Posts by Louise Tickle

Freelance journalist, Orwell Fellow, Paul Hamlyn Foundation grantee

Advertising a child – where’s the privacy in that?

Guest post by foster carer Martin Barrow

Getting the balance right between privacy and public scrutiny in family law is absolutely critical. The state’s intrusion into family life must not go unchecked but poor decisions are less likely to be challenged if the public is deliberately excluded from the process. Those responsible for judgments that may tear families apart say reporting restrictions are vital to protect the identities of some of society’s most vulnerable.

Let me introduce you, then, to Jay. He has been in care for two years and lives in London. I can tell you that when he first moved in with his foster carers he was withdrawn and struggled to communicate. He wouldn’t let people touch him but would push them away. He would not ask for food, even if he was hungry. It is clear that he suffered severe neglect in the first two years of his life.

Jay has no close relatives who are able to care for him long-term, so children’s services are now seeking an adoptive family for him. He is subject of a Placement Order. It is a reasonable deduction, I believe, that conventional means to find an adoptive family for Jay have failed, for whatever reason.

I have never met Jay. But I know all these things about him because his story appeared in a national newspaper, the Daily Mirror. The article (which you can read here ) includes a number of photos of him with his foster carer, who is also named. The internet being what it is, Jay’s story and pictures will remain in the public domain forever.

Jay was featured in the newspaper during National Adoption Week, an annual event to raise awareness of adoption and to encourage more adoptive families to come forward. His case was put forward by First4Adoption, the national information service for adoption. The service is managed by Coram and Adoption UK and funded by the Department for Education.

Gemma Gordon-Johnson, Head of National Programmes at First4Adoption, assures me that “all relevant consents and authorisations were obtained” in relation to Jay’s case and one other case also featured in the Mirror the same week. Gemma also says that best practice dictates that at least one birth parent should be informed, although this is not a legal requirement.

I am both a foster carer and a journalist, so I know that a decision to identify a child in care is not taken lightly. There are no conceivable circumstances under which I would be able to identify any of our foster children or the particulars of their case in an article or on social media. This would apply as strictly to those children in our care who have been approved for adoption as to those whose futures have yet to be decided by the family court.

Complex issues

Yet here is a newspaper article, available to millions of readers, which gives intimate details about the early life of a vulnerable child. By implication, it also makes serious allegations of neglect, which may, or may not, have been put before a court of law.
I am sure that this initiative has the best of intentions and I hope that there is a happy ending for Jay. But it does raise complex issues about the circumstances under which children may be identified and their cases made public. In this instance, a joint decision was taken by a local authority and other agencies involved with Jay that this was in his best interests. Jay himself is too young to be able to give informed consent, of course. At his age, he cannot be expected to understand the implications of what has been done in his name. However, he will have every right to ask questions when he is older if this newspaper article is found by schoolmates or even a prospective employer.

Breaching a child’s privacy – who gets to decide?

More broadly, how can we reconcile this practice with the normal restrictions and culture of secrecy that surrounds our family courts? Is a last-ditch attempt to secure an adoption justifiable grounds for what does amount to a breach of privacy (the child’s, his birth family’s and, potentially, his adoptive family’s)? The local authority may have parental responsibility but this does not necessarily mean it has the right to breach confidentiality in Jay’s supposed best interests.

How was this decision taken and who was ultimately responsible for signing it off?

These are important questions as we begin a broader conversation about what we must do to prevent miscarriages of justice in family law. Nowhere is this this more urgent than in fostering and adoption.

These have become increasingly marketized as authorities try to find a good, permanent home for a very vulnerable child, an increasingly rare commodity.

My concern is that we are drifting towards an American model, where children are advertised with scant regard for their right to privacy. Yet, at the same time, the process that leads to a child being permanently removed from their birth family is becoming more secretive and more difficult to unpick.

Austerity, which has brought punishing cuts in funding for children’s services, means cases are more likely to be poorly prepared. Cuts to legal aid mean families find it increasingly difficult to get the legal advice they are entitled to in court.

It would be easy to dismiss Jay’s story as a misstep by an overenthusiastic PR during an adoption themed week. But I think it raises profound issues about who decides what information we have access to in a family court and why.

As he grows up, Jay may be happy to share his experience of care and to talk openly about why he was removed from his family. On the other hand, he may feel that he wants to leave this behind as he builds a new life for himself.

But decisions taken by grown-ups when he was too young to have his own voice have compromised this choice.

Martin Barrow is a foster carer and former Times news editor. He tweets at @MartinBarrow

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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

Second Open Family Court workshop – London

Workshop organisation is galloping ahead – I’ve just confirmed a London date for the second Open Family Court workshop, which will be held on the afternoon of Saturday 8 December. It’s a venue just off the Strand, so very central.

Family members, adopters, adoptees, care leavers, social workers, journalists, family lawyers, academics and campaigners, who would like to attend to discuss ways towards more openness, and thus, hopefully, better scrutiny and accountabilty in the family law system, I’d be delighted to see you there.

Send me an email: openfamilycourt@gmail.com to register your interest –  it’s  really helpful too to have a brief precis of your interest in the project.

Hopefully see you on Dec 8th!

Louise

 

 

 

First Open Family Court workshop announced

I’m thrilled to announce that the first of four Open Family Court workshops will be hosted by the Social Justice Research Group at UWE Bristol.

It will run on the afternoon of Saturday 3 November, and as promised in an earlier blogpost, there will be cake (or possibly a selection of gingerbread Cyclops, depending on whether me or the kids get to the baking cupboard first).

cyclops.jpg

 

Huge thanks to Professor Lauren Devine, the Group’s director, who has very kindly made the space at UWE Bristol available.  Lauren gave the keynote address at the Transparency Project’s first ever Child Protection Conference, Is the Child Protection System Fit For Purpose, which I attended back in 2015; she made a compelling presentation on Policing Parents, Protecting Children: Rethinking Child Protection Strategy, which was instrumental in me becoming deeply involved in reporting on family law, so it feels particularly fab that this first Open Family Court workshop will be the inaugural event hosted by her new Social Justice Research Group.

The Group was founded in 2018 to research and report on contemporary issues of social justice, and its work is co-led by Stephen Parker and Elizabeth Green. It is currently researching vulnerabilities and hidden vulnerabilities in child protection, funded by grants from the Nuffield Foundation and the Economic and Social Research Council.

In its projects, ’Care Cases Crisis’ and the ‘Risk of Risk’, the Group’s researchers are looking into the rise in care order applications in the family courts, and the legal, ethical and statistical issues arising from the use of risk algorithms in identifying families for state intervention.

Workshop structure and purpose

Workshops will have a maximum of 20 people, so that everyone can participate fully.

I’m hoping for a mix of people with different experiences of and perspectives on family law as its practised today: family members, care leavers, foster carers, adopters, adoptees, social workers, lawyers, experts, and social work and legal academics.

I am hoping to create a specific forum where children’s voices can be heard, but for this workshop it’s important that everyone who attends is over the age of 18.

The idea is that we will explore what greater transparency could mean for the family law system; what people would like to see changed about the way that those working in family law are scrutinised and held accountable; how people perceive the risks of greater openness, so what we are scared of; and, the elephant in the room question… what degree of risk might society be willing to accept to achieve a more visible, open, accountable and robust system that engenders greater trust in those who use it, and which therefore makes better decisions for all children and families.

I already have a list of people in and around Bristol and the west country/Wales who have  approached me to say they’d like to take part, but there are spaces left and I’m particularly keen to hear from more family members with experience of both private and public family law who might like to take part, as well as from family solicitors, barristers and children’s guardians.

If you’re interested, please email me on openfamilycourt@gmail.com, and I’ll be in touch.

Beyond the blame game

Ryan Wise, a social worker and practice development manager at the Social Care Institute for Excellence, replied via Twitter when he first heard about the Open Family Court project in the first couple of tweets I put out. He had some concerns about the impacts more transparency might have, and said so.

I asked him if he’d take a look at the launch blogpost, to which he very kindly responded by email, as follows:

“My interest stems from practice… I am keen to think more widely about how organisations can … improve to ensure the experience of children and families in the system is both proportionate and helpful. I am currently thinking about how to develop ideas of co-production into social work practice. I am therefore interested in this project… as I said on Twitter, I do have reservations about how greater transparency to courts in order to achieve accountability may lead to more problems but that is not to say I don’t appreciate the possible benefits. This is definitely is an area which needs greater discussion and debate and I would love to be a part of that.”

We ended up having a phone chat, and rather than writing a blogpost, I suggested we might post a quick overview of our conversation, which was illuminating for me and touches on important themes that I’ll want to draw out in the workshops.

These aren’t our exact words, but will hopefully give a sense of what was said. Ryan has seen it and agreed that it’s an accurate representation.

_____________

Ryan “There is so much anxiety and pressure in the child protection system that anything about extra scrutiny and openness can feel overwhelming. But improving what goes on within the system is important because it’s also clear that numbers of children in care are rising, so the stakes for families are very high.”

Louise “What do you think that social workers’ main questions might be about greater transparency around what goes on in family law?”

Ryan “‘What does transparency mean in practice?’ would be one question I’d ask. ‘What is more transparency trying to achieve?’ is another.”

Louise “Yes! These two questions are absolutely central to the project. Thanks for encapsulating them so neatly. I’ll use them in the workshops.”

Ryan “Being completely honest, there’s going to be an element of concern about where the scrutiny and accountability is going to land, if there’s more openness around what social workers do. The child protection system is complex, and it’s also flawed, and that’s increasingly because of perhaps not enough money going in at an earlier stage. So I think a major concern social workers might have is, are we laying ourselves open to lots of scrutiny at a late stage, when there are things many of us may well not agree with in the ways we’re often forced to work. Social workers can be left with no option but to do their best within a system which has many elements they may not agree with.

“We can’t always do the social work we know would really help, and that’s because of resource constraints. That means that the idea of hauling social workers over the coals for their recommendations to a court at the end of a process would worry me. Because social workers know the flaws. Social workers are working with what they have. It’s fair to say that I have concerns about the quality of some social work, but ultimately it’s the system that needs scrutiny, not the final threshold recommendations for a child who by the time we all very reluctantly end up in court, is in a situation where there are huge concerns for their safety.

“By contrast, having greater transparency around the culture and context of what goes on •overall• in the family courts would be useful in enabling better scrutiny of some norms that can be really destructive and can add to a ‘them and us’ mindset.”

Louise “Can you give me a couple of examples?”

Ryan “Yes. Something I’ve noticed is that the emotional impact on families of going to court can be completely disregarded by the professionals involved.  The atmosphere in court can feel formal and even frosty. Sometimes even as a social worker you feel isolated, so for families the sense of being ‘on your own’ must be far worse. I sometimes wonder if lawyers have ever thought about how it feels for a parent who is terrified that they might lose their child, to have to listen to them chat on about the next fancy holiday they’re about to head off on. Or laugh and joke about the social occasion they were at together the night before. It can sound heartless and it’s completely disrespectful to someone who’s dealing with incredibly painful emotions.

“If family courts were more open and transparent in their workings, maybe this sort of thing wouldn’t happen so much because professionals would know they were more visible and so behaviour would improve. Also, some judges are good at talking to families, but I’ve noticed that others really aren’t, which isn’t great.  Overall there can be a lot of anxiety and worry which simply isn’t addressed by the court.

“On the social work side, I think greater scrutiny could encourage practice which isn’t so formulaic and process driven. Of course we go to court sometimes because the risk is too high and so it becomes necessary, but what I’m more interested in are the times we go to court when we don’t know what else to do. We may think actually this parent may be able to do it, we just need x, y or z, or maybe more time, but in my experience, in this situation we still sometimes go to court because we feel we are encouraged to be risk averse and make defensive decisions.

“We go from child protection to initiating care proceedings because there’s a sense that “if something bad happens at least we can show we were in the court arena.” Greater scrutiny may encourage greater discussion about this slide towards court, and also encourage the kind of leadership which works to support social workers to hold more risk. If greater scrutiny can help us think more about our relationship with risk and improve our decision making, that would help children and families.

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Reminder: Open Family Court Workshops

I’m planning a series of workshops to explore how  transparency, scrutiny and accountability might be better achieved in the family law system.

If you’ve had experience of family law, whether as a family member or a professional, and would like to be involved (they will be held around the country) please get in touch with me on openfamilycourt@gmail.com.

Thanks!

Louise

New call for openness in family law

It’s over a month since I published my first Open Family Court blogpost, so this is an opportunity for me to say a huge thank you to everyone who emailed in response saying you’d like to hear more and get involved.

A quick recap on the purpose of this project as I expressed it in that blog:

“[It’s planned] as a collaborative exploration of how to recalibrate the balance between privacy in family courts – which exists for the very good reason of protecting vulnerable children – and freedom of expression, which allows people to speak out publicly about what the state has done to them, a right currently hobbled by the Administration of Justice Act 1960.”

Reasons for being open

Interestingly, just last week, The Guardian published an editorial advocating greater openness in the family court.

Screen Shot 2018-09-24 at 11.43.18

The paper’s leader writer set the need for greater transparency and scrutiny squarely in the context of soaring numbers of children in state care, the rapid rise in applications to remove them from their families, the effects of cuts to local authority budgets, and the £2bn shortfall in the children’s services budget that directors of social services have been pleading for the government to meet. Given that preventative services have been decimated across the country, that money is vital as it would allow councils to put in more early help and family support – of which I keep hearing there is all but none to be had.

The editorial concluded:

“Openness should enable, and not hinder, good practice. If people are to have views on legal aid, or adoption, or the impact of cuts, they need to know how the system works. Before the crisis in the family courts can be tackled, means must be devised for it to be seen.”

I think that’s right. We cannot, as citizens, have an informed view on what is done in our name, in a legal arena where some of the most drastic intrusions possible are visited upon families by the state, if we are not allowed to understand how that system works in practice.

Want to get involved?

There are several ways you can contribute to the thinking I want to generate through this project, and I’d be thrilled if you wanted to take part.

1 – Chat to me on Twitter on @openfamilycourt. I’m taking notes of people’s thoughts, arguments and concerns, which will inform the project as it progresses.

2 – Would you like to write a blogpost in response to the aims of this project? Let me know on openfamilycourt@gmail.com

3 – My intention is that there will be two workshops before Christmas. These are intended to draw out and draw on people’s expertise, ideas and experiences in order to address the conundrum of how do we get to a place where there is better accountability, scrutiny and openness in our system of family law – in a way that children stay safe.

To prepare for these workshops (there will be at least two in the New Year as well) I recently undertook a fascinating training session with facilitator Helene Jewell on how to run a session where some really deep, exploratory thinking can be done, and hopefully some radical, creative, disruptive ideas can be generated.

I’ve not done formal facilitation before, so this is a learning curve for me; I’ll do my best.

I would love each workshop to include a mix of: family members (including of course care leavers and anyone who as a child experienced the family courts) with experience of either private law or public law cases; social workers: family lawyers; academics; journalists; and charities with a relevant interest and expertise.

It might be possible to include the views of children over the age of 16, and I am still looking into how this might be done, as well as taking advice on whether I should.

If you’d like to be involved in the facilitated workshop sessions, which are the backbone of this project, please email me on openfamilycourt@gmail.com

Once I’ve organised the dates, I’ll be emailing people who say they want to attend a workshop with an online calendar to see who might be able to get to which venue (I’m aiming to hold them in different areas of the country).

Related news on family law issues

Just in case of interest, (not directly related to the Open Family Court project), in the last two weeks, I’ve written two Guardian pieces looking at different aspects of the care system.

The first was a news report on research by Professor Andy Bilson, which analysed statistics on the use of “emotional harm, or risk of emotional harm” as a reason for child protection plans across the country, and found that nationally, numbers have risen very sharply.

By contrast, sexual or physical abuse as a reason for launching child protection plans had risen only marginally. It was particularly notable that in some areas, the use of “emotional harm” as a reason for child protection intervention had risen fast, while in others, it had gone up only a little, and in others, it had fallen.

The second piece was a longer feature on the latest findings from a long-term study led by Professor Paul Bywaters across England, Scotland, Wales and Northern Ireland. The research showed that the rates at which children are living in foster or residential care are markedly different in the four areas: Northern Ireland has 35 children in foster or residential care for every 10,000 children, compared to 82 per 10,000 in Scotland, 62 per 10,000 in Wales and 52 per 10,000 in England. Those differences are huge, and the team is currently exploring why they might occur.

Letting in sunlight on family justice

 

This is the first blogpost launching my new project, The Open Family Court, which has been generously funded by the Paul Hamlyn Foundation Ideas and Pioneers Fund.

The project is planned as a collaborative exploration of how to recalibrate the balance between privacy in family courts – which exists for the very good reason of protecting vulnerable children – and freedom of expression, which allows people to speak out publicly about what the state has done to them, a right currently hobbled by the Administration of Justice Act 1960.

To realise the project’s full potential – I’m thinking of it as a quest for a solution to a so-far-intractable-but-not-impossible conundrum – I’m going to need all the help and engagement I can get from people with knowledge and experience of family law, children’s services and the family court system.

This is therefore an introductory scoot through the background to this project and the reasons for it (having just read it back, it may not feel like a scoot, but I promise I have slashed the post back to the bare bones of what I think needs saying, and am very grateful to anyone who stays the distance!)

 

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Section 12 of a nearly 60 year old piece of legislation means that anyone who describes or publishes what happens in front of a family judge risks being in contempt of court. The sanction is a fine or jail – possibly both.

The result is that if people working in the family law system – social workers, expert witnesses, children’s guardians, lawyers and judges – act unprofessionally, unethically or even unlawfully, unless a judge says it’s okay to talk about it, or a judgment is published (and the judge is the sole arbiter of what goes into that), nobody is allowed to know.

It means there is little effective scrutiny or accountability in our family courts.

It means that parents cannot protest their treatment at the hands of the state – and when you stand to lose your children, sometimes for ever, this is an extraordinary loss of your human right to freedom of speech; the very opposite of open justice.

It means that although for the most part, since 2010 journalists have been able to attend family courts, we cannot, by right, report the detail of what goes on in them – and so we can’t do our job as the eyes and ears of the public when extraordinary intrusions into family life are made and draconian actions that change people’s futures are taken by the state.

It means that citizens are prevented from knowing what is being done in their name.

Given the journalism I’ve done on issues highlighted in judgments that illustrate poor practice, professional failure, deliberate thwarting of court orders and actual human rights abuses – and the telling details I have not been able to report in cases I’ve personally observed because of these statutory reporting restrictions – I am convinced that children would be better served by a family law system that has to work with something at least approaching the degree of transparency required of the rest of our justice system – required indeed of those working across both other arms of the state.

Before I go on to explain more about my plans for The Open Family Court over the next nine months, I thought I’d recount a few experiences from my time as a journalist reporting on some of the most distressing and extraordinary events I’ve ever encountered. At the same time, they are commonplace, and endured by many people, right across society. That’s what makes family law relevant to everyone. And why it matters so much how it’s done.

 

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Three and a half years ago I pitched up at the big central family court in Bristol. I was researching a Guardian feature about cuts to legal aid for domestic abuse victims and my editor wanted me to report on what it was like for a woman trying to get a non-molestation order on her own, without a lawyer to represent her.

I’d never been to a family court before. Thanks to a hurried reading of a guide I knew there were statutory restrictions on what I’d be able to write. What I didn’t realise at the time was just how hard it would be to get them relaxed. (I also had no idea how family courts worked. It turns out there are specific “non-mol” days where these applications are heard and unfortunately I hadn’t arrived on one of them.)

For the next story I did on how legal aid cuts were affecting separating parents who were in dispute about their children, I thought I’d try asking for permission to report. Naively, I now realise, I whizzed off an email to the district judge with a polite request to let me describe what had gone on in court in a private law case I’d just observed.

Everyone would be anonymous, I promised.

Equally politely, he replied saying I’d need make a formal application – costing £155 I seem to recall – and a skeleton argument (a what? I really had no idea, but it certainly sounded like it was going to take quite a lot of time and money.)

He also asked if I had informed the the parties to the case – the mother, father and the Cafcass guardian – of my wish to write about it. They would all need to formally tell the court their view of me reporting, even anonymously, what I’d witnessed.

I groaned. Given the price tag attached to submitting a formal application (I wasn’t at all convinced I’d get it through on expenses), my lack of legal expertise or any experience of writing skeleton arguments, the inevitable acrimony between the parents involved, and most of all the timescales – journalists work to deadlines after all, and I could tell this would all take an age – doing as the judge required was a practical impossibility.

So I wrote my article with my heart in my mouth, trying to skirt around the most interesting and importantly, informative moments in court that illustrated perfectly the immense disadvantages to the father, in that particular instance, of not being able to afford a lawyer. Even so, I had sleepless nights in the lead up to publication wondering if I would be in contempt.

Since then, I have made one oral and two written applications to relax reporting restrictions in public law care cases. All were successful, but the immense amount of work entailed in the written applications – in one, about a North Tyneside woman whose son was removed at birth and her fight to get him back, this ultimately comprised eight days of pro bono support from two barristers, countless hours of my own time and an expense claim that took my editor’s breath away – means such an effort is simply impossible except for very important stories.

 

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“Annie” and her son in North Tyneside, by Christopher Thomond for The Guardian

As a freelance, what I was paid for the resulting articles didn’t begin to reflect the work or time required to get the right to publish them. Other journalists have made similar efforts: after taking considerable pains to get permission to report a case she’d seen at Birmingham’s family court, Buzzfeed UK’s senior reporter Emily Dugan’s view was that:

“Journalists are bound by their own ethics, and also strict laws on anonymity. Judges could do more in hearings themselves to make orders on the hoof to make it clear what the journalist can and can’t report, after hearing brief arguments. Anything more costly or time-consuming than that feels more prohibitive than court reporting should be in a democratic country.”

 
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On my desktop at home, I have a email folder where I file all the many messages I’m sent by parents who say their children have been removed unfairly. They detail not only the heartbreak and fury, but also the sense of injustice they feel at a system they believe is stacked against them and which in some cases, they say, has seen professionals behave unlawfully in breach of their human rights.

Whatever the rights and wrongs of each complaint – and resource-wise is it impossible for me to investigate almost any of them – it has become very clear there is an upswell of distrust in local authority children’s services in general and in social workers in particular.

The fact that nobody is legally permitted to speak publicly about the evidence given about them in court, and how the processes can – and demonstrably have in some cases where judgments are published – unfairly disadvantaged families, significantly compounds people’s rage and indignation.

It’s obvious why: imagine the state removes your child and has it adopted without your consent. Then imagine you’re told you can’t complain about a legal process that you feel has been handled unfairly, even unlawfully. Outrage is piled upon grief when families can’t protest their treatment at the hands of the state. Families are, by law, rendered voiceless and so end up powerless to challenge and change a system which they – with varying degrees of justification no doubt, but sometimes entirely correctly – believe is shockingly unjust.

And so mistrust grows, and families that need help don’t believe they can risk asking for it. Vulnerable children then end up at greater risk… and the cycle implodes upon itself, trailing ever greater destruction in its wake.

 

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Back to the Open Family Court.

This project follows and takes inspiration from a significant evolution in thinking about transparency in the family courts that has taken place over the past several years.

The dilemmas around transparency were already being articulated in 2011 when the then president, the late Sir Nicholas Wall, wrote in his preface to the abovementioned media reporting guide:

“There is no more difficult issue in family justice than the reporting of cases. There is a tension between concerns about “secret justice” and legitimate expectations of privacy and confidentiality for the family. Both standpoints are valid, and the question is whether they are irreconcilable.”

Sir Nicholas went on to say that the publication of the guide –

“…is all the more timely as the debate on increased transparency and public confidence in the family courts moves forward. It will serve to inform future consideration of this difficult and sensitive area, including the questions of access to and reporting of proceedings by the media, whilst maintaining the privacy of the families involved.”

Real progress towards greater openness and understanding of what happens in family law was propelled by the subsequent 2014 practice guidance issued by the immediate past president Sir James Munby, telling circuit judges and those more senior that they must, unless there are compelling reasons to the contrary, publish their judgments in family cases.

That followed his previous year’s “View from the President’s Chambers”, in which Sir James said he was:

“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.”

I have argued before that while this is a big step forward, it is nothing like enough to ensure proper scrutiny and accountability in our family courts.

As a journalist, I don’t want to have to rely for my reporting on what a family judge says in her judgment: in no other situation do I take any arm of the state at its word without the opportunity to evaluate its account against those of others who have been involved. And in any case, recent research has shown that in some areas of the country, judgements just don’t see the light of day.

Also… what if a judge behaves badly? What if she gets things wrong? It happens. Why shouldn’t we know?

And if I was a family member involved in a private or public law case, I’d want to have the choice to give my own account of the process by which life-changing decisions were taken about my family’s future.

It’s important to note here that when asked to relax statutory reporting restrictions, judges have often agreed, at least in part. I’ll give a couple of examples.

  • After barrister Lucy Reed and I worked together on a way to anonymise the North Tyneside family that was both editorially acceptable and addressed the concerns of the council, in 2015 Mr Justice Bodey published his judgment allowing me to report using the name of the council in question, and quoting from the case papers (which Judge Simon Wood had earlier allowed me sight of, against the wishes of the local authority). I did not seek to name the family. This is important, and a point I will return to in later posts.
  • Against the council’s wishes, Judge Stephen Wildblood last year allowed a joint application by me, Buzzfeed UK and BBC Gloucestershire to name Gloucestershire county council in a case where a special guardian wished to make clear her dismay at how her family had been dealt with. We did not seek to name the family.
  • In 2013, Sir James Munby, president of the family division, in a case which he said “raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media,” allowed a father to freely publish a video of his one day old baby, who had been removed from his care, while at the same time restricting the publication of the child’s name.

 

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It is clearly not going to be easy to find a way through the dilemma of how to enhance transparency and openness in family courts while still ensuring children’s privacy, but I believe there are huge strides that can safely be made.

Not least, changes are needed within the cultures of social work and family law. Despite some fabulous thinking that’s now being done [declaration of interest: I am a member of The Transparency Project, a charity which seeks to promote openness and understanding of family law and whose legal and academic members spearhead many of the discussions in this field] these are professions that often seem chary of any light being shone on their daily working practices in and around family courts.

My plan is to run a series of consultative events and workshops over the next nine months, drawing on the knowledge, experience and insights of family members, care leavers, social workers, adopters, foster carers and legal professionals who may already be engaging with these issues in their personal or professional lives, via blogs or on social media.

Through facilitated sessions, I’m hoping to create an environment where we can challenge and creatively disrupt existing ways of thinking about privacy and free speech in family cases; unpick seemingly intractable problems to work out what they consist of today, as opposed how they looked nearly 60 years ago; and generate thoughtful and safe solutions to a conundrum caused by a law that many feel is no longer fit for purpose.

So… it all kicks off properly in September. Anyone who would like to take part – there will be cake…

 

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… and more importantly, some travel expenses are available for family members who may find it hard to afford the cost of attending.

If you’d like to get involved, please email me at openfamilycourt@gmail.com – if you could explain your interest in the issue, that would be brilliant, and I look forward to hearing from you!

Louise