Posts by Louise Tickle

Freelance journalist, Orwell Fellow, Paul Hamlyn Foundation grantee

A big day in court

It’s now just over two weeks since I arrived, a little shaky with excitement and nerves, at the Court of Appeal to argue that a reporting restriction order (RRO) had been made unlawfully last October in a Portsmouth family court.

Just before the hearing, in the coffee shop opposite the Royal Courts of Justice there was a lot of hugging of people I knew and also of people I’d never met… there’s quite a giddiness when you’re indignantly, furiously and yet also hopefully, about to challenge an order made by a deputy high court judge in front of the most senior family judge in the land.

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If you follow me, @svphillimore or @georgejulian on Twitter, you’ll know that the appeal was successful: there’s already been a lot of national and online coverage of the hearing itself, and reporting by the BBC’s Sanchia Berg of the earlier successful appeal of an adoption placement order by a very courageous mother, which the media had been banned from reporting under the RRO.

Before I wade into what happened on the day, there are some very important thank yous due.

I am more grateful than I can say to every single person who donated to the two crowdfunders. I didn’t have a spare couple of grand lying around to pay the extraordinarily high fees required simply to seek permission to appeal (£528 ) and then  for the appeal hearing itself (£1199). I also had to cough up for a transcript of the Portsmouth hearing at which the RRO was wrongly made, without which Lord Justice Peter Jackson would not have been able to assess whether my application to appeal stood a realistic chance of success. That was another £120. There were considerable postage costs on thick bundles of paper that had to be served on the various parties at various stages; my printer kept running out of ink;  I also covered travel expenses for my unbelievably fabulous pro bono legal team to get to the appeal, as I really didn’t see why they should actually pay to volunteer their time and expertise. So to everyone who so generously contributed to the crowdfunding effort, please know that this appeal couldn’t have got off the ground without you.

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The commitment of barristers Paul Bowen QC and Sarah Phillimore to the case was extraordinary. Quite apart from the endless hours of preparation they put in, Paul interrupted a half-term family holiday to travel hundreds of miles to London to represent me on the day of the hearing, and Sarah gave up a day when she could have been working to attend. It was thrilling, and very educational indeed during the preparation of our submissions, to see top class legal minds at work on issues of principle and practice. I’ve learned such a lot and feel very lucky indeed to have had this opportunity.

Many thanks also to Parvais Jabbar and Kate Bolton at solicitors Simons Muirhead & Burton, who eased the huge burden of administrating the appeal which was, as my Twitter feed probably demonstrated, driving me almost literally round the bend.

It became apparent to me early on that the mother was unable to afford any more money on legal fees – it had already cost her £60,000 to get her daughter back. This child arguably should never have been in care in the first place, and certainly not placed for adoption on what the appeal court said was “the slimmest of evidence”. So a huge shout must go to Emily Boardman, partner at Boardman Hawkins & Osborne solicitors, and barrister Lawrence Messling, who represented the mother in this case for free, made sure she felt safe, and that her voice was heard. And also, most importantly, thank you to the mother herself, for bravely agreeing that we could report what had happened to her family over three extremely distressing years.

Finally, to George Julian who travelled from Devon to London, unpaid, to live tweet the hearing, and to everyone who came to watch in the public gallery on 15 February – I appreciate enormously you taking the time out of your day to support the appeal.

The hearing

Grand doesn’t begin to describe the surroundings as I walked through the Royal Courts of Justice and into court 33. Entering court, I felt as though I had landed in an 18th century oil painting:  glowing wood panelling lined the courtroom, a high arched window spilled light onto the bewigged heads of the barristers, and blue velvet drapes formed the backdrop to Sir Andrew McFarlane and Lady Justice King, who emerged into court to take their seats on somewhat ordinary office-style chairs (the only not-grand things about the court – I’m used to Bristol where there is smart scarlet leather!) Both judges wore funny little yellow neck-ties which oddly reminded me of the citron flash on the head of a goldcrest.

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© Mark Hope via Flickr

For anyone who wants to follow the Twitter live stream in which George Julian explains all the main points covered by Paul Bowen QC, Lawrence Messling and the BBC’s barrister Adam Wolanski – the BBC applied to join the appeal at the  hearing, and thus became co-appellants – please see the hashtag #RROAppeal.

I have applied for a transcript of the whole hearing, which I will post on here when I receive it for anyone who wants to read the blow-by-blow account.

In short, my team was arguing for the following:

1 – That the RRO imposed by HHJ Levey should be overturned, so that the media could report the important public interest elements of a case that had been published by the Court of Appeal the previous year. This related to a mother’s successful overturning of an adoption placement order, together with the final outcome – that Southampton council appeared to have recognised the weakness of its case for removal and adoption, and allowed the little girl to be reunited with her mother. But only after untold anguish, three years spent in foster care, and legal and other costs that would be utterly impossible for many families who find themselves in care proceedings: challenging the adoption placement order required this family to liquidate all their assets, empty their savings accounts and work incredibly hard to keep paying the bills.

It was important that we were able to report everything in the original Appeal Court judgment so that the full import of what had gone wrong could be appreciated: for instance, a new baby had been born. Had the adoption placement order for her older sister been left standing, the council would have been far likelier to have taken an interest in the newborn as well.

I argued that the Court of Appeal should say that the RRO had been “unlawful”. The two Lord Justices cavilled somewhat at this, and were only prepared to say that it was “wrong”. As Paul Bowen had pointed out in our submissions however, the Court of Appeal is only empowered to overturn orders that are unlawful, so I wonder if the fact they were only prepared to say it was “wrong” was a gloss put on things to soften the embarrassment to the original judge.

Prior to arriving in court, we had managed to secure agreement from the other parties to 95% of the new order we wished the Court of Appeal to make: however, it’s important to realise that a hearing was in fact needed, not only because an RRO is an order against “all the world” and cannot be dealt with “on paper” (ie, without a hearing) but also because I wanted to raise a number of other points that had been recognised by Lord Justice Peter Jackson when he made the order giving me permission to appeal.

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2 – We argued that in future, any judge, when faced with an application to lift reporting restrictions, should be clear that the privacy which is the default setting for family courts is only the “starting point” for the balancing exercise which they must then undertake between Article 8 privacy rights and Article 10 freedom of expression rights.

A “starting point” is different from a “presumption” of privacy, which implies that any application to remove some degree of that privacy must first overcome a pre-existing hurdle.

3 – We said we were deeply worried about aspects of the President’s recent  Practice Guidance on anonymisation of judgments. National media outlets have protested at the considerable extra restrictions on transparency and accountability that this guidance gives rise to. I have also been critical in my latest Family Law journal column. Paul Bowen pointed out that, for instance, in the Guidance, the President has directed that judges only identify a local authority where “naming the LA would carry with it no risk (my italics) of identifing the children….”

There can never be any guarantee of “no risk”, so the inevitable consequence of this, if judges follow it, is that local authorities will become immune from ever being identified – and where is state accountability then? How could local and regional media ever report on what their local authority is  doing? How, for instance, could Herefordshire local media – or indeed national media – ever report the shitstorm that has clearly gone down in that local authority’s children’s services over many years, leading to big financial awards for human right breaches? They simply would never know about it.

The idea that such poor practice should be conveniently hidden in this way is shocking to me. It is chilling not only to journalism but also to democratic accountability more generally.

Importantly, it does nothing to protect children – quite the reverse. However well intentioned, if there is state-sanctioned blocking of scrutiny and accountability for government when it makes drastic intrusions into our lives – and makes terrible mistakes – then the decisions made for vulnerable children will become less robust, not more. And trust in the state will not only dissipate further than it already has – families will truly fear it, and regard those working in it with contempt.

Encouragingly, however, the President indicated during the hearing that he would look again at his Practice Guidance in case there had been some “infelicity” in certain aspects of the phrasing. I really hope that he does.

4 – We also said that we wanted clear instructions for judges, court staff and journalists as to how to approach requests for the lifting of reporting restrictions. I never again want to be in a court where neither the judge or barristers appear to have the remotest clue as to the lawful process that must be undertaken if restrictions on the human right of freedom of expression are to be imposed.

Lawyers must evidence rather than simply assert any concerns that publishing details will lead to risk that a child or family will be identified, and then evidence rather than simply assert that this will harm that child or family. As Lady Justice King indicated during our hearing, it is not enough in law to simply say the words “jigsaw ID” for a judge to slap on reporting restrictions.

The judge should then hear evidence from the media, if they wish to offer it – as it’s advisable they do – as to why it is in the public interest to report the details they seek to  publish.

The judge should then use this evidence in deciding whether the risk to privacy is so great, and the harm that would arise so significant, that the weight of evidence that reporting is in the public interest – freedom of expression – can be legitimately overridden.

We put forward a series of suggestions as to how court staff and judges might enable the smooth running of such an application by the media, and I was incredibly heartened that the President took the need for this on completely on board. I have been told that he will issue draft guidance for consultation in March, and will welcome contributions from any journalist, legal blogger or other interested party. His hope is to issue the finalised Practice Guidance in June.

It’s not quite open justice – yet – but this new Guidance will hopefully ensure that judges, lawyers and court staff – who are, to be fair, very rarely faced with this sort of application – know what to do when such requests are made.

Applications to lift reporting restrictions are not an adjunct to the “real deal” of the case that’s being heard – the human right of freedom of expression is essential to the healthy functioning of the state, and all the more so when family courts operate effectively in secret.

Coverage of the day

While I was too high on adrenalin following the hearing to type a single word afterwards, Sarah Phillimore managed to be rather more grown up about it all and blogged that very night. Her post includes her very useful contemporaneous note of the hearing.

Lucy Reed, chair of The Transparency Project (of which I’m a member) also blogged that evening.

A report by Sanchia Berg of the mother’s case ran on the PM programme and 6 O’Clock news that Friday afternoon, as well as an article that went live on the BBC News website. The Guardian wrote an editorial on transparency which went online that day and ran in the paper on the Saturday. The Times and Press Gazette covered the appeal over the weekend.

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I wrote a comment piece for The Guardian’s Society pages the following Wednesday, and  Joshua Rozenberg covered the case in Law Society Gazette, in a piece that went up today:

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A very helpful blog explaining more about the background to the case was posted by Emily Boardman a couple of days after the hearing, and George Julian also wrote a post with her reflections. Finally – I think! – the Family Law Bar Association is going to publish a compilation of my “Appeal update” tweets, which detail my wonderment and frustration at the sheer administrative slog and cost of bringing a challenge to an unlawful order.

The result we got only came after a huge effort by many, many people who contributed in whatever way they could, whether financially, in giving moral support and encouragement along the way, or in legal expertise and passion.

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Everyone who helped did so because they felt it was important. This mother and daughter’s story was  indisputably in the public interest to understand, but just as important is the idea that  that when the state acts in private – effectively in secret – it must not be allowed do so without an absolutely rigorous adherence to the laws that protect the public’s right to know what is being done in its name.

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Family lawyers – and the rest

A guest blog by Jeremy Westhead

When I’m not worrying about family law, my day job involves working with lawyers across a wide range of disciplines. This ranges from corporate and transactional (think mergers and acquisitions), though finance (banking), tax (across multiple jurisdictions), regulation, general litigation and employment. I dread to think how many emails I send and receive from lawyers in a year, how many meetings I sit through, how many hours are spent in conference calls.

The fees we pay are in the millions of pounds per annum. On one recent transaction I paid legal fees to five firms across four different jurisdictions. When my family court troubles were at their peak, I could go straight from a conference call with employment lawyers to a conference call with family lawyers and on to a conference call with tax, regulatory and corporate lawyers wrestling with the establishment of a new company.

At work, we take painstaking care in our interactions with law firms. This consists of building a relationship with senior partners over time, from first meeting and discussion of what they can offer us, through getting references and then taking soundings with peers elsewhere in our industry. We need to understand who will be delivering the legal services we’re buying – will we just see the partner at the beginning and end, or will they be playing a more active role, demonstrating that we are an important client? Like all contracts we enter into, the formal engagement letter, in which we appoint them to act for our business, is closely read and considered and negotiated – including any fee arrangements.

Once we’ve selected a firm, we make sure there is regular feedback – both ways – as to how we can be better users of their services and how they can provide better services to us. Sometimes we’ll vote with our feet if we’re disappointed: there’s one large firm out there that’s about to find out it’s not acting for us in a matter it was hoping to work on.

It’s a small world and we are constantly asked by others in our industry for feedback on particular solicitors and law firms.

Over past few years I’ve also had the chance to engage with lawyers from a different part of the legal world – family lawyers.

This has been in respect of both post-separation finances, and arrangements for our children. I am very lucky in that I am used to engaging lawyers, and indeed have far too many lawyers in my family and friends network. That, combined with access to Legal 500 and Chambers and Partners (I am an extensive referee for both in my day job), has meant I was able to identify excellent, well-rated, family law solicitors and counsel.

Despite all that, it is fair to say that the process of engaging legal advice and representation was simply not as thorough as it would be at my place of work.

Grabbing at life rafts

At a time of emotional trauma and urgent need, this is what tends to happen: you’re given a name by a friend or contact and you cling to it. You quickly run that lawyer through the reference guides and… that’s about it. You’ve found somebody! Hurrah, your troubles are over! You cling to that lawyer like a life-raft. I signed the engagement letters after a cursory glance and filed them away.

Over many months and countless hearings, I muddled my way through and despite the occasional trip-up ended up in a good place. But I’ve learnt a few things along the way. Due to jurisdiction and availability issues, I worked with several firms of solicitors and a selection of leading and junior counsel (as well as seeing the work of multiple firms of solicitors as my former wife engaged them) – and the experience highlights some questions: would I recommend lawyer Y for more cut-throat litigation; would I recommend lawyer X for more consensual matters? Would I recommend barrister X for the lower courts or the higher courts? How would a lay client know how to really pick the lawyer for the issues at hand?

Different dynamics

Throughout I was conscious that the dynamic I encountered was very different from my day job. For a start, there wasn’t really any thought given by either side to feedback on how things were going or had gone. Indeed there was some surprise when I expressed a wish to see the final draft of documents before they went out in my name. Next, you’ve got relatively little idea of what “good” looks like (certainly at the start of the process) and you don’t know whether the lawyer is doing what they should, when they should. Add to this, as a single individual, your relative importance to a law firm is going to be far less than it is if you’re a big corporate client.

I think it’s fair to say that my former wife went through a similar experience to me, though seemed less fortunate in the sense that some lawyers she engaged seemed to lack a certain something in quality – and indeed honesty, for which I later received an apology.

As a result of my experiences, I now help to run a group for parents involved in the family court. It has over 11,000 members – a terrifying number in itself.

Unfamiliar territory

From time to time questions regarding interactions with solicitors come up. It’s worth nothing that most of these parents have never instructed a solicitor before (let alone a barrister), other than for buying or selling a house. Parents seem to be entirely dependent on the luck of the draw as to how their legal adviser engages with them, how good they are, or what level of service they receive. If they are unhappy, they don’t know whether it’s because the lawyer has let them down or whether that’s just life in litigation.

The average “consumer” of family legal services is essentially an unsophisticated buyer. They have no idea what to look for, how to check professional reputation, how to consider if this lawyer who, say, did a great job on a friend’s finances after divorce, will be a great lawyer for a disputed internal relocation. They’re unlikely to appreciate that they need a professional adviser to understand the strengths and weaknesses of a case; instead, they’re desperate for a fearless advocate who believes their version of events and will do battle for them on their day in court on that basis, regardless of the flaws.

This expectation, I’m sure, comes from what is seen in TV drama, not on prior experience or an educated understanding of what to expect if you’re involved in the family court – because how can we understand what we can’t see? An opaque legal system which makes it very difficult to report what actually does go on in court means that good information cannot drive out the bad.

Good service seems to be measured by clients, if it is measured at all, by the outcome in court, regardless of the merits of the case they are paid to advance. I am reminded up a friend who is a surgeon who some time ago pointed out that sometimes the best hospital can be one with, on the face of it, terrible outcomes – as that is where all the really tough cases are sent (it’s possible of course that league tables have improved since then, I’ve not kept current).

Where to go from here?

There is a need therefore for:

Clearer more accessible public client feedback (not just for the very top end of the profession); perhaps a tripadvisor-style website for family lawyers? Not just the solicitorsfromhell. Clearly there would need to be suitable moderation to ensure that anonymity is not lost.

Consideration should be given to more actively seeking feedback from clients at the end of every case. Whilst time and cost may limit how much can be done, perhaps it could be automated and simple. Even for very small firm / sole practitioners: you may think you know what your clients think, but you may be wrong.

More open family courts – so that what happens, what advisors do, and who has what role, are better understood so that the expectations gap is, at least, reduced.

A more open family court? Ideas from mothers who have survived the system

This is a guest blog by Ember Rose, of the group Mothers Unite. Ember took part in the first Open Family Court workshop I held at UWE in Bristol, and I’m very grateful to her for asking members of her group for their thoughts and ideas on what a more open and transparent family court might look like.

These views, clearly, come from mothers. Interestingly, at the Open Family Court workshop I held in London on Saturday, the one father who attended spoke to say that many of the concerns expressed by the women on the day were also felt keenly by fathers who had experienced the family court system. I hope to have a guest blog from fathers in the near future: if you are a father or organise a fathers’ group, and would like to offer your perspective on ways forward for a more open and accountable family court system, I’d be keen to hear from you – please email me at openfamilycourt@gmail.com.

Meanwhile, here is the Mothers Unite contribution to the debate.

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I help to run a group for mothers, 90% of whom are domestic abuse victims, have children who have been subject to or witnessed abuse from the father, and under private law are being taken through family court by the perpetrator.

We have over 1000 members and know there are many who contact other charities and organisations facing the same problems. I asked members what they thought an ‘open family court’ would look like. There were many thoughts, mainly centering on accountability for the decisions professionals make which are currently hidden and unchecked, allowing abuse to continue from the perpetrator and children to be placed in unsafe contact or even residence.

Many members have found that court professionals are uneducated in the dynamics of abuse and have attitudes based on deeply entrenched beliefs that women are vindictive and abuse rare. Many of those professionals, in our experience, appear to have a mindset that defies reality and normal life, and so the ordinary person entering family court finds they are in a ‘parallel universe’ or ‘an alternate planet’. An open court would allow some common sense and logic to enter this arena.

Some had concerns that the press would not report correctly or would base their reports on court orders which are frequently not a representation of reality, as Mothers Unite members experience it. However, others thought that this was the only way for the truth to be exposed and that they would be given the chance to speak out.

Many would not want children to be named – however most felt that the distress and abuse children are currently subject to is worse than being publicly named.
It was thought that the courts could be open to the press but perhaps not to the general public due to fear of perpetrators family and friends turning up at court.

A jury was mentioned, but there was concern that many members of the public may not have a full understanding of domestic abuse, and so the problem of victim blaming would continue.

We would like to see a panel of experts who are independent of family courts and who have an understanding of domestic abuse, child abuse and types of abusive personalities. They could be involved at an early stage of the process whereby an application is made to a family court: they could advise – as happens now – but they would be properly trained and experienced. Alternatively – or additionally – they could hold meetings with parents and children, examine the situation and family dynamics, including any relevant evidence, and then present a report to the courts. This, we suggest, would reduce the number of stressful hearings, and give the family a better and more natural chance to talk. It would also reduce the expense of lawyers, or the deeply unfair situation where one party has a lawyer, and the other is self-representing and unable to put their case well.

Other measures to ensure openness in family court proceedings could be the recording of all meetings with Cafcass, social workers, contact centre sessions etc, and transcripts of hearings to be available at no cost to the parties.

Another action that would enable more transparency is the end of ‘gagging orders’ and the threats to mothers of losing their children if they speak out. This threat, in our members’ experience, can come from Cafcass, judges, social services and lawyers. It happens like this: if a mother does not agree that a father should have contact or a child is refusing to spend time with him, then the mother is given a warning that the child’s residence will be changed to the father if they don’t support contact, and/or don’t stop talking about abuse.

In our group many have lost residence of their child for these reasons. We often have to advise mothers to continue sending a child to contact where they are being abused (sometimes very serious abuse) because there have been these threats.

Once there has been a threat – which may come in the form of a ‘recommendation’, especially within a Cafcass report – we know that losing our child is a real danger, and the aim at that point becomes not losing your child to full-time abuse and trauma. Alongside this, there is usually the accusation of ‘parental alienation’ in some form. Some solicitors tell mothers not to talk about abuse because courts ‘don’t like it’ and mothers tell us they are frequently told contact will be expected to go ahead whether there is abuse or not.

This is a use of children that is unacceptable. The general silencing of abuse victims is felt as sinister and terrifying by many victims.

In summary, it seems to our members that the fears of bad publicity and the naming of children is a risk they feel they would be willing to take, for them to have a better chance of a childhood free from years of abuse, worry and distress.

Above all, we want our children’s voices to be heard – and this does not happen in the current climate of hidden ‘goings-on’ in family courts.

Ember Rose, Mothers Unite UK

How Ireland does transparency in its family courts

Many thanks to Dr Carol Coulter, director of Ireland’s Child Care Law Reporting Project and adjunct professor of law, NUI Galway, for this guest blog.

Dr Coulter recently spoke to the Association of Lawyers for Children conference in Bristol about how the project works.  I’m also hoping to make a trip to Ireland to observe, and interview the various people involved in this particular mechanism for achieving better scrutiny and accountability in the family Courts.

For more information about the project, Dr Coulter can be contacted at info@childproject.ie.

 

Ireland, like England and Wales, has struggled for decades with the conflicting demands of the need for transparency in the family courts and the need to protect the privacy of children and their families. Reform of the in camera law (hearings held in private) was piecemeal, took place over a decade and followed two distinct paths, designed by two different Ministers, both distinguished lawyers. One was a former Attorney General, the other one of the leading family law practitioners in the country. Both of them introduced changes to the in camera rule, one in 2004 and the other in 2013. This has led to a situation where there are now two parallel regimes for reporting family law in Ireland.

Under the 2004 regime a person nominated by one of a number of bodies named in legislation (legal bodies and academic and research institutions), and approved by the relevant Minister, can attend both public and private family law proceedings in order to report on them, subject to protecting the anonymity of the parties. While the court may give directions relating to the reporting, there are no other restrictions on what can be reported. This law did not permit journalists to attend.

A law was later passed, in 2013, permitting “bona fide journalists” attend and report on all family law proceedings, again subject to protecting anonymity of all parties and all witnesses, but also subject to a long list of types of evidence that could not be reported. Penalties for breaching these restrictions are severe. This, combined with the fact that in a small country it is difficult in a contemporaneous report, especially in a regional media outlet, to exclude details that may be identifying, means that very little direct family reporting is actually done by the media.

A journalist for 30 years who specialised in legal matters for over a decade, I have  undertaken two projects reporting on family law proceedings under the 2004 regime. The first was at the request of the Courts Service, and was a year-long pilot project in 2007 reporting on private family law proceedings. A report on this project, and on the implementation of its recommendations by the Courts Service, are on the Courts Service website, http://www.courts.ie.

In 2012 two philanthropic organisations came together with the Department of Children and Youth Affairs to propose a similar project on child protection courts, and asked the me to run it. The Child Care Law Reporting Project was set up in November 2012 and has been running ever since. It involves attendance at a randomised selection of child protection court proceedings, collecting data for later analysis and also taking notes in order to write journalistic-style reports on the individual cases which are published on the project’s dedicated website, www.childawproject.ie. As well as myself as the director of this project, a small number of part-time reporters (mainly barristers with an interest in child law at the beginning of their careers) assist in reporting and collecting data.

A protocol outlines the measures to be taken to ensure that the children and their families are not identified in reports, and includes not identifying the location of the court. Because we have no agenda other than providing objective reports on the proceedings, and we report routine as well as contentious cases, we have very cordial relationships with all stake-holders in the process.

For the first three years volumes of case reports were published at three-monthly intervals. The intervals between them are now six-monthly. The project also published annual reports analysing all the data collected, and a “Final Report” in 2015 analysing the first three years’ data. It also published a special report in June 2018 on exceptionally lengthy and complex cases, with a series of recommendations for reducing delay and minimising complexity. All these reports, along with the case reports and the protocol, are on the website, which is on open access.

The publication of each volume of case reports and of the analytic reports is accompanied by a press release, with synopses of the most significant cases and a summary of the main themes emerging from our work. These receive extensive coverage by both local and national media, with interviews with the project director on both public and private broadcast media. The reports have also sparked debate in the national parliament on child protection matters, and the director has regular discussions with the Department of Children and Youth Affairs, the state’s Child and Family Agency (which takes care proceedings), members of the judiciary and legal practitioners. Our reports are used in university departments teaching law and social work.

The case for transparency and accountability in child care proceedings, where the State exercises enormous coercive power in relation to families, is overwhelming. The media plays a crucial role in seeking accountability from public bodies and institutions. In any democratic society citizens need to know and understand how the laws passed by the politicians they elect work out in practice. Without this, there can be no way of knowing whether and how they should be changed. But the media is severely restricted in terms of resources, and is unlikely to be able to station a reporter in family courts on an ongoing basis.

In my view, and in the Irish experience, transparency in child protection proceedings requires a body dedicated solely to reporting on family and child care law, which then makes the reports available for re-publication by the media. Having a single unit doing so allows for the reporting to be governed by a protocol that protects the anonymity of the children and their families, and that filters the information reported so that the media do not have access to identifying or sensitive information. Such a unit also in our case allowed for information not otherwise collected to be obtained for further analysis of child protection proceedings generally, leading to recommendations for change.

The role of the Child Care Law Reporting Project has been, in a sense, to act as a filter between the raw material of the court proceedings and the reports that reach the public domain. We remove the identifying information and the disturbing details not essential to the decision in the case, while reporting comprehensively on the exchanges that reveal shortcomings on the part of state agencies and the reactions of parents to the proceedings. Only a dedicated body can follow cases that may go on for years and can devote resources to mundane as well as dramatic cases so that a representative picture is painted.

 

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

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