Freedom of expression doesn’t just arrive on a bleedin’ plate

When a child’s privacy rights compete with the right to impart and receive information, sometimes, the media has to take the trouble to argue its case.

Last week I got an email from Brian Farmer, the PA reporter on family courts. He’d just been alerted to two judgments, then up on Bailii, written by Mr Justice Hayden.

One judgment told in great detail of the very serious failings of the disabled children’s social work in an unnamed local authority.

The second told of how the local authority and the Children’s Guardian had asked for the name of the council to be anonymised.

It was made clear in that judgment that the media had not been put on notice of the council’s attempt to restrict its name from being put in the public domain – the judge pointed this out, and said it should have been done. It was also clear that the judge had rigorously tested the local authority and Guardian’s barristers as to their evidence on the risk of identification of the children if the council should be named, and whether this would put them at unacceptable risk of harm. These are the right tests. And he decided, on balance, that the council should remain anonymous. This means that he felt the public interest was outweighed – but, I sensed, only just – by the risk of harm to the boys.

One sentence in particular stood out from the judgment concluding that the council could not be identified – the judge said:

“I do not think that I have ever had to criticise a Local Authority to the extent that I have found it necessary to do in this case.”

Mr Justice Hayden is a very experienced high court judge. As such, this sentence is remarkable. And it meant I felt that the media absolutely had to try to persuade him that the public interest was so overwhelming it had to be named. At that stage, I didn’t know which council it was. Nor did Brian Farmer, who felt just as strongly as I did that we had to challenge the ruling.

Despite the care Hayden had very evidently taken to take account of Article 10 freedom of expression rights – which is not just the right of the media to impart, but of the public to receive, information – I was pretty indignant. The outcome for two children had been disastrous, in very large part because of really culpable failings of social work practice in the team which dealt with disabled children. These failings had been going on over a long period of time. The family had, again, not solely, but substantially as a result of these failings, ended up being split apart. Two brothers who had dearly wished to grow up together, now could not. One of them, a severely disabled child, now lived in an institution. This, absolutely tragically for this child, had not needed to be the case. It was, in short, an absolute shitshow, and Hayden did not hold back from saying so. I felt we had to challenge his ruling on anonymising the council – and I also felt he should not have taken that decision without involving the media. Somewhat ironically, I pointed out to the judge in an email, his ruling on banning the name of the local authority without the media having been in court to contest it was handed down on the very day the President’s consultation for his Review into transparency in the family justice system closed to submissions.

In the same email, I also asked if he might be willing to take down the judgments so that, together with the counsel for the various parties, Brian and I might be able to try to locate certain details that were particularly identifying, If they could be removed, thus mitigating the risk of the children being identified if the council was to be named, we might, I reasoned, stand a better chance of making a successful case.

Very helpfully, Hayden agreed, though only the substantive judgment was taken down off Bailii. The one which detailed the reasons why the press could not report the name of the council remained up – this still had quite a lot of detail about the case. But very far from all of it. The judge also immediately listed a hearing for the media to make its arguments for 2pm on Monday 18 May.

Meanwhile, Brian had managed to identify the council without needing its name, just from the detail in the judgment. I’d tried, but hadn’t managed it, but he is a better Google researcher than me, and the judgment had specified there had been previous media coverage of this family.

Last Thursday, he and I had a Zoom meeting with the advocates. We realised quite quickly that it wasn’t going to be possible to remove anything from the substantive judgment that would make much of a difference to the level of risk that the family might be identified, should the council be named. So that was a dead end.

The next day – last Friday – Brian wrote to the judge setting out his arguments, and after doing my nightmare afternoon session of ‘home-learning’ with the kids, I managed to send mine in too at just after 6pm. I’d used the time between the advocates meeting and Friday to do some research. And I found out that Ofsted’s most recent full inspection, just 18 months before, into this local authority’s children’s services had found it to Require Improvement in all areas. Inspectors had also been highly critical of its disabled children’s social work team. Extraordinarily, their criticisms were virtually identical to those that the Guardian and the judge had identified, and which had led to such a terrible outcome for the family.

This felt really important, and I suddenly felt that maybe we had a chance.

There had been a recent ‘focused’ inspection into the local authority too, late last year, which had been much more positive. But it hadn’t looked at the disabled children’s social work team.

Thanks to remembering the advice of an editor I’ve worked with for years – Patrick Butler, social policy editor of the Guardian, who once told me that council scrutiny committee meeting minutes can be very revealing – I had a look to see what the local authority’s councillors had been hearing about its children’s services department. Unsurprisingly, they’d been told about the progress that had been made as detailed in the latest Ofsted letter. So, I surmised, they would be feeling quite reassured that things were on the up. There was nothing to tell them the information that was crystal clear from the judgement – that practice was still poor in the disabled children’s team, which dealt with some of the most vulnerable children in the area.

This, I felt, meant that it was even more important that the council was identified – to councillors, but also to the parents of disabled children in that area, and to professionals such as teachers, GPs and safeguarding leads. Also… the voters! They needed to know. Otherwise, how could they hold their council to account?

I wrote all this down in my email to the judge. I’ll do a separate blog tomorrow on the arguments made in the hearing – I have Hayden’s permission to report that level of detail – but for now, all I need to say is that we all convened at 2pm on Monday just gone, and Brian and I made the best case we could. We asked to be able to name the council in the public interest. We did not ask to be able to name the social workers. (They may have done a very poor job indeed, but there was no question of anyone having been either dishonest or fabricating evidence or having done anything else of that nature. That sort of thing is, I think, probably the only situation in which I would now seek to have a social worker named.)

Hayden said he would write his judgment and have it ready for end of play the day after (ie yesterday) and we all had it through at around 6pm. I think it’s important to state that at a time when the family justice system is working above and beyond to make decisions for vulnerable children – who must be the urgent priority – it is a testament to the judge’s commitment to both get this decision right and get it out there as quickly as possible that he a) convened a hearing very fast in what I’m sure is a full list and b) turned a complex judgment dealing with finely balanced competing rights around so very quickly.

It’s very interesting to me that Hayden makes it clear that there was no intention to exclude the media from the initial hearing where submissions were made that the name of the council should not be made public. The local authority barrister had, in an oversight – I imagine, probably caused by sheer pressure of work at this incredibly busy time – not put the press on notice. Once the judge had realised that, I actually think he should not have gone ahead with the hearing. But…. the family justice system is horribly, horribly stretched. All the advocates were there. Listing time is hard to find, I imagine. I am not inclined to cut judges much slack, but at this very particular time, when everyone is grappling with remote hearing arrangements, I imagine it is hard to keep your eyes on every ball and make the decision that everyone agrees with all the time. So, maybe the learning should be this for the future – advocates, the media has a right to know if you want to restrict the name of a local authority that is being criticised, and judges, please please don’t hold hearings on such applications if you realise we don’t.

Part of the reason I say this is principle. But part of it is distinctly practical. The media not being put on notice from the getgo has resulted in a bit of a mess.

Yesterday, the Daily Mail put out a piece based on partial information from the only judgment that was still online, ie, the original judgment that restricted the name of the council from being being published. Of course the fact that a judge had banned us from publishing was high on the list of complaints. The Mail piece didn’t explain that the judge had specifically invited the media to make their case if they wanted to report.

Screenshot 2020-05-20 at 15.14.11

And nor did the Mail bother to do so. Sure, it takes time and effort – and frankly a bit of journalistic research – to fight effectively for freedom of expression, but if I, a freelance journalist, unfunded (because uncommissioned on this story) can do a bit of Googling into a local authority’s Ofsted ratings and make an argument for Article 10, then a well funded paper like the Mail can too.

Still, at least that piece didn’t, I think, contain any inaccuracies.

This morning however, the Mail ran a piece by former MP John Hemming about secret family courts. I don’t object to that. I deplore the secrecy of our family justice system too. What was absolutely appalling was the headline, which blared:

Screenshot 2020-05-20 at 15.08.57

Hemming wouldn’t have written the headline. But whoever did was completely and utterly wrong. Whatever the failings were of the disabled children’s social work team, they did not include sending a child to live with a paedophile. Nor, according to any information in either judgment, had either child indeed ever simply ended up living with a paedophile.

I read that headline and just put my head in my hands. Then I commented below the line. Then I emailed the journalist who wrote the Mail’s piece yesterday. “It will be enough what the council actually did to to fail this family, surely! We weaken our case for more scrutiny of family courts if we report what happened inaccurately.” I wrote. “Could I persuade you to ask that this headline is altered so that it doesn’t go further than the actual facts of this case?” I understand he has passed my email on to the managing editor who deals with such requests.

So, I can now reveal – actually, I tweeted an hour or so ago – that the council involved is Haringey. Here’s the judgment explaining our arguments and where Hayden decides that the council can be named. More to come on why it mattered that we could say so – Haringey has a long and uneviable history in terms of child protection. This blog is about the process that the media had to undergo to be able to reveal it – and to show how a series of events came about, which has led to vociferous protests about secret family courts, when in fact, a judge had made it clear that the media could challenge the restrictions he had imposed. In fact, certain members of the media actually had contested his first determination, and were in the process of succeeding in the attempt when the Mail ran its article without taking the trouble to make the same effort.

Justice delayed by, ooh, all of a week was not – in this particular case – justice denied

Ends

 

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