The opposite of transparency

An appeal against a reporting restriction order, and a crowdfunder to help with the costs.

All last weekend, I physically itched to write this blogpost.

I waited, because I knew it couldn’t be bashed out quickly. I’m having to be extremely careful in what I write here, and will need to leave out lots of details. One detail in particular is important in terms of understanding the degree of public interest in this story. But I’ve decided that, under current circumstances, I will have to leave it out.

This is incredibly unsatisfactory in terms of readers understanding the full significance of what has happened in a particular public law case where a local authority asked a court to place a child for adoption – a case moreover that has taken several years to reach a permanent decision for that young child.

Eventually I wrote this post on Monday, and took formal legal advice that night as to whether it might place me in contempt of court. With enormous thanks to family barrister Sarah Phillimore, who researched and wrote the advice without charging for it (her blog and the advice are here) I’ve decided to publish what I’ve written. But I’ve still spent two difficult days worrying whether I could be found to be in contempt of court as a result.

The sanction for contempt is a fine or jail.

I don’t mind about taking that risk for myself, but I’m also taking it on behalf of my family. While ending up in court is, I would hope, unlikely, knowing  that I might is an unpleasant place to be as a freelance. I’ve had to discuss the prospect with my partner: I’m lucky that he understands and has said to go ahead.

Because this matters. And it matters because it’s the state’s intrusion into one family’s life that I’m writing about – an intrusion that very nearly went very wrong. And what went on in court last week, when the media attempted to report it, was the polar opposite of transparency.

I intend to appeal. There is a crowdfunder to help with the costs , and if you feel able to contribute, I’d be hugely grateful.

Please donate here

The background

On Friday just gone, I drove a couple of hours to a city court to sit in on a family hearing. I was accompanying another freelance journalist, Melanie Newman, offering her a bit of moral support as she sought to relax the statutory reporting restrictions which mean that normally, publishing “information relating to proceedings” in any family court matter is prohibited.

The BBC also attended.

Melanie Newman was interested in the case because, earlier this year, she’d discovered via a judgement published on the legal website Bailii that an adoption placement order had been successfully appealed.

The mother in the case knew that unless she won the appeal, she would lose her child to the care system; if an adoptive family was found, their relationship with each other would have been extinguished for ever.

There is no legal aid for a parent to appeal a lower court’s decision in this situation. The mother (who was not wealthy) had somehow managed to find a huge amount of money – a sum I’ve decided not to specify, but which would be utterly prohibitive for most parents in care proceedings – to pay for advice and representation in the appeal.

She won. I don’t know how often this happens in an appeal against an adoption placement order but I don’t expect it’s common (I’d be pleased to hear if anyone has stats). And because she won, the case was remitted back to the lower courts for a rehearing of the council’s application to have her child adopted.

At this point in a blog or an article, I would normally link directly to the appeal court judgment as published on Bailii. It is always best practice to link, so that readers can see in as much detail as possible what the judge or judges said. But I can’t do that here. And that’s because in their ruling, three appeal judges, presumably deliberately, opted to specify a number of details. They named – quite normally – the local authority (which again I have decided not to specify here, in an attempt to make it harder for any reader to locate the judgment – the opposite of good practice).

Rather less usually, they also decided to name a social worker and an expert involved in the case. I’m not actually all that bothered about this aspect, and might well not report the identity of either, but the fact remains that these two professionals are named in a judgement that is in the public domain. This is relevant given what comes later.

The appeal judges also gave the ages of the child and mother. The age of the child, certainly, is of particular relevance for reasons that I am now ordered not to explain. This constrains me from explaining the extreme importance of the timings in this case.

Thirdly, the judges specified the mother’s ethnicity, as indeed they had little option but to do to given that she was, at least at first, contending that there had been an element of racism towards her on the part of the council.

The hearing

On Friday, the local authority, the mother’s counsel and the Guardian asked the judge to make reporting restrictions in relation to this final hearing. The judge who was presiding over what it had emerged was not a renewed application for an adoption order but an agreed order whereby the child was to go home to her mother – then ordered that the media could not report:

  • the names of any professionals
  • the ages of those involved
  • the ethnicity of those involved

And this despite the fact that those details were already a matter of public record, placed there by the Court of Appeal.

The problems that arise

The judge did not restrict the media’s right to freedom of expression after undertaking a sufficient, or indeed any balancing exercise between the family’s Article 8 rights and the media’s Article 10 rights.

He could not, because the parties’ barristers did not offer any evidence as to how the details they sought to restrict would create a risk of identifying the child. They simply said they were worried that they might.

The judge did not then probe them for evidence of those risks. The upshot was that no analysis or evaluation of that evidence could be done, because no evidence was offered. That meant that the judge could not then assess whether the restrictions sought were proportionate to the risks, or look at how those risks might be mitigated. So that proportionality exercise wasn’t done.

The judge also did not give reasons for imposing the reporting restriction order. We are left to assume that he felt that the details would contribute to identification.

Also, importantly, the judge did not directly address Melanie Newman’s application that she had made with notice to relax Section 12 of the Administration of Justice Act, which prevents the media from describing what went on in court that day.

And all this is why I wonder now, with heart in mouth, whether I am in contempt for even writing this.

Opaque transparency

Given the reporting restrictions that were imposed, the media can now either:

a) report on the final outcome of this care case.

or

b) we can report on the detail of – and link to – the appeal court judgement, which provides all the identifying information that has been proscribed.

But we cannot, safe from the risk of being in contempt, do both.

I have deliberately withheld the name of the local authority, and many of the details of this case, as a protection from any charge that I am contributing to jigsaw identification. Given what research findings have found about this particular local authority – which again, I cannot specify – the fact that I feel unable to identify it is a very serious problem. The public interest is undermined.

Overall, this reporting restriction order means that a case where, thanks to poor local authority evidence and poor judicial analysis and reasoning, a child would very likely have lost its relationship with its mother…

…and where that same child is now at home with its mother only thanks to her having been able to scrabble together an enormous sum of money to fund an appeal that the state would not pay for – cannot be properly reported in the detail it merits and that the public deserve.

It is for these reasons that I am enormously concerned at what transpired in court in that hearing on Friday, and intend to appeal the judge’s order.

Other considerations

It is worth pointing out at this point that after the reporting of the “Muslim foster care” case, trust in media reporting of family law has taken a serious hit. Unsurprisingly, as a result, journalists are now being asked to evidence their reporting on family law cases.

When the media highlight failings in the family law system – whether failings of public policy that disadvantage parents due to the lack of legal aid in appeals, or failings of local authorities and the courts in adoption applications – we are being asked to show that what we say is accurate, fair and balanced. And there should be no objection by any journalist to making available a published judgment on which they have drawn for their information. I always take care to provide links.

It is also vital, when reporting on such important matters, to offer readers as much opportunity as possible to make their own mind up. Linking to judgements, and being able to describe the detail contained in them to enhance understanding of family law, is a critical tool in giving the public more information rather than less.

As the immediate past President of the Family Division, Sir James Munby, said in the 2013 case of Re J (http://www.familylawweek.co.uk/site.aspx?i=ed116450) :

“There is a pressing need for more transparency, indeed for much more transparency, in the family justice system…. One [aspect] 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. The public generally, and not just the professional readers of law reports of similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction.”

Making reference to the loss of trust in the family law system, in the same case he later stated:

“It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables is workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases. (my emphasis)”

Given that family cases are heard in private, being able to link to judgements is, therefore, while not perfect, at least a halfway decent tool when it comes to holding the state’s power to intrude so drastically into our family lives to account.

By knowing more about the decisions that are made in court and how they’re reached, we all stand a better chance of working out whether we agree with the way that draconian state powers are being invoked in all our names.

Court is a lonely, and a frightening place

This wasn’t my life. I wasn’t fighting for my family. The state hadn’t told me that it wouldn’t fund my appeal against a judgement that I felt was weak and that would take my child from me for ever. But I got a tiny, tiny taste of the terrified powerlessness a parent must feel when they pitch up at court, with their family’s entire future at stake.

On the day, as it happened, I thought I was prepared. I had written out some arguments. I had the print-out of Re J, with the relevant parts highlighted (there are a lot of them). I had also been in courtooms before, asking for reporting restrictions to be relaxed, so had a  bit of experience.

But everything happened so fast. There was no opportunity to say  I didn’t think the process that should have been followed had been followed. I had no idea at the time of a procedural  requirement that I was told about over the weekend, which is that if you intend to appeal, you should normally say so on the day. I was so gobsmacked that the judge had said the media could not report details that were already public that my jaw was simply scraping the floor.

There is no doubt that the media was hampered by being up against three qualified and experienced lawyers, without any representation of our own. And so I’m incredibly grateful to Sarah Phillimore, for saying that she will represent me pro bono in the appeal.

But.

While my time and Sarah’s will be unpaid, there will be costs. I anticipate these will be:

  • the fee for an application to set aside an order, at £255
  • our travel costs to hearings, between £500 and. £1000
  • if the appeal fails, the possibility of a costs award being made against me.

This last one is particularly scary. And yet this is an important fight.

We cannot end up in a situation where there is less transparency in family law cases, rather than more. The charge of poor processes carried out in secret courts will stick if this kind of thing carries on – and they will be right.

Most particularly when a court system operates in private – in effect in secret – I don’t believe it is acceptable that it can operate in this way.

Funding my appeal

Please will you help to fund my appeal against these reporting restrictions, and a possible fine if I am found in contempt?

Any money that is donated but not used in funding the appeal and a possible costs award will be donated to the charity Advocate (the new name for the Bar Pro Bono Unit) which enables people to get access to justice when they can’t afford to pay.

Please donate here

Thank you so much.

Louise

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