Consultation response to the President of the Family Division’s Review into transparency in the family justice system

This is the document I emailed earlier today to the office of the President of the Family Division, in response to his call for responses to his Review into Transparency.

A quick heads up – I am asking for the urgent repeal of Section 12 of the Administration of Justice Act (1960), which prevents virtually all reporting of what goes on in family hearings,  stifling freedom of speech and preventing scrutiny of a system that many no longer trust.
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I am a freelance journalist with a particular interest in reporting on the family courts, which I have been attempting to do, with varying levels of success, since 2014. My reporting on family courts was shortlisted for The Orwell Prize for Journalism in 2016, and in the same year I won the Bar Council’s Legal Reporting Award for a Guardian investigation focusing on the effects of legal aid cuts to family law cases. I write a quarterly column for Family Law Journal, and over the last five and a half years, have made a number of applications to report details of private hearings, both orally during or at the end of hearings, and more formally by way of written application during or after the conclusion of proceedings.

Three of these were substantial written applications; in two, the investment of time, effort, expertise and money was immense and onerous to the point that the commission was i) in one case lost ii) in one case nearly lost.

One of the applications required considerable advice and drafting support from The Guardian newspaper’s in-house legal team. Two have required counsel’s advice and representation in court hearings over several months. The first of these was a request to relax restrictions in order to report the details of a public law case; it involved a council’s application to place for adoption a baby who had been removed at birth, which was abandoned at the 11th hour in favour of the child being returned to his mother (the subject of a Guardian Weekend Magazine longread published 20 Feb 2016). The second is an ongoing application to be able to report certain details of a private family law case; this is for a documentary I am making.

In addition, in February 2019, and as a freelance, I successfully appealed a reporting restriction order I believed had been unlawfully made by a deputy high court judge in a Portsmouth court, and which would have prevented the public interest reporting of the outcome of a complex and important story about an adoption placement order on a young girl. (I append my Guardian comment piece published the week after the appeal hearing, and also two Guardian leader columns on the issue of transparency in family justice).

As part of my submissions in my appeal (which benefited from significant pro-bono advice and representation from a family barrister, a human rights QC and solicitor’s firm, without which, I came to realise after initially attempting to manage it solo, the endeavour would have been virtually impossible to contemplate, let alone succeed at) I requested that the President issue guidance as to how family courts should in future approach media applications to relax the statute preventing reporting. He agreed, and the Guidance was published a few months later in October 2019. I have had several opportunities to use it in subsequent applications to the family court, and will comment later on the results.

In late 2018 I was awarded a one-year Ideas and Pioneers grant by The Paul Hamlyn Foundation to explore with users of family courts possible ways to recalibrate the current balance between privacy and openness. My aims and some of the work I did with this funding was described on my http://www.openfamilycourt.wordpress.com blog, which also hosted guest posts from lawyers, parents and social workers. As part of my research, I visited the Republic of Ireland to see how they had pursued greater transparency, after amending their law to allow anonymised reporting of family law cases. As of February this year, I hold follow-on funding from the Paul Hamlyn Foundation to help me set up an Open Family Court Reporting Pilot (discussed last year in principle with the President), the planning phase for which I had just embarked on when the Covid crisis hit.

Since 2016 I have been an active committee member of The Transparency Project and contributed to its very full response to this consultation; this much briefer personal response is intended simply to add some details from my experience as a journalist in the hope that they may be helpful.
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1 – The President has asked respondees to consider particularly whether the line is currently drawn correctly between, on the one hand, the need for confidentiality for the parties and children whose personal information may be the subject of proceedings in the Family Court, and, on the other hand, the need for the public to have confidence in the work that these courts undertake on behalf of the State and society.

2 – The assumption in this debate has always been that confidence versus confidentiality is a zero-sum game. I do not think it has to be. It does not fully encompass the options for more openness and scrutiny that are possible if the culture of the family justice system were to change, as I think, given the state it now finds itself in with regard to public confidence, it now must.

With measures in place to properly anonymise family members in any media reporting – such as operate very successfully criminal cases where sexual assault is alleged, or where young people are ordered not to be identified – far more detail could be published of the processes and decisions that take place in family courts, leading to greater understanding, more scrutiny, better quality debate, and, hopefully, more legitimacy for a system that – however painful this might feel to those within it – is currently failing to maintain public respect.

While secure anonymisation procedures do not address the issue of identifying information being placed, often by family members, on social media, the fact is that the publishing of such information is already very extensive, as a cursory search of Facebook, Twitter and other online platforms quickly demonstrates. By contrast, the ability of the media to publish details of a family court case and interviews with all those involved (an issue of balance frequently occurs currently where a local authority is unwilling to offer any input into an article for fear not only of intruding on a child’s privacy, but also of falling foul of contempt laws) does offer a legitimate route to complaint for family members who wish there to be investigation and reporting of their case. Meanwhile, not all reporting would involve investigation of this type of allegation of injustice: my interest is far less in cases where individuals approach the media than it is examining the overall process of family court hearings; it is vital that with secure anonymisation, journalists are able to undertake public interest reporting of both ‘bread and butter’ and complex family law cases. Such investigations are currently almost always far too risky for editors to contemplate commissioning.

3 – I also suggest that to take no action to increase transparency will not mean that public confidence in the child protection and family justice system remains in its existing state, whatever one assesses that to be. The longer no action is taken to improve openness, scrutiny and public acountability, the greater will be the loss of confidence, and even the contempt, felt by so many of those who find themselves embroiled in the family justice system.

This is not a sustainable situation for any system of justice where great powers are exerted that intrude into and change people’s lives forever – even less so for one whose raison d’etre is to protect some of the most vulnerable children in society. It matters enormously that the family justice system is trusted by those who use it. Virtually all my experience of speaking to, interviewing and being contacted by many hundreds of family members, and probably by now, scores of concerned professionals, suggests that today, in too many cases, it is not. Even given the fact that people primarily approach journalists when they are unhappy, angry or dissatisfied, the level of concern, plus the sheer, unrelenting number of the contacts I have received – incomparably higher than on any other issue I have dealth with in nearly two decades as a journalist reporting for the national press on a wide variety of education and social affairs issues – would indicate that trust in the system is broken.

4 – Regarding the President’s Guidance as to reporting in the family courts:
This has been useful.

For instance:

a) Last spring/summer, when it was still in draft form, I quoted sections of the Guidance in correspondence with a court centre when making a request for a transcript of a hearing related to the Portsmouth adoption case mentioned above. Where some family courts have in my experience been wary, slow or even obstructive in assisting my media enquiries, Section 8d “Courts should be astute to assist reporters” can now be helpfully employed to speed up the response. In this case, it worked – not wonders, but it worked.
b) More recently, I quoted the finalised Guidance to back up my requests for documents in advance of attending another freelance journalist’s application to the family court for sight of the paperwork and evidence in the Portsmouth adoption case mentioned above. I was given all parties’ skeleton arguments which helped me follow the oral submissions made over the next two days in court.

The setting out of a defined process with which a judge should approach an application to relax reporting restriction is very helpful in showing how an unrepresented journalist should be involved in the courtroom process, and actively invited by the judge to make their arguments.

Though it should not have needed to be said, it is right given the RRO which I appealed that judges have been plainly told that in approaching the decision as to whether to relax S12, they “should conduct the balancing exercise between privacy and transparency by balancing ECHR, Article 8 and Articles 6 and 10 …”

Finally, and speaking from experience, it is a huge relief that the Guidance says that unless the media has acted unreasonably or behaved poorly, a journalist or publisher is not at risks of a costs order if an application to relax the statutory restraints is not successful.

5. Journalistic experience of attending and reporting on family courts

It is is important to say that I have had some good experiences of attending private family hearings, and also of applying for and being given permission to report on family cases. Although often, I think, slightly anxious, some solicitors and counsel have been helpful and respectful of the role of the press in attending a case, whether they opposed my applications or otherwise. I think particularly of an occasion when a barrister representing a father whose child had died explained how difficult it would be for his bereaved client if I was to attend his final hearing. The barrister asked if I might consider not coming in. I had not been following this particular case for an article so there was no reason to insist, and in human terms it felt right not to go into court. What was important in this interaction was that the barrister did not question the media’s right to be there, but asked if I might be willing to forego that right given the circumstances. That approach was respectful of the role of the media while explaining the potential impact on his client. It left the decision to me, and in my view was the correct understanding of the right balance to strike in seeking to protect his client.

By contrast, I have been repeatedly unimpressed by local authority and Guardian opposition to my attendance at and/or reporting of a number of family court cases. I have been more unimpressed still by the widespread ignorance I have encountered of the law relating to the media’s rights of attendance, the grounds on which it may be objected to, and the way in which, once I have made an application to report, some experienced family lawyers and even in one case, a senior judge, have attempted to block reporting without recourse to any consideration of Article 10 rights versus Article 8 rights.

An example of this was set out by HHJ Wildblood in his judgment on the media’s application to report on a 2017 case: in the following excerpt he comments on a hearing on 20 October 2017 convened solely and specifically to consider the prospect of publication of certain details of a case.

In court, I observed, just as the judge describes, no reference by counsel to any of the competing human rights, or the need for them to be balanced, but instead simply a self-justifiying rehearsal of the social worker’s perspective on the care proceedings that had concluded.

6. The hearing on 20th October 2017 was disappointing. Although the Local Authority, guardian and mother all attended with legal representation there was no mention in any of the skeleton arguments or position statements of the legal considerations that arose in relation to the grandmother’s application. Specifically, there was no mention at all of Articles 6, 8 or 10 of the European Convention on Human Rights or any of the relevant case law (LT bold)The Local Authority had produced a statement from the social worker seeking to justify its actions during the proceedings and the written submissions were to the same effect. It was necessary for me to repeat many times that I was not conducting a hearing to decide upon the validity of the grandmother’s complaints (how could I do that in two hours without hearing witnesses?). I had to stress repeatedly that I was deciding whether the grandmother should have the right to disclose her statement (LT bold) and a contextual statement within the public domain.

I refer to this in particular because:

a) it is a reported example– a judicial description – of what I have experienced several times in attempting to attend and report on private hearings: not only a kneejerk, often legally unsustainable, and in one case, unpleasantly aggressive, opposition to a journalist’s simple attendance (an objection not made on any of the recognised grounds was most recently made on 6 May 2020 when a Guardian was informed I wished to attend a remote ICO application) but also –

b) because the longstanding private operation of family court hearings appears to have been so deeply ingrained into many lawyers and social workers working in the family justice system, my experience is that some cannot envisage, have not considered, and worst of all, do not especially value the reasons why scrutiny of a justice system is, in principle, a healthy and necessary aspect of democracy.

I believe that both factors a) and b) demonstrate a genuine, deep-seated cultural problem – an opposition to transparency, a complacent attitude to practice, and an unwillingness to see any benefits that might result from scrutiny – that has simply not been touched by the rule change allowing journalists into court that happened now eleven years ago. Nor indeed has the fact that it has always been possible to ask a judge to relax or remove the restraints imposed by S12 AJA by successfully making the argument that Article 10 and 6 (and indeed sometimes Article 8) override the right to confidentiality, been fully grasped by many professionals in the family justice system. Although this is incredibly frustrating, I say this not to express that frustration, but to make the argument that attempts to report on family law cases have been difficult not simply because of the complexities relating to the existing statute, but because some of those working daily in the family justice system have not demonstrated that they value the principle of open justice enough to learn in what circustances even our current law on private hearings does allow reporting, under certain conditions, to take place.

6 – This takes me on to Section 12 of the Administration of Justice Act (1960).
This law is, in practical terms, utterly chilling to freedom of expression and scrutiny of state powers.

First of all, it is generally agreed that Sec 12 is poorly drafted, such that the best legal minds have, over decades, lengthily and expensively wrangled with the meaning of its phrasing to decide what and is not permitted in terms of publication. The most senior judges in the land have had repeatedly to navigate – and sometimes create – tortuous routes through that phrasing.

Any law that requires such constant, costly and onerous litigation cannot be fit for purpose, particularly when what is in question is the proscription of human rights – primarily freedom of expression in relation to the exercise of justice, but also in some cases, it is argued, Article 6, the right to a fair trial, and an absolute right – which are so fundamental to the healthy operation of democracy.

The powers of which S12 AJA prevents public interest reporting are extremely draconian – in public law, for instance, the evidence and process leading to the removal of children from their parents, the forced adoption of children and the extinguishing of their legal relationship with their entire birth family including siblings, and the immediate separation of a newborn baby from its mother. In private law, these powers can, for instance, result in the total loss of contact between a child and a parent, or the enforced movement of a child from one parent to the other when the resident parent truly believes – whether or not they have been able to prove it to a court’s satisfaction – that abuse or harm will result.

These state powers, the process by which they are exercised and the judicial decisions which are made as a result of the legislation, need to be regularly, thoroughly and independently scrutinised, described and debated by citizens. At present, because of the immense costs in time, money and expertise of any contested application to publish the details of private family proceedings, this barely happens at all.
While ensuring sufficient measures are in place to protect children’s anonymity (while bearing in mind that courts have accepted that, depending on the case, harm does not necessarily result from identification) I believe that S12 AJA 1960 must urgently be repealed.

7 – The Republic of Ireland may offer some useful experience to inform moves to open up the family court system to independent scrutiny. I reproduce in full here my blogpost of the visit I made last year, mentioned earlier, because – although I would not favour the establishment of a similar Child Care Law Reporting Project as our sole means of scrutiny – the Irish experience offers interesting and perhaps surprising reassurance as to the overall long-term reaction to, and effect of, removing the automatic ban on the anonymised publication of details of private family cases.

Scrutiny of family courts – what can we learn from Ireland?

29 March 2019

I’m recently back from Ireland, where I went on a mission to explore how the country’s Child Care Law Reporting Project (CCLRP) works to provide scrutiny of their family courts and family law system. This blog should certainly have been written sooner, but I’ve been felled by a vicious bug, and am only now really able to collect my thoughts and attempt to analyse what I learned.

I made this trip because I am trying to figure out what might work in terms of achieving greater scrutiny of the family law system in the UK, so there is more transparency when the state intrudes into families’ lives, and better accountability for its methods, ethics and outcomes.

I’m tentatively calling this an Open Family Court pilot, and am hoping to advocate for it in meetings I have coming up with some people who might be able to help to make it happen.

Dublin visit

I met with solicitors, barristers, civil servants, the head of the biggest provider of Guardian at litem services, a human rights charity focusing on children with experience of care, and with judges. I also interviewed a journalist by telephone, spent a morning in a family court with one of the CCLRP’s rapporteurs (she is both a qualified barrister and a journalist), and interviewed the Project’s director, Dr Carol Coulter (who last autumn presented to the Association of Lawyers for Children conference in Bristol – here is her speech).

I tried over several weeks to arrange a meeting with Irish social workers, but this didn’t work out. I also didn’t have the chance to speak to any families who had been through the care system. Both are a real shame and I acknowledge that it is a significant gap.
The reactions from everyone I met to the Child Care Law Reporting Project were broadly very positive, with some criticisms. I will do my best to set out both in this post.
The first thing to note is that applications to remove children into care in Ireland are made not by local authorities, but by a central government body, the Child and Family Agency (also known as Tusla). This means that accountability issues on care applications are predominantly for central government to face. And helpfully, if you don’t need to name a local authority in order to hold the state to account, then worries around family identification relating to geography substantially fall away.

Of course, local authority areas in England hardly comprise tiny populations, but the fact that the Child Care Law Reporting Project does not need to – and indeed has chosen not to – name where care cases are heard, has probably helped considerably in countering arguments that detailed reporting of hearings risks identifying families.

Secondly, there is considerable protection given to families in the Irish Constitution.
There is no constitution in England and Wales. And I was told several times that the protections provided in the Irish constitution results in the courts being exceptionally wary when considering the removal of children from their parents. Interim care orders are made for 28 days, and often renewed repeatedly rather than applications being made for full care orders. Longer time-limited – one and two year – care orders  are common. Adoption without parental consent almost never happens, though the conditions in which it can take place have recently been very slightly relaxed. And care numbers in Ireland are currently going down, though numbers of voluntary agreements for children to live with their wider family members are going up.

Thirdly, the fact that families are highly unlikely ever to have their child adopted, does, I sense, takes some of the fury and heat out of the child protection debate. Here there is undoubtedly very great fear within families that care proceedings, particularly when they concern young children, might lead to parents, siblings and relatives losing their relationship with a child for ever. Not having the spectre of adoption hanging over them also, I venture, may well affect the relationship parents in Ireland have with the state and therefore the social workers they come into contact with: because the government is vanishingly unlikely to intrude quite this drastically into family life, there is perhaps not the visceral terror related to anticipated permanent loss, and therefore maybe a better chance of constructive working.

Fourthly, journalists in Ireland do not only have the right, as does the media here, to attend family court cases held in private: quite differently from in the UK, they are permitted to report the detail of those cases, and this does happen, though only typically for controversial cases. The legislation provides for the ability to impose restrictions on publication of information from family cases, and there are really draconian penalties – 50,000 Euro fines and a possible three years in clink – for any reporting that identifies a child or family.

But, critically, the starting point is that journalists may publish details of family cases held in private.

This is the direct opposite of the situation in the UK, where the starting point is that they may not. This is something I would very much like to reverse.
Nevertheless, I was told by Shane Phelan, legal affairs editor of the Irish Independent, the penalties have a rather chilling effect on editors’ willingness to cover family cases, even if they could stomach the resource implications of sending reporters to multi-day trials.

Finally, it’s important to understand that the Child Care Law Reporting Project does not, apart from specifying when cases are held in Dublin, identify the area of the country in which a case is heard, nor name the judge, social workers, experts or Guardians. Families of course are not identified either.

 

On the Monday morning that I arrived at the offices of the CCLRP, it had just released a report to the media. This report was unusual in that it did not detail any individual family cases, but described instead the pressures of lists in the district courts around the country that sometimes ran to 90 and 100 cases. District judges in the smaller towns, the Project’s rapporteurs had found, were dealing with issues like child contact, maintenance and domestic violence as well as public law care cases, all in the course of a day. While in bigger cities, care cases are dealt with on dedicated days, in the smaller and commuter towns, these cases were being squashed into more general lists, and the media was running stories about it on radio, tv and in print.

Coulter had previously told me that every time the Project releases a report, there is considerable media interest and even though there was no “sensational” family case described in this report, the media was certainly talking about the issues it raised: Coulter had been up early doing radio interviews, and dashed out of our meeting to give another one mid-way through the morning.

Only shortly before, a different report detailing six-months worth of lengthy, highly contested and problematic family cases had shown that homelessness was an increasingly frequent reason for courts being reluctant to allow children to return to their families: this issue too had been comprehensively picked up by the media.
“At the outset, civil servants and the Child and Family Agency (CFA) were not enthusiastic about us,” Dr Coulter told me, between radio interviews. “They had this fear that all journalists do is look for problems, which I understand. But we designed our attendance at court to be as randomised as possible, based on court statistics on volumes. I think, with some caveats, we get a more or less representative sample, and I think they were at least somewhat reassured.”

Coulter  designed a reporting protocol based on anonymisation best practice as carried out by responsible media outlets: the protocol is the mechanism whereby the Project’s reporters do not breach legislation on identification. “It wasn’t reinventing the wheel: it was based on how the media ensures it doesn’t name, for instance, victims of sexual offences,” said Coulter. “We train our new reporters in it.”

Coulter explained that many of the cases the CCLRP has written about are not contested, or are short and relatively simple, with only a very small number being highly contested. “If you were doing this journalistically,” she pointed out, “you’d go for highly contested, and that’s certainly important. But it’s not very useful in looking at the issues faced by vulnerable children across Ireland.”

This measured approach was specifically noted, and regarded as important by several of the people I later spoke to in the sector.

“The beauty of Carol’s work is that she’s not only looking at the worst cases,” said Freda McKittrick, a social worker by background who has worked in both England and Ireland, and is now assistant director of the Guardian Ad Litem service at the charity Barnardo’s Ireland.

She  believes that by describing the detail of public law care cases, the Project has given policy makers an insight into what is happening in child protection across the board. “That might be on the ethnicity of parents, or what proportion of care orders are granted compared to those asked for. This is not data that’s collected by the state.”
McKittrick also believes that reporting has raised society’s awareness of and sensitivity to child abuse. “Our perception is that the general public have had no idea of the level of misery that these children experience, and we can’t talk about it,” she said.
She expressed concern about whether children’s views on whether their cases should be reported, even anonymously, are ever solicited, let alone taken into account.
“The Guardian Ad Litem relationship has limits to its confidentiality already; we have to tell children that their information will appear to parents, also to other lawyers – should we also be saying ‘and it might also appear in the papers’?”
But she also observed that, as a Guardian who had built a relationship with a child, “you would know a child who was very sensitive to information and other children who would like people to know what happened in their case”.

Overall, McKittrick’s view was that “you need to look at the value of the reporting. And balance it against the rights of the individual child and also their anonymity and their consent.
“Having said that,” she concluded, when the Project began reporting, “the world didn’t fall in.”

I met John McDaid, the chief executive of Ireland’s Legal Aid Board, and a lawyer who formerly worked on child care cases, on my first afternoon in Dublin.
Is the Child Care Law Reporting Project effective in holding the state to account, I asked him.

“I think we’ve made giant strides but there is a way to go,” he said. “I think the fact Carol’s team even go into the district courts may make people behave a little more carefully than might otherwise have been the case. “Historically there was no scrutiny and everything was private, so anything could go on.”

I laugh to myself a little hollowly. That’s pretty much where we are in the UK, I thought.
But what about more overt media interest in family cases… what would he think of journalists reporting more enthusiastically from family courts?
“I’d have no problem with it.” McDaid said firmly.“In terms of greater levels of press scrutiny it’s good. The risk is the level of experience of the journalist, and the level of understanding of what is taking place in court.”

Catherine Ghent and Seona Ni Mhurchu are solicitors who represent children and families. Ghent introduced me to the delights of breakfast at the food emporium and cafe extraordinaire Dollard and Co, on the south bank of the river Liffey, before dashing to court on the Tuesday morning. Ni Mhurchu was kind enough to meet me in her office the following day before her court commitments.

Of journalists reporting on family cases, Ghent said: “I see public discourse as a way to hold judges, lawyers and the state to account.” However she also felt strongly that it was important that entire cases were observed, rather than journalists coming in for one day out of three or four.

“The problem is you need to be there for a long time, not only so that you get to see the whole progression of the case, and get a feel for the dynamics between professionals, parents, lawyers and the judge, but also so the judge forgets you’re there. It’s then you’d see how conduct of the case affects the evidence put before the court, affects how professionals give their evidence and how – and if – it’s properly heard.

“In cases where solicitors and social workers are bullied into not putting evidence they want to before the court, or are stopped from cross-examining for spurious reasons, it’s really dangerous for the system because it’s having a knock-on effect in terms of what case will be put forward on behalf of the child,” she continued. “Courts then make decisions with incomplete information. These are cases where children are at risk from dangerous decisions being made. And then you have other judges riding roughshod over parents’ rights, and if that had been reported at all…”

She also said that there are some “excellent judges trying their best to deal with difficult cases, who are very skilled and do a great job”: her view is that problematic judges are thankfully a rare minority “but one is too many given the ramifications for children and parents”.

I’m surprised she’s willing to be so publicly critical, but Ghent says she has made her opinions openly known.“The whole system becomes complicit,” she says. “It’s a human reaction to want to avoid conflict. “You need a complaints mechanism beyond judicial review. There needs to be an accountability mechanism. Because you have judges who are conducting family hearings in camera, and in courts that are open, you don’t get away with that.”

Although she said there is some excellent reporting and it plays an important role in terms of informing the public, Ghent is not uncritical of the Child Care Law Reporting Project: “What’s missing from the reporting is an analysis of the atmosphere (in court),” she said. “Where the judge’s conduct is relevant to how the case has proceeded and if that conduct is problematic, then that should be reported to give the full picture.” She felt this was a difficult line to walk for the Project in terms of its remit and observed that it highlights a need for a wider mechanism for accountability within the courts system.

Across the river, in Seona Ni Mhurchu’s office, the solicitor recalled the reaction among lawyers and social workers when the CCLRP was first proposed: “Oh, the scaremongering!” she laughs.

I ask whether she believes the potential risks of children being identified as a result of family cases being reported have ever materialised.

Ni Mhurchu says there have been only a very few instances: identification has occurred not because of CCLRP reporting, she said, but because individual news journalists had failed to understand the law which states that no child who is in care may be publicly identified as such. She cites one case, in which a journalist reporting on the inquest of a child (who had not been not in care), wrote that they had a sibling who was fostered.
She also emphasised that there are situations in which reporting public law family cases “really matters.”

“I think the Child Care Law Reporting Project has brought to the fore the extent of child sexual abuse in our society – around 70% of my cases have an element of that in it,” she explained. In one such case a few years ago, reporting by the wider media was, she says, “really helpful.”

Is reporting worth the danger of identification, I asked?

“I think it’s so important that there is scrutiny. I think it trumps any downside.”
“Unfortunately you have to take that risk. Before (the CCLRP) here was no oversight at all. Having that journalistic oversight – it changes things. And there is an overwhelming benefit to people in understanding what is happening in these cases and how difficult social workers’ jobs are.”

Pol O Mhurchu, her father, a renowned family law solicitor in Dublin, popped his head round the door. I grabbed the chance to ask what he thinks about the CCLRP, and scrutiny of family law systems. “It’s very good idea, very important,” he said. “Because it’s starts right here. I need someone to check on me. Because it’s much healthier. I know that I need to be open to that.”

And yes, he said, he would accept the risk of a family being identified for the benefits gained through better scrutiny.

He also says that everyone involved “must make every effort to avoid it.”

Terry Dignan, chief executive of the human rights charity EPIC which supports children with experience of care, had tried very hard to arrange for me to meet some of the young people he works with, but this had unfortunately proved tricky to achieve.
Instead, I met with both him and EPIC’s head of policy, Karla Charles.

Dignan offered a surprising perspective on the right to privacy as it relates to family cases. “Talking about the ‘in camera’ principle,’ he said, “whose interest is best served? What about young people who go on social media and identify themselves as being in the care system?” Under Irish law, he pointed out, this isn’t permitted.

Of this blanket rule not to identify children who have been subject to care proceedings, he said: “You wonder why it’s being used as such a blunt instrument. Obviously, we shouldn’t be publishing the details of why they’re in care. But just the fact that they are in care – why are we increasing the stigma? Rather than reducing the stigma by normalising the fact that a child is in care.”

When I asked about the possibility of children being identified as a result of reporting, Dignan’s response was: “I have no doubt that some children feel that they don’t want it known. But others do tell their peers that they are in care.” Karla Charles then posed a fascinating question, to which of course we don’t know the answer: “It would be interesting to go to care leavers and ask, would it have bothered you to have your case anonymised and published?”

My final meeting – apart from a fascinating lunch with a group of senior family judges, which I can’t report on – was with a civil servant at the Irish government’s Department of Child and Youth Affairs (DCYA). He oversaw the recent three year funding agreement with the CCLRP.

It was this official’s perception that the Project’s reporting is “scrupulously neutral.”
“It’s more like a research project,” he said. “It’s not positioned as existing in order to call out the failings of the judiciary or others. Its reports are descriptive rather than commentary.”

In terms of people’s original fears that the Project’s work risked identifying children and families, he points out that while this is not a widespread problem, court rules occasionally already fail to prevent families and professionals being identified on social media, as people release details of their own cases across various online platforms. “Carol has established an effective protocol to ensure that the reports do not in any way identify parties and that this has been effective now for a number of years,” he said.
The DCYA has made a significant financial commitment to support the Project’s work: the benefit, the official said, is that its reports bring emerging trends in public law care cases to the attention of national media and the attention of government. “As an example, reports have highlighted the length of time children are spending in care under renewed interim care orders,” he said. “This has implications for their wellbeing and also has resource implications, so clearly that’s an issue that may require a policy response.”

And what if the CCLRP didn’t exist?

“We would miss it,” he said. “It’s a good spot check, and while it has to be seen as indicative, and as flagging issues rather than analysing them in depth – we couldn’t make policy on the basis of its findings alone – it does tell us where we need to look and where we might need to do more.”

My conclusions from my visit, are as follows:

Despite widespread initial misgivings throughout Ireland’s family law and child protection sector, the CCLRP appears to have become widely accepted as a valuable tool in holding the Irish state to account in public law care cases, and is used and appreciated by policy makers for the information it provides that is not otherwise available.

The Project’s neutrality is valued, as is the fact that it does not cherrypick the “juicy” cases, or attend only those which are highly contested.

There remains a degree of concern that children might be identified via reporting of family courts, though this has very rarely happened, and never so far as a result of reporting by the CCLRP. This may be because its reporters are specifically trained in its anonymisation protocols and also, there is no pressure of time in terms of publication, as there will always be in news reporting (though less so for longer pieces/documentaries/investigations).

There was a strong sense from everyone I spoke to that the risk of identification needs to be tolerated in order to ensure the state can be held to account for its intrusions into family life, and very importantly, in order that those who are involved in the system, and those whose policies shape it, can improve on what they do to protect vulnerable children.

Reflections

As a journalist, my job is make things that are hidden, known: to help people see what currently they don’t – or can’t.

The media doesn’t itself reform, though it may at times campaign.

So my ambition for this Open Family Court pilot – in whatever form it takes – is to allow people to understand better what they currently have little chance of grasping, because family law processes are private, and hearings are held in such restrictive conditions that despite UK journalists’ entitlement to be present in court, we are left with what I’d argue amounts to a judicial process exercised in secret.

The only consideration, in my view, which needs to be taken seriously in relation to reporting, is the risk that children might be identified. The CCLRP has two significant mechanisms to help avoid this: the distance in time between a case being heard and the reporting of it, and the fact that there is no need in Ireland to identify a local authority as the agent of the state.

My feeling is that arguments for some degree of delay in reporting may have some value in helping prevent identification, even if in journalistic terms, a time-lag is very far from ideal – if you do not report something at the time it happens or very shortly afterwards, you might easily find you can never report it at all.

But in the UK, where local authorities are the arm of the state which both propose and heavily influence drastic and life-changing intrusions into families’ lives, failing to identify who is doing what would make the exercise of reporting pretty well pointless.
Not only would it mean we could not identify where poor practice and human rights breaches were taking place, so that the prompt of public knowledge can add salutory impetus to drive change: it would also mean that councils’ good practice could never be identified either.

Next week, I’m meeting with three other journalists who between them have considerable experience of reporting on family courts, to try to thrash out what we feel might be an acceptable and useful way forward for an Open Family Court pilot.  I’ll follow that up with a blog about what we’ve discussed.

If anyone has any feedback on the findings of my Dublin trip, or constructive suggestions on how an Open Family Court pilot might shape up, I’d very much welcome your comments!

Oh, and yes, Dublin did have excellent cakes.
—————————-
Appendix

1 – Why I fought for the right to open up family courts to greater scrutiny, The Guardian, Tuesday 19 February 2019
Louise Tickle

On Friday, I was at the Royal Courts of Justice for a hearing in front of the most senior family judge in the land. I was challenging a reporting restriction order (RRO) that I believed had been made unlawfully last autumn in a Portsmouth family court. The restriction order banned the media from reporting on Southampton city council’s attempt to remove a young child from her mother, for ever.

The child had been placed in foster care in 2015. In 2017, the council applied for her to be adopted. The family law court judge ruled in the council’s favour. But the mother appealed against the decision and at the beginning of 2018 the court of appeal declared that Southampton children’s services had offered “only the slimmest of evidence” to back up its assertion that the little girl should be adopted. The judge, the appeal court continued, had “fallen into error” in analysing whether adoption would be best for the child, and his ability to do so was “compromised” by weak evidence from the local authority. It ruled that if the council still wanted the child adopted it would have to make its case again. A date was set for October. Yet, unbeknown to any journalist, during the summer the council reunited mother and daughter. A court hearing did go ahead in October 2018, however, at which the council applied for a RRO banning the publication of names of professionals who had been involved in the case, or the ages and ethnicity of the family.

Family court proceedings often cannot be fully reported and there are some good reasons for privacy to safeguard children and their families. But court of appeal judgments are in the public domain unless, as happened in October, a judge slaps a RRO on it.

I emerged from court on that day feeling furious – and frightened. It is shocking enough that family courts are not subject to anything approaching the level of openness in the rest of our justice system. But when one family judge acts, in secret, to remove a child from her mother, and a more senior family judge then says that the media may not report how weak local authority evidence, compounded by questionable judicial decision-making, has almost destroyed a family, then it’s dangerous territory.

Since then, I’ve discovered that fighting for the right to freedom of speech is scary, time-consuming and far too expensive for most people to contemplate. There is no automatic legal aid for a parent to appeal against an adoption decision. In this case, the mother scrabbled together the £60,000 to mount a legal challenge. A number of lawyers warned she had almost no chance of success. But, she told me, she had wanted her child to know that even if she failed, she had tried her hardest to keep them together.

But the RRO meant that the public would never know that a terrible judicial decision could have resulted in a child losing her relationship with her mother. And this is why, risky though it is as a freelance reporter to go to court – I stood to pay everyone’s costs if I lost – I was determined to argue the case.

I crowdfunded to cover the costs; £528 simply to apply for permission to appeal, then a further £1,199 for the hearing itself. The mother was represented for nothing by solicitors Boardman Hawkins & Osborne and barrister Lawrence Messling. My legal bill – representation was provided pro bono by human rights silk Paul Bowen QC, family barrister Sarah Phillimore and solicitors Simons Muirhead & Burton – plus the risk of paying the costs of the other parties had I lost, would have been in the many tens of thousands of pounds.

This is the price of fighting for the freedom of speech required to keep the state accountable: the cost to this mother to protect her daughter’s right to be brought up in her birth family has been incalculably more. Their story deserves to be told – and, thanks to help from so many people who believe that family courts must urgently become more transparent in their dealings, it now can be. And following this important victory the country’s top family judge has vowed to make rules covering reporting restrictions in cases involving children much clearer.

2. The Guardian view on family law: Transparency is in the public interest
15 February 2019

3. The Guardian view on the family courts: Openness is the cure, 31 August 2017
Editorial

 

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