Tag Archives: Article 8

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, (former) President of the Family Division

The issues of transparency and openness in the family courts have provoked much debate. It is sad to note that the zeal for reform from about 2013 shown in particular by the former President of the Family Division, has not resulted in any particular change to general practice. More court judgments are being published and The Transparency Project has increased discussion and awareness of the two central tensions; between the need to keep intimate family information (particularly about children) out of the public domain and the need to have public understanding of, and confidence in, the workings of the family justice system. 

However, and sadly, the distinction between ‘privacy’ and ‘secrecy’ continues for many to be a distinction without a difference, or one that is wrongly relied upon to justify poor practice and lack of scrutiny.  The trend is slowly 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 attempts to offer guidance/reform
  • 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

For a useful summary and discussion of where we are now 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.’

The general rule is that you need to be very careful about publishing information about care proceedings, particularly if this could lead to a child in proceedings being identified. ‘Publication’ includes posting information on social media sites.

This is contrary to the general principle of ‘open justice’ – that the public is entitled to know what is being done in their name – but many argue it is justified when dealing with proceedings involving sensitive family issues, and 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 has been the position for a long time. 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 not always. Journalists may be able to come into court but there are serious restrictions as to what they are allowed to report.

Attempts at Guidance and Reform

On 16th January 2014, the (then) President of the Family Division Sir James Munby, 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).

Research led by Dr Julie Doughty found in March 2017 that there were a number of difficulties arising in practice, including ‘patchy understanding of and adherence to the 2014 guidance over the country’ and the burdens of preparing judgments for publication’ with all the associated concerns about identification of children, families and practitioners, is falling inequitably amongst judges and practitioners’.

On the 7th December 2018 the (now) President of the Family Division published further guidance. This endorsed the two ‘checklists’ set out In July 2016 by Dr Julia Broph’s draft guidance on the anonymisation of judgments. This aims to minimise the risk of identification of children and made recommendations on how descriptions of sexual abuse could be presented in judgments with a view to protecting children from the dissemination of distressing material on the internet or social media.

The Transparency Project have commented on this guidance and in particular note that while warnings against use of sexually explicit detail in judgments are well made, there is unease about what may be a move to routinely keep the identity of professionals from publication and demands that there be ‘no’ risk of ‘jigsaw identification’ :

Although it doesn’t ban the naming of professionals and local authorities, this new guidance might be seen as tending to reverse the starting point that professionals and local authorities should ordinarily be named and to that extent would be a drawing back from the previous move towards greater transparency. The guidance says (in places) that the aim is to ‘avoid any risk of jigsaw identification of children’ (our emphasis).

The guidance now issued seems to replicate word for word a draft proposed in 2016 by Dr Julia Brophy. That draft guidance was deprecated by Mr Justice Hayden at the time in a case called Re J (A Minor) [2016] EWHC 2595 (Fam)

It is important to note that ‘guidance’ is not ‘law’ but there is concern that this new guidance may act to encourage undue prominence being given to Article 8 rights to privacy when balanced against the Article 10 rights to freedom of expression. We will have to wait and see how the guidance operates and is interpreted.

A useful test case, particularly with a view to challenging the suggestion that ‘no’ risk of jigsaw identification is permissible (rather than say a ‘low’ risk) and exploring how exactly is that risk analysed and assessed, may be Louise Tickle’s forthcoming appeal against the imposition of a Reporting Restrictions Order which purported to restrain journalists from reporting on information that was already in the public domain. She has succeeded in getting permission for appeal and as of 12th December 2018 we await the hearing.

Watch this space!

EDIT – FEBRUARY 2019 – Louise Tickle won her appeal and the President has announced a further consultation about transparency in general. See this post for discussion of the judgment and links to various articles about the case.

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.

Publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

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:

  • It is wrong to suggest that ‘mere publication of information about a ward of court’ was contempt of court.
  • But there is clearly widespread misunderstanding about the ambit of section 12 and in particular the words  “information relating to proceedings before [the] court sitting in private”.
  • In essence, 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. …
  • section 12 does not prevent publication
    • of the fact that proceedings are happening, or
    • identification of the parties or even of the ward himself.
    • or the comings and goings of the parties and witnesses,
    • or 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. At  para 77 in Re B, Munby J poses his final question ‘the extent to which section 12 prohibits discussion of the details of a case’.

He found he was assisted by Wilson J’s analysis in X v Dempster. There the question (see at p 896) was whether there was a breach of section 12 by publishing the words:
“Says a friend of [the mother]: “She has been portrayed as a bad mother who is unfit to look after her children. Nothing could be further from the truth. She is wonderful to [them] and they love her. She wants custody of [them] and we will see what happens in court”.”
Wilson J commented:

I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.


Munby J agreed with this observation and concluded:


Every case will, in the final analysis, turn on its own particular facts. The circumstances of the human condition, and thus of litigation, being infinitely various, it is quite impossible to define in abstract or purely formal terms where precisely the line is to be drawn. Wilson J’s discussion in X v Dempster, if I may respectfully say so, comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not.

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 this 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.

EDIT August 2018. Sadly, the reform proposals appear to have stalled. The Transparency Project  commented on Sir James Munby’s retirement speech in July 2018:

When asked if he thought that sitting in open court would ever become the default position in the family courts, as it now is in the Court of Protection, Sir James indicated that judges, lawyers and others were rather stuck in the past and uncomfortable with change, rather than making reasoned objections to more openness. He said that people had preached ‘Hell and Damnation’ about his transparency guidance issued in 2014, but ‘the Family Court did not collapse’.

EDIT – reform attempts are up and running again! See recent guidance on publication of family court judgments from the President on 19th June 2024

Further reading

Taking your child away ‘in the interim’ – what does this mean and how does it happen?

In this post we shall look at the ways the state is allowed to take a child away from his/her parents BEFORE all the relevant evidence has been seen and heard by a Judge at court hearing.

If your child is currently AT HOME under a care order and the LA wish to remove him or her, please see this post ‘Child at home under a care order’ 

If you agree to your child being removed from your care, your child will be accommodated by the local authority under section 20 of the Children Act 1989.

If you DO NOT AGREE, there are only two ways your child can be taken away without your agreement:

  • by the police using their powers under section 46 of the Children Act 1989, for a maximum of 72 hours only
  • by an order of the court
    • Emergency Protection Order (EPO) under section 44 of the Children Act 1989; or
    • Interim Care Order (ICO) under section 38 of the Children Act 1989.

However, a social worker would be acting lawfully to remove a child from a parent – and indeed would be expected to act – if there is a threat of immediate violence to the child from the parent. See  R (G) v Nottingham City Council [2008].

Taking children away from their parents before all the evidence has been looked at is obviously one of the most difficult and controversial issues in care proceedings.

This is a really helpful post by suesspicious minds: ‘Social Services are asking me to put my child in care and they want me to do it now’.

When is it right to remove a child on a ‘interim basis’ i.e. before all the evidence has been heard and considered by the Judge at a Final Hearing?

These cases are often very finely balanced – if a child is taken from home and goes into foster care for a few months and then is returned home, this obviously has the potential to cause the child (and the parents) a lot of emotional upset. However, if a child isn’t removed from home when he should have been, the child could be left in a dangerous situation for a number of months while a final hearing is arranged at court.

So this issue has generated a lot of discussion and case law, particularly as Local Authorities reacted to the tragic death of Peter Connelly  in 2007 and were keen to intervene to prevent another child dying or being seriously injured.

Removal under an Interim Care Order – ICO

First stage

The first and important thing to be very clear about – the court CANNOT agree with a LA’s plan to remove  a child from home before the final hearing under an ICO, unless it determines an interim care order is lawful in the first place.  Interim care orders come under section 38 of the Children Act 1989. The court must have ‘reasonable grounds’ to believe that section 31(2) is satisfied i.e. that the child has suffered or is at risk of suffering significant harm.

We have examined the concept of ‘significant harm’ in more detail in another post.

Second stage

If the court does find significant harm has happened or is likely to happen, it then goes on to the second stage; is removing the child the right thing to do now? The key question is the proportionality of the removal when set against the risks of harm.

The case of C (A Child: Interim Separation) [2019] EWCA Civ 1998 summarised the approach which is set out below. The importance of the proportionality test was further emphasised in the Court of Appeal decision in J & Ors, Re (Children: Interim Removal) [2023] EWCA Civ 1266 (03 November 2023).

(1) An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.
(2) The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.
(3) Accordingly, in all cases an order for separation under an interim care order will only be justified where it is both necessary and proportionate. The lower (‘reasonable grounds’) threshold for an interim care order is not an invitation to make an order that does not satisfy these exacting criteria.
(4) A plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare demands it and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur.
(5) The high standard of justification that must be shown by a local authority seeking an order for separation requires it to inform the court of all available resources that might remove the need for separation.”

“The test is whether the child’s safety is at risk and, if so, any removal should be proportionate to the actual risks faced and in the knowledge of alternative arrangements which would not require separation.”

The reason that the court must not try to look at the wider issues in the case at an interim hearing is because it just wouldn’t be fair to anyone to do so. Interim hearings are usually arranged urgently and you will be lucky to get any more than a day of the court’s time to hear them. There simply won’t be time to give all the issues the attention they deserve. However, the court can’t ignore likely future outcomes and when considering what is in a child’s best interests must take account of all the circumstances and will concern itself with the reality of the child’s situation.

Proportionality is a key concept in family law, arising from Article 8 of the European Convention on Human Rights [ECHR]. Interfering with a child or parent’s right to a family life can only be allowed if it lawful, necessary and proportionate. If you want to read more about the impact of the ECHR on family law, here is a useful article.

Therefore, if the LA wanted to take a child away at an interim stage because there were concerns about an untidy house or couple of incidents of shouting, that almost certainly would not be considered proportionate. But if the child had a broken arm and no one could explain how it happened, interim removal almost certainly would be considered proportionate.

If you want to appeal against a decision for interim removal, the court is clear that the course identified in Re N (Children: Interim Order/Stay) [2020] EWCA Civ 1070 should be followed to allow a short stay, given that Unless the child’s safety and welfare require their immediate removal, the court should always allow an unsuccessful party the opportunity to apply to the appellate court, which can hear urgent applications promptly.

Interim removal of babies

The most difficult cases are those involving new born babies. This is obviously an extremely serious and draconian intervention in family life. Hospitals are unlikely to be willing to keep mother and baby for more than a few days after they are both fit to be discharged.

There appears to be a worrying trend that local authorities will come to court for interim removal hearings shortly after the baby’s birth without information about placements where the baby could remain with at least one parent. They justify this on the basis that ‘it is not our plan’. Regardless of what the LA does or does not wish to happen, they have an obligation to provide relevant information to the court to enable it to make the right decision for the child. A great deal of time and energy is often wasted at court chasing information which could and should have been provided in advance.

See further the case of L (A Child) [2013] – which examined when removal of a new born baby is lawful. In this case, the baby was returned to his mother’s care pending final hearing.

What happens next?

The Court of Appeal reminds us that even when the court has decided it is right to make an interim care order it must think about what is going to happen to the child after the order is made – where is the child going to live? What kind of contact will the parents have? This evidence is ‘bound to be relevant to the welfare analysis and proportionality evaluation’.

Emergency Protection Orders

There is obviously going to be some overlap between cases where the LA apply for removal under an EPO or an ICO.

One important difference between the two is that an EPO can only last for 8 days when it is first made and then can only be extended for a further 7 days. Interim care orders can last for a lot longer. See this article by Andrew Pack about how time limits for ICOs have been extended by the Children and Families Act 2014.

EPOs should only be used when a situation is urgent. It is essential that courts consider and apply the guidance in the case law about how to approach EPOs, given the serious consequences of making such an order.

See re X (Emergency Protection Orders) [2006] 2 FLR 701. Here the Judge referred to the guidance of an earlier case and made it clear this guidance was ‘essential reading’ for any court making a decision about an EPO.

See paragraph 64 of his judgment onwards:

Very serious reasons needed for an EPO

  • An EPO, is a ‘draconian’ and ‘extremely harsh’ measure, requiring ‘exceptional justification’ and ‘extraordinarily compelling reasons’. The court shouldn’t make an EPO unless its necessary and no other less radical form of order will keep the child safe; ‘imminent danger’ to the child must be ‘actually established’.
  • Both the local authority and the court have a very serious responsibility to approach every application with an anxious awareness of the extreme gravity of the relief being sought and a scrupulous regard for the European Convention rights of both the child and the parents.

The EPO must be a proportionate response to the concerns about the child

  • Any order must provide for the least interventionist solution consistent with the preservation of the child’s immediate safety.
  • If the real purpose of the local authority’s application is to enable it to have the child assessed then they should think about making an application for a Child Assessment Order under section 43 of the Children Act 1989.
  • No EPO should be made for any longer than is absolutely necessary to protect the child. Where the EPO is made on an ex parte [without notice to the other side] application the court should think about making an order for only a very short time.

Proper evidence is needed to justify an EPO and parents need to know what it is

  • The evidence in support of the application for an EPO must be full, detailed, precise and compelling. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning.
  • Save in wholly exceptional cases, parents must be told that the matter is going to court and given advance warning of the evidence the LA will rely on.
  • Where the application for an EPO is made [without notice] the local authority must make out a compelling case for applying without first telling the parents notice. An application [without notice] will usually only be considered OK  if the case is genuinely one of emergency or other great urgency.
  • The evidential burden on the local authority is even heavier if the application is made [without notice]. Anyone who applies to the court without the other side knowing about it, have a duty to be honest and open about all the relevant circumstances known to them.
  • Section 45(7)(b) of the Children Act 1989 permits the [court] to hear oral evidence. But it is important that those who are not present should nonetheless be able to know what oral evidence and other materials have been put before the [court].
  • The mere fact that the [court is under obligations to record the evidence] is no reason why the local authority should not immediately, on request, inform the parents of exactly what has gone on in their absence. Parents against whom an EPO is made [without notice] are entitled to be given, if they ask, proper information as to what happened at the hearing and to be told, if they ask: (i) exactly what documents, bundles or other evidential materials were lodged with the [court] either before or during the course of the hearing; and (ii) what legal authorities were cited to the [court]. The LA’s lawyers should act quickly to provide the parents or their lawyers copies of any material considered by the court so the LA lawyer should make a very good note of the proceedings.

Is there an alternative to an EPO?

  • Section 44(5)(b) of the Children Act 1989 sets out that the LA can only make decisions about the child if it is  ‘reasonably required to safeguard or promote the welfare of the child’. Section 44(5)(a) provides that the LA shall remove children from their parents under s 44(4)(b)(i) ‘only … in order to safeguard the welfare of the child’.
  • The local authority must think very hard about whether or not removal is essential in order to secure the child’s immediate safety. The mere fact that the local authority has obtained an EPO is not of itself enough. The [court] decides whether to make an EPO. But the local authority decides whether to remove. The local authority, even after it has obtained an EPO, is under an obligation to consider less drastic alternatives to emergency removal. Section 44(5) requires a process within the local authority whereby there is a further consideration of the action to be taken after the EPO has been obtained. Though no procedure is specified, it is a very good idea for all LAs to have in place procedures to ensure both that the required decision-making actually takes place and that it is appropriately documented.

LA needs to keep the case constantly under review and arrange proper contact.

  • The LA has a positive duty under Article 8 of the ECHR to keep under review any decision to keep a child out of his parents care and to think about how they could be reunited. Secion 44(10)(a) and s 44(11)(a) impose on the local authority a mandatory obligation to return a child who it has removed under s 44(4)(b)(i) to the parent from whom the child was removed if ‘it appears to [the local authority] that it is safe for the child to be returned’. This imposes on the local authority a continuing duty to keep the case under review day by day so as to ensure that parent and child are separated for no longer than is necessary to secure the child’s safety. In this, as in other respects, the local authority is under a duty to exercise exceptional diligence.
  • Section 44(13) of the Children Act 1989 requires the local authority, subject to any direction the court makes under s 44(6), to allow a child who is subject to an EPO ‘reasonable contact’ with his parents. Arrangements for contact must be driven by the needs of the family, not stunted by lack of resources.

Further Reading

For information about what the courts expect from practitioners at an urgent hearing and how court bundles should be prepared, see this guidance from Cobb J in 2014.