are heroes, or working on a frontline. I also didn’t like some of the memes, because although they might be funny in another context, they read as being jokes made at the expense of the people we work with. I also strongly objected to a very emotive post about the Ellie Butler case. Others have written very fluently about the case and I don’t intend to repeat that here, I will though tell you why I minded about it so much and thought you might wish to read the original post first. It has now been taken down, this was copied before it was, and screen shots were taken.

 

Social Work Tutor

21 June at 19:38 ·

Ben Butler is the kind of violent monster that Social Workers fight to protect children from on a daily basis…

Ben Butler is a man who used violence, control, intimidation and fear to rule those around him. He has a history of robbery, intimidation, assaults, carrying offensive weapons and domestic violence.

He admitted that he “hoped situations might present themselves where he could engage in violence” and believed that “violence used to help him improve his mood when he was upset”.

When his daughter Ellie was just seven weeks old, she suffered a “triad” of brain and retinal injuries associated with shaken baby syndrome. Ben Butler was convicted of grevious bodily harm and child cruelty, and sentenced to prison as a result.

Using his controlling and dominant personality, he used a legal technicality to quash that conviction then proceeded to engage in a media tour to campaign for the return of Ellie to his care. Supported by the convicted sex offender Max Clifford, Ben Butler did the media rounds and portrayed himself as the doting father who simply wanted to care for his daughter.

He convinced The Sun, he convinced The Daily Mail, he convinced This Morning. Most sadly of all he managed to convince Mrs Justice Hogg who commented of her ‘joy’ at seeing a ‘happy end’ when she returned Ellie to the care of the man who would go on to murder her.

Justice Hogg dismissed his violent past.

Justice Hogg dismissed the doctor who raised concerns about aggression and bullying.

Justice Hogg dismissed the burns Ellie experienced to her head and hand at only seven weeks old.

Justice Hogg dismissed the concerns of the Local Authority who did everything they could to prevent Ellie’s murder and fought all the way to save her from her father.

Justice Hogg dismissed the heart-felt plea from Ellie’s grandfather, who warned her she would have “blood on her hands” if Ben Butler regained custody.

Eleven months later, Ellie was murdered in a fit of violent rage.

This vile creature subjected his six-year old daughter to a fit of murderous rage and then attempted a cover up with his partner and Ellie’s younger sibling; staging a scene so that the sibling would find Ellie’s limp and lifeless body.

Those last eleven months of Ellie’s life must have been hell.

She was blocked from having the support of her local Social Workers.

The independent service brought in stopped engaging seven months before she was killed.

She was living with a man she told her Grandfather she was terrified of.

She was referred to as a c**t by her own father.

Neighbours reported her as being so scared of him she wet herself.

In the weeks before her death she experienced a broken shoulder.

I could go on but even writing these words brings tears to my eyes; I can’t even begin to imagine what it was like for Ellie to be subjected to such a life.

And yet these are the monsters that Social Workers save children from on a daily basis. These are the vile creatures we fight to protect these vulnerable little souls from.

People so dangerous that they will kill their own children.

People so controlling they can convince the media and judges to bend to their will.

People so evil they will attempt to portray death and injury as accidental; using their other children to hide their heinous deeds.

We will keep fighting to save children from harm, just as the unheralded heroes of Sutton tried to do for Ellie.

We will be there for children who have nobody else.

The sad truth is that Ben Butler is not an isolated figure. There are parents like this up and down our country that Social Workers are having to deal with every day.

These are the terrors that we are trying to save the world from.

These are the parents who will tell the media that Social Workers are ‘stealing their children’ at the same time as living with the awful harm they have caused.

These are the monsters that we keep from children’s doors at night.

SWT”

 

So, I minded all that because I am horrified that anyone in my profession can imply that the people we work with on a daily basis are monsters or that Ben Butler is the face of social work. I would always say that most of the people I work with are sad rather than bad, their stories are often ‘there but for the grace of God’ and the Ben Butlers of this world exist but are thankfully few and far between. I minded that a view was being expressed that social workers work daily to save children from monsters, as a child protection social worker I think I’m working with families because they need help to look after their children safely and with the need to ensure those children live elsewhere when that isn’t possible. The rescue narrative which can describe vile creatures and protecting vulnerable little souls is not mine, neither is the battle motif. I am not saving the world from terrors or keeping monsters from anyone’s door. If there really is anyone who could be described as a monster who might be in need of restraint, that’s a job for law enforcement not me.

 

So, then I minded the legal stuff because social workers work within the law. Ben Butler didn’t use a legal technicality to quash his conviction. The court considered evidence and, however terrible anything might now seem, there was no other decision that could be made based on that evidence. It is also wrong to say that Mr Butler convinced a judge, the evidence was used by the judge to do what judges do, make a judgment. This was no act of control or anyone bending anyone else to anyone’s will. It is indeed true that this returned Ellie to the care of the man who murdered her and this is very sad indeed, nobody can think otherwise. The Judge also did not exonerate Ben Butler of all of the issues, she exonerated him of the crime the evidence supported he did not commit, if you read the SCR, the LA seem to have taken this further. I suspect this is not the only time that a judge has been warned they will have blood on their hands, I have no evidence to support this but cries from the public gallery are not unheard of.

 

So why does this matter? It matters because this person is representing social workers, not just in a publication that only social workers read, but also on a public Facebook page and they are crowdsourcing £15k to publish a book that will tell people about social work much more widely. My view is that any narrative including monsters and rescuing children demonizes the people with whom social workers work, and that narrative marginalizes social justice in the context of a time of austerity and savage cuts and with a government in power whose rhetoric about adoption is akin to social engineering. I am not the only social worker who thinks this and I would always want families to know that a large following on Facebook is not representative of any social worker I have encountered in real life or online. In the meantime, having spoken for myself, I am going to have a bit of a rethink about who represents social workers, I’ve been quite critical of BASW at times, but they are doing sterling work at the moment.

 

Transparency, debate and Satanists: A Plea to the Family Courts

I think it is important to challenge people who ‘are wrong on the internet’. Not because I am naive enough to think I will have much of an impact on individuals who are driven by something other than reason and logic. I will continue to crusade in defence of the general principle that evil will triumph if we just sit back and do nothing.

Further, I think challenge is important as many of those who obsessively campaign in aggressive and intimidatory ways on social media appear to rely on official indifference to their activities and the ease with which they can threaten others with apparent impunity.

There is a view often expressed that one should not give ‘the oxygen of publicity’ to such people and that attempting to tackle them is counter-productive. I understand and often agree with that view. But there is a significant subset of these campaigners who should be challenged as they have serious reach and influence. And they will not stop.

The Hampstead Hoaxers have the dubious accolade of being among the nastiest and most persistent of the obsessive conspiracy theorists which are abundant on the internet. If you don’t know what I mean by ‘Hampstead Hoaxers’ – I think you should. I commend the entirety of the Hoaxtead Research web site to your attention, and Anna Raccoon has provided a useful summary here.

In short, in 2014 allegations were made against individuals in Hampstead that they participated in organised satanic ritual abuse involving about 20 children. These children were routinely buggered at school and made to eat babies, who were turned into burgers at the  local MacDonalds. These allegations were obviously insane and found to be so at a fact finding hearing in the High Court. Mrs Justice Pauffley issued injunctions against named individuals to prevent them further publishing their false allegations – in particular to refrain from continuing to publish on line videos of two of the children. As is obvious, such activities were very harmful to the children, given the high probability that a good proportion of the millions who have so far seen the videos were deriving sexual pleasure from them.

Those injunctions were never enforced – apparently on the basis that to cause any further fuss would just encourage the conspirators to keep on going. That may have seemed a reasonable decision at the time. But with hindsight, it was a grave error. The conspirators kept on going.

An attempt was made to bring to book two of the most virulent and prolific campaigners in July by charging them with witness intimidation. That failed as although intimidation was the inevitable by product of their campaigning, this wasn’t sufficient to establish the necessary criminal element of intention. But happily, the Judge made indefinite restraining orders against both, to prevent any further publication of allegations which at the outset of the trial all lawyers accepted were false. Details about the hearing and the astonishing behaviour of their lawyer Aseem Taj can be found at Hoaxtead Research.

News of this seemed to reanimate the Hoaxers on line who popped up on my Twitter timeline to make all kinds of astonishing allegations, including the apparently popular assertion that I (or anyone who challenges them) is actually one of the Satanists masquerading under a false identity.

I can laugh this off. Although it really isn’t funny. And it represents just a tiny fragment of what the residents of Hampstead have had to face for over two years now.  In the face of an apparently indifferent and/or toothless Family Court that cannot or will not see its own injunctions enforced. I appreciate there are enormous difficulties in dealing with those who operate outside the jurisdiction – but many don’t. Many are right here, right now.

This is a personal tragedy for the individuals in Hampstead whose lives have been blighted and whose children’s safety has been compromised. But it is also a more general tragedy – for the robustness of our legal system, and the respect we are encouraged to have for it,

An issue of particular interest to me are the potentially damaging ramifications for the debate over transparency in the family courts. The Transparency Project – of which I am a member – has been commenting with increasing concern about the apparent stalling of the President of the Family Division’s ‘transparency agenda’, first announced in 2014. Apart from an increase in ad hoc publication of judgments from some individual judges, we seem no further forward in 2016. My worry is that this is due to the concentrated resistance to any increased transparency in family proceedings from certain groups of lawyers and social workers.

They fear that children will be the ones to suffer if there is any move to more openness in the way family court hearings are conducted and/or reported. Of course I understand that – it is a real and serious concern. But other jurisdictions are more open in what they will allow to be discussed and publicly available about family cases and we need to think more carefully about how they make it work and what we could be doing.

But it should not be allowed to stifle the debate to the extent that I am afraid it has. Because look what is rushing in to fill the gap we leave by our unwillingness to bring our practice and procedure out into the disinfecting sunlight. Look, and be worried.

We simply cannot go on ignoring these people and pretending this doesn’t matter.

What do children think about opening up the family courts?

There is serious concern that opening up the family courts, for increased media access for example, is going to harm children and is not what they want.

The Children’s Commissioner investigated this issue in 2010 and said:

For our research, we spoke to more than 50 children and young people, and what they said raises a number of serious concerns. The overwhelming view was that reporters should not be allowed into family court proceedings because the hearings address matters that are intensely private. The events discussed are painful, embarrassing and humiliating and the children and young people said their deeply personal details were the business of neither newspapers, nor the general public.

They did not trust the press to get the facts right and felt strongly that articles would be sensationalised. They were worried about being identified and fear being bullied as a result.

It is of great concern that the children and young people said that if a reporter was in court to hear the evidence, they would not speak freely to professionals charged with undertaking assessments. This could seriously impact on a judge’s ability to make difficult and often life changing decisions in the child’s best interests.

You can download the report here.

 

There has been a further report by the ALC and NYAS in 2014 which you can read here.

The children interviewed were not happy with the idea of information about their cases being widely accessed and did not think that was a solution to dealing with criticisms of the family court system.

  • In the context of early discussions young people said they are not always informed about what is happening in their case – before or during proceedings. They said out dated paternalistic approaches by professionals are not in children’s interests: they need honesty and accurate information about processes and decisions about their care and at a time when they can make informed choices.

Further reading

The not-so-secret life of five-year-olds: legal and ethical issues relating to disclosure of information and the depiction of children on broadcast and social media

Marion Oswald, Helen James & Emma Nottingham

Abstract

Widespread concerns around the privacy impact of online technologies have corresponded with the rise of fly-on-the-wall television documentaries and public-by-default social media forums allowing parallel commentary. Although information about children has traditionally been regarded by society, law and regulation as deserving of particular protection, popular documentaries such as Channel 4′s ‘The Secret Life of 4, 5 and 6 year olds’ raise questions as to whether such protections are being deliberately or inadvertently eroded in this technological ‘always-on’ online age. The article first describes the documentary series and the results of an analysis of related Twitter interaction. It considers responses to freedom of information requests sent to the public bodies involved in the series with the aim of establishing the ethical considerations given to the involvement of the children. The paper goes on to explore the privacy law context; the wider child law issues, the position of parents/carers and the impact of broadcast codes. It considers if lessons can be learned from how decisions in the medical context have dealt with issues of best interests in decision-making and in disclosure of information concerning the child. The paper concludes that additional legal and ethical safeguards are needed to ensure that the best interests of children are properly considered when images and information are exposed on broadcast and social media.

 

What the internet can teach us about communication – and being better professionals

The two words ‘information’ and ‘communication’ are often used interchangeably, but they signify quite different things. Information is giving out; communication is getting through.

Sydney J. Harris

This is an article by Sarah Phillimore of St Johns Chambers in Bristol who has been a family law barrister since 1999 and worked in courts all over London and the South West.

In this article Sarah discusses the impact of the Internet on professional debate and the new drive for openness and transparency in the family law system and how it is hoped this can have positive outcomes for all involved in the area of child protection law.

I write from the perspective of a family law barrister who has been in practice for nearly 15 years. The bulk of my work is in care proceedings and most of the time I represent parents, although I am also instructed to represent Local Authorities and Guardians.

I am also someone who spends a lot of the time on the Internet, discussing things that interest me. I now have an ipad and often many hours in the day spent travelling or sitting and waiting outside court, so I have been able to indulge this hobby pretty regularly.

What I have found depressing over the years is the increasing number of those commentating on issues of child protection who firmly believe that the entire system is corrupt and broken. They argue, inter alia, that children are taken from loving homes, for no good or for ‘silly’ reasons in order for Local Authorities to fulfill their government sanctioned ‘adoption targets’. Given that their belief is of a malign State which deliberately sets out to ruin families for some obscure and unexplained financial benefit arising from each ‘forced adoption’, it is not difficult to understand why their views of family lawyers are equally stark and unflattering.

I am variously told that I am ‘a legal aid loser’, that I am ‘in the pockets of the LA’ and do what I am told or I won’t get paid. I am told that my clients don’t get to see the evidence against them and/or are not allowed to challenge it and if I haven’t noticed that I am swimming in a sea of corruption, it is because I am too stupid.

I consider myself a relatively robust individual and can weather the insults directed at me on line. But it isn’t the impact on my psyche that is the issue here. It is what these Internet debates have more widely revealed as the general corrosion of general public trust in the entire system of child protection. I think there is now an urgent need for more professionals not only to recognize this but also to engage with it. The protection of children is far too important an issue to be hijacked by just one agenda.

 

Lack of public trust and confidence in the system.

One of the reasons I am so concerned is that in the last few years, I have noticed an increasing and worrying trend for the Internet debate to spill out into my practice. I have had a number of clients who tell me that they understand why their child is being removed – because it will make the LA money. I have been quoted £30,000 per child, never mind that this is more likely a figure to represent the cost of keeping a child in foster care for a year. When I ask them to tell me WHY a cash strapped LA will spend large amounts of money on expensive care proceedings, of course, they cannot explain. I really do doubt there is an international conspiracy to steal children, headed by the United Nations – as some have asserted to me in all seriousness.

All this represents is a sad waste and diversion of some parents’ energies away from what really matters – dealing with their issues with drugs, with alcohol, with violence, which are standing in the way of their ability to translate the love they undoubtedly feel for their children into action which will ensure their children are reliably fed, clothed and taken to school.

The saddest example of this for me to date was the client who had made some dramatic and impressive changes to a life previously blighted by alcohol misuse and denial of the same. She had achieved the previously unprecedented stability of her own accommodation and had stopped drinking for a number of months. But on her application to discharge a placement order, she stood up to address the Judge on the basis that her child had been ‘stolen’ to make money for the LA. There was little I could do in closing submissions to repair the damage that had done to her credibility in the court’s eyes and an application which that morning had seemed promising, by lunch time had collapsed.

The point I am trying to make is that these Internet debates and the constant round of conspiracy theorizing have real and serious consequences when people take them out into the real world. In addition, whilst our energies are focusing on either maintaining or detracting from these theories, they are not focusing on what really matters – how do we improve the child protection system, how do we ensure that Victoria Climbie, Peter Connolley, Daniel Pelka and many other children did not die in vain, while at the same time not being too quick to remove children on an imperfect understanding of their family or medicial history?

The case of Allessandra Pacchieri  and the ‘forced caesarean’ in December 2013 was a stark example of all that worried the conspiracy theorists about the reach and malign motives of the State: the narrative of John Hemming MP together with Christopher Booker in the Telegraph being the targeting of a vulnerable foreign national who suffered a ‘panic attack’ and then found herself detained in a psychiatric hospital and forced to have a C section so that her baby could be ‘taken’ for adoption.

It was also a clear example of how frustrating it is for energies to be so misdirected. I agree there are interesting questions to be asked about the degree to which Alessandra Pacchieri was or could have been consulted prior to the court deciding that medical intervention was in her best interests. And I share the concerns of some commentators about why the original application was made on an urgent basis, when by that time she had been sectioned for a number of weeks and her advancing pregnancy was hardly a mystery.

However, a case involving a woman who was seriously mentally ill at the time of the application, to the extent that she lacked capacity to engage in legal proceedings and was represented by the Official Solicitor, whose two elder children did not live with her due to her inability to care for them, and who had both been delivered by C-section leading to doctors to have legitimate concerns about a subsequent attempt at a natural birth, made this a rather more complicated scenario than some would wish and certainly much less of a clear cut example of a ‘corrupt’ or ‘evil’ system.

However, reasonable and sensible debate about what could have been done better in this case quickly became buried under a mass of assertion and counter assertion about the systemic corruption of the family law system as a whole.

 

Positive changes to the way we debate

The first good thing

However, not all was lost. Some good has come out of what at first glance seemed to be yet another rehash of the same wild and unsupported allegations about ‘baby snatching’, lies and collusion.

The first good thing is a move towards greater transparency in the reporting of court judgments. If we have confidence in the decisions our judges make – as I do – we should not be afraid to let as much sunlight in as possible.

In the court ruling concerning reporting restrictions relating to Ms. Pacchieri’s baby, the President of the Family Division himself noted that:  [2013] EWCH 4048

This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.

The President was true to his word and on January 14th 2014 issued a Practice Direction relating to Transparency in the Family Courts and the Publication of Judgments that hopefully will lead to judgments routinely being transcribed and widely published. The cost of such endeavor must surely be worth it when balanced against the harm and damage done by loss of confidence in an entire system.

As the President also said in his 2013 judgment

… How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

I am glad that the debate is moving forward with regard to transparency but hope also that proper regard is going to be given to the need for maintaining privacy in some cases – particularly when the children don’t want details of their family lives exposed to greater scrutiny. There is a good blog post by Pink Tape on this very point.

You may also be interested in The Transparency Project -the aim of the project is to shed some light on the workings of the Family Courts, to make the process and the cases understandable for people without law degrees. 

The second good thing

Along with this judicial recognition of the need for greater transparency which has been explicitly recognized goes hand in hand with increased pubic discussion of such cases, came the possibly belated recognition that those of us who did have faith in the family justice system needed to also use the power of the internet to share information and hopefully encourage more positive debate.

A number of contributors to the various Internet discussion threads pointed out that there did not currently seem to be any clearly signposted resource offering advice and information without an agenda to all the people who might be involved in care proceedings. There were many excellent sources of information on the Internet but they appeared to be directed to particular groups of people only and it was not always easy to find unless you knew what you were looking for.

So a number of us from a variety of backgrounds and experiences decided to get together and create a resource that would help to inform all of those who might be involved in child protection issues be they, parents, lawyers, social workers or doctors. You will find us at www.childprotectionresource.org.uk

We hope that this site will be useful and interesting to a wide range of people. We always welcome contributions or comments, as long as they are reasonably polite and you don’t make serious assertions about corruption or conspiracies without some kind of proof in support.

 

How the internet can make us better professionals

I also expect and hope to learn from the site. The emotional perspectives from parents and children who have experienced the system are invaluable and sadly can sometimes get overlooked by a busy practitioner who is focusing on the forensic task of ‘winning’ a case.

I ask my clients to trust me; to trust that I am going to do the best job I can for them, that I am not a ‘legal aid loser’, here to appease the LA or simply worrying about paying my mortgage but that I chose to be a family lawyer because this area of law deals in vital and necessary issues about the very foundations of our society, our treatment of the vulnerable and our respect for difference.

But quite apart from my commitment to family law, equally my clients need to trust me to always recognize their humanity – that I won’t be blasé or cynical about their case, one of many to me but the only case that will ever matter to them. We all need to remember and understand that sometimes the conspiracy theories are promoted by many who have suffered real pain from the removal of their children and who sadly met along the way professionals who were rude, hostile or dismissive.

I do accept that mistakes have been made and miscarriages of justice have occurred. Mistakes in this field are particularly regrettable given their often profound and life long consequences for the children and families concerned – both for those children removed too soon and those removed too late, or sadly not at all.

What I don’t accept it that such mistakes represent a deliberate and planned attempt to ruin families and ‘snatch’ children. The more time we waste on that debate, the less time and energy we have to devote to ways to improve the system. For example, see the excellent Kids Company campaign ‘See the Child’.

 

Conclusion

We need to remove as many of the barriers that stand between trust and good working relationships as possible.  While professionals must remain ‘professional’, there is a danger this can slip into aloofness, imposition of unnecessary barriers to communication, and/or unwillingness to enter a legitimate arena of debate. This area of law and of life is too important to be dominated by those with narrow and possibly dangerous agendas, be they professional or parent.

The time is long overdue for greater transparency, co-operation and debate. We all want the same thing. To protect children, the most vulnerable members of society, and to do the least harm possible in the pursuit of that essential aim.

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