Transparency Made Simple!

This is a post by Sarah Phillimore

I was asked if I could re-state the law about confidentiality in family proceedings for the benefit of parents who want to talk about their proceedings publicly. What follows is an attempt to simplify the main post on this site about transparency. The usual warning applies – this cannot be used as particular legal advice for a particular case. If you are worried about the consequences of anything you do, you need to get advice from someone in real life who knows what is going on in your particular case. But I hope it can be a useful condensed guide to the general principles. 

Contempt of court is a really serious thing and can lead to you going to prison. But what the courts really don’t like are people who deliberately break the law in an attempt to show how much they dislike the court system. If you can show that you tried your best to stay on the right side of the law I think its unlikely any court would want to give you serious punishment. 

Golden rules

• Don’t identify any children – by name or by providing information that would make it easy for others to work out who the child is for example, names of older siblings or school the child goes to.  This is called ‘jigsaw identification’
• Don’t publish any evidence or talk about in detail what happened in court unless you have the permission of the Judge
• Generally to ‘publish’ means ‘making information known to the general public’ so would include putting information on the Internet, such as a Facebook profile.

Why is it so complicated?

Because the law in this area has developed over a long time and in a variety of different ways. If you find it hard to understand – don’t worry. So do the Judges and the lawyers.

Why can’t I just talk about my case?

Because children do not get a choice about whether or not they are part of care proceedings and it is very unfair to publicise information they might find very embarrassing or shameful.

Important laws you need to know

Section 97 of the Children Act 1989

Section 97(2) says no person shall publish anything 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.

If you do this it can be a criminal offence but you have a defence if  you didn’t know or suspect that the published material was intended or likely to identify the child.

Section 12 Administration of Justice Act 1960.

It is a contempt of court under this section to publish information about ‘private proceedings’ UNLESS you are telling a professional something they need to know to protect a child.

You can publish information about ‘the nature of the dispute’ but you can’t refer to the actual evidence, not even in summary. This is quite a tricky distinction.  There is no time limit to this section so you are caught by it even when the care proceedings are over.

This doesn’t cover the identify of witnesses in care proceedings so they can be named unless the Judge makes a different order.

In Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) [2004] 2 FLR 142 at para [82](v)-(vii); Munby J tried to shed some light on what section 12 covers:

• 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 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.

I want to talk about my case at a conference or to a  journalist

So how does section 12 stop you talking about the details of the case?  This is a difficult area and causes problems for the lawyers to understand.

Sir James Munby looked at one example;

“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”.”

The Judge dealing with the case found that WAS a breach of section 12 as it went ‘far beyond a description of the nature of the dispute and reached deeply into the substance of the matters’

However, it is clear that every case turns on its own facts, which makes it difficult to provide clear advice about what would or would not be acceptable to talk about. If you are worried, then ideally you need to ask the Judge who heard your case for permission to raise certain issues.

As a general point you are probably ok if you

• talk about the fact that there were care proceedings
• talk about what happened after the care proceedings and how it made you feel

How does the court approach applications for publicity?

• 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.

In 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. The court didn’t agree.

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.

Sir James Munby said this about Re J

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.

 Rule 12.73 of the Family Procedure Rules 2010

Further reading

• See an interesting article from Pink Tape here about the dangers of inaccurate reporting in the name of ‘transparency’.
• Here is an interesting article by John Bolch which argues against any assumption that family courts are ‘secret’.
• A transcript of the FJC debate on 11th November 2014  ‘Transparency in family proceedings – is the Family Court open for business?’
• An article from the Transparency Project about the how the FJC debate was reported.
• David Burrows’ article from the Transparency Project about the ‘open court’ principle.
• For help with getting information from public bodies, visit the What Do They Know site.
•  this post from the Transparency Project which is aiming to publish a definitive ‘How To’ guide to making an application to publish information from private family proceedings.
• Also from the Transparency Project the Transparency Toolkit  which gives an overview of issues around transparency in the family courts.
• Transparency in the Family Courts: Publicity and Privacy in Practice April 2018, by Julie Doughty, Lucy Reed and Paul Magrath
• Scrutiny of the Family Courts – what can we learn from Ireland? March 2019 Louise Tickle’s account of her visit to Dublin to see how family matters are reported in Ireland.
• Guidance from the President of the Family Division about reporting from family courts, 29th October 2019.