Posts by Louise Tickle

Freelance journalist, Orwell Fellow, Paul Hamlyn Foundation grantee

How not to make a reporting restriction order

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Yesterday – following an application I made to be able to publish the transcript of the hearing at which an unlawful reporting restriction order (RRO) was made in a Portsmouth family court – I was made aware that permission had been given. The Judicial Office published the transcript on its website and tweeted it out.

 

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I hope it offers a chance for people to see what the hearing was like for the reporters in court on the day, to understand why I felt that the reporting restrictions as made were unlawful, and why they needed to be challenged in the Court of Appeal.

I retweeted the link to the transcript, as did others:

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Before I launch into my criticisms of what happened in court that day, I think it’s also important to acknowledge a point made by family barrister Sarah Phillimore in her tweet: in court hearings  which have always been held in private, dealing with media applications to relax restrictions is unfamiliar territory for most counsel and most judges.

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Had this been a situation in which the media had applied to relax reporting restrictions on the hoof, I would be far less critical of the lack of knowledge of the lawyers who were in that Portsmouth  court, and somewhat less critical of the judge.

As I’ll explain however, all parties had been given written notice of  journalist Melanie Newman’s intention to apply for reporting restrictions to be relaxed, and so had ample time to read up on the case law and process required in order to ask – in direct opposition to what the media wanted – for reporting restrictions to be imposed.

The judge hearing our counter applications was not a district or part-time judge, but the designated family judge for the area, sitting as a High Court judge in this hearing.

So my sympathies I’m afraid, are limited.

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Reading a transcript of a hearing can be confusing, because nobody talks in perfect sentences, and the progression of events isn’t always totally clear, so  I thought I’d write this post to point out the elements that were so problematic in the way that the application to impose reporting restrictions was made by the parties, and in the way the judge carried out – in point of fact, didn’t carry out – the “balancing exercise” between articles 6 (right to a fair trial), 8 (privacy) and 10 (freedom of expression) that is required when imposing limitations on the important human right of freedom of expression

1

First of all, one of the journalists, Melanie Newman, who attended this hearing on 19 October last year, had given written notice by email to the parties of her wish for reporting restrictions to be lifted so that the detail of what went on that day could be reported.

By contrast, the parties – Southampton City Council, the Children’s Guardian, and (at that point, though she later supported my appeal against the RRO) the mother – did not give notice to Ms Newman that they were going to ask the judge to actually impose reporting restrictions.

This is directly contrary to the process that is required to be carried out when any party to a family case wishes to restrict freedom of expression beyond the automatic statutory constraints: if anyone wishes to do this, notice must be given to the media in advance.

2

The restrictions that the parties asked for included the names of the professionals involved in the case. These were already in the public domain due to the publication of an Appeal Court judgment.

The parties also asked for the family members’ ages, and ethnicity (which had initially been a factor in one of the grounds of appeal against the placement order for the child to be adopted) to be restricted from publication.

However, everyone’s age and ethnicity had already been made public in the Appeal Court judgment.

So all in all it was a pretty tricky ask, and in court on the day, the BBC’s Sanchia Berg stood up to protest.

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3.

No evidence was advanced at all as to how the ages, ethnicities or the names of professionals who had been involved would in fact lead to an unacceptable risk that the family would be identified. Essentially, the barristers simply asserted that their various clients were worried that identification might occur as a result of these facts being published.

This isn’t enough. In law, in order to seek a reporting restriction order, it is required that evidence is given as to how the facts which parties want to restrict would a) identify the family and importantly b) what harm would occur as a result.

It’s on this basis that the judge then sets the evidenced risks of potential harm against the public interest benefits of reporting the state’s intrusions into family life.

But because no evidence of risk or harm was put forward, the judge couldn’t do this.

4.

Nor did the judge ask for evidence when none was forthcoming – and indeed even when counsel admitted they had no evidence for their concerns, there was no judicial challenge.

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He simply accepted the parties worries as sufficient to restrict the important human right of freedom of expression.

If a local authority can simply assert a vague concern about a possible risk of identification, without being required to come up with something a lot more robust, and the judge then restricts the human right of freedom of expression on the basis of… well, nothing very much – then frankly I think there are some sharp questions to be asked about the rigour of what is going on more generally in family courts.

5.

The Guardian’s counsel put forward an extraordinary if somewhat incoherent case that just because something had appeared on the publicly accessible Bailii website, it wasn’t really public.

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Something is either in the public domain or it isn’t. “A little bit public” just isn’t a thing. Hearing a lawyer put this “argument” forward was for me one of the lowest points of the hearing.

 

6.

The other low point was this:

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To clarify: at the very end of the hearing, and AFTER the judge had made his order restricting ethnicity from being reported, the mother’s barrister took a brief instruction  and spoke across the courtroom to the media at the back, saying that it would be acceptable to say that she was African.

Somewhat surprised, I asked if “Black African” would be acceptable, as an allegation of racism was one of the mother’s original grounds of appeal. The mother was keen that her specific country of origin, contained in the Court of Appeal judgment, was not reported (while the media is now permitted to say which country she comes from, I understand her concern and choose to respect her wishes).

At this point, the judge said that we could sort out the details on how ethnicity was described between ourselves.

I was astonished. The entire point of an order is that the media obeys its specific restrictions. There should be no question of having a quick confab afterwards with the parties to see how far we can stretch or vary the terms of the order. It is illogical and unfair to put any journalist in such a position, and I could not have reported anything related to ethnicity after that order had been made without being in contempt.

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It was a particularly unedifying mess. It has now been remedied by the successful appeal against the RRO which I brought together with the BBC in February, made possible only by the generous donations of so many people to the crowdfunder, and thanks to uncountable hours of pro bono work by Paul Bowen QC and family barrister Sarah Phillimore. I really hope that the President’s soon-to-be-published Practice Guidance on how courts are to deal with applications by journalists and legal bloggers will ensure that such a dogs dinner doesn’t happen again. (The consultation on the draft version ends on 30 June, so if you have an interest, please do submit your views)

The – limited – signs so far are quite encouraging. I used excerpts from the Draft Practice Guidance to support my application to be able to publish this transcript – and communication with the court and the judge worked like a dream!

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

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The family court building, Dublin

 

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

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

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

 

Dublin visit

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

I tried over several weeks to arrange a meeting with Irish social workers, but this didn’t work out. I also didn’t have the chance to speak to any families who had been through the care system. Both are a real shame and I acknowledge that it is a significant gap.

The reactions from everyone I met to the Child Care Law Reporting Project were broadly very positive, with some criticisms. I will do my best to set out both in this post.

The first thing to note is that applications to remove children into care in Ireland are made not by local authorities, but by a central government body, the Child and Family Agency (also known as Tusla). This means that accountability issues on care applications are predominantly for central government to face. And helpfully, if you don’t need to name a local authority in order to hold the state to account, then worries around family identification relating to geography substantially fall away.

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

Secondly, there is considerable protection given to families in the Irish Constitution.

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

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

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

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

This is the direct opposite of the situation in the UK, where the starting point is that they may not. This is something I would very much like to reverse.

Nevertheless, I was told by Shane Phelan, legal affairs editor of the Irish Independent, the penalties have a rather chilling effect on editors’ willingness to cover family cases, even if they could stomach the resource implications of sending reporters to multi-day trials.

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

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

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

Only shortly before, a different report detailing six-months worth of lengthy, highly contested and problematic family cases had shown that homelessness was an increasingly frequent reason for courts being reluctant to allow children to return to their families: this issue too had been comprehensively picked up by the media.

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“At the outset, civil servants and the Child and Family Agency (CFA) were not enthusiastic about us,” Dr Coulter told me, between radio interviews. “They had this fear that all journalists do is look for problems, which I understand. But we designed our attendance at court to be as randomised as possible, based on court statistics on volumes. I think, with some caveats, we get a more or less representative sample, and I think they were at least somewhat reassured.”

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

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

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

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

She  believes that by describing the detail of public law care cases, the Project has given policy makers an insight into what is happening in child protection across the board. “That might be on the ethnicity of parents, or what proportion of care orders are granted compared to those asked for. This is not data that’s collected by the state.”

McKittrick also believes that reporting has raised society’s awareness of and sensitivity to child abuse. “Our perception is that the general public have had no idea of the level of misery that these children experience, and we can’t talk about it,” she said.

She expressed concern about whether children’s views on whether their cases should be reported, even anonymously, are ever solicited, let alone taken into account.

“The Guardian Ad Litem relationship has limits to its confidentiality already; we have to tell children that their information will appear to parents, also to other lawyers – should we also be saying ‘and it might also appear in the papers’?”

But she also observed that, as a Guardian who had built a relationship with a child, “you would know a child who was very sensitive to information and other children who would like people to know what happened in their case”.

Overall, McKittrick’s view was that “you need to look at the value of the reporting. And balance it against the rights of the individual child and also their anonymity and their consent.

“Having said that,” she concluded, when the Project began reporting, “the world didn’t fall in.”

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I met John McDaid, the chief executive of Ireland’s Legal Aid Board, and a lawyer who formerly worked on child care cases, on my first afternoon in Dublin.

Is the Child Care Law Reporting Project effective in holding the state to account, I asked him.

“I think we’ve made giant strides but there is a way to go,” he said. “I think the fact Carol’s team even go into the district courts may make people behave a little more carefully than might otherwise have been the case.

“Historically there was no scrutiny and everything was private, so anything could go on.”

I laugh to myself a little hollowly. That’s pretty much where we are in the UK, I thought.

But what about more overt media interest in family cases… what would he think of journalists reporting more enthusiastically from family courts?

“I’d have no problem with it.” McDaid said firmly.

“In terms of greater levels of press scrutiny it’s good. The risk is the level of experience of the journalist, and the level of understanding of what is taking place in court.”

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

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

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

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

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

I’m surprised she’s willing to be so publicly critical, but Ghent says she has made her opinions openly known.

“The whole system becomes complicit,” she says. “It’s a human reaction to want to avoid conflict.

“You need a complaints mechanism beyond judicial review. There needs to be an accountability mechanism. Because you have judges who are conducting family hearings in camera, and in courts that are open, you don’t get away with that.”

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

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

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

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

She also emphasised that there are situations in which reporting public law family cases “really matters.”

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

Is reporting worth the danger of identification, I asked?

“I think it’s so important that there is scrutiny. I think it trumps any downside.”

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

Pol O Mhurchu, her father, a renowned family law solicitor in Dublin, popped his head round the door. I grabbed the chance to ask what he thinks about the CCLRP, and scrutiny of family law systems.

“It’s very good idea, very important,” he said. “Because it’s starts right here. I need someone to check on me. Because it’s much healthier. I know that I need to be open to that.”

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

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

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Terry Dignan, chief executive of the human rights charity EPIC which supports children with experience of care, had tried very hard to arrange for me to meet some of the young people he works with, but this had unfortunately proved tricky to achieve.

Instead, I met with both him and EPIC’s head of policy, Karla Charles.

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

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

When I asked about the possibility of children being identified as a result of reporting, Dignan’s response was: “I have no doubt that some children feel that they don’t want it known. But others do tell their peers that they are in care.”

Karla Charles then posed a fascinating question, to which of course we don’t know the answer:

“It would be interesting to go to care leavers and ask, would it have bothered you to have your case anonymised and published?”

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

It was this official’s perception that the Project’s reporting is “scrupulously neutral.”

“It’s more like a research project,” he said. “It’s not positioned as existing in order to call out the failings of the judiciary or others. Its reports are descriptive rather than commentary.”

In terms of people’s original fears that the Project’s work risked identifying children and families, he points out that while this is not a widespread problem, court rules occasionally already fail to prevent families and professionals being identified on social media, as people release details of their own cases across various online platforms. “Carol has established an effective protocol to ensure that the reports do not in any way identify parties and that this has been effective now for a number of years,” he said.

The DCYA has made a significant financial commitment to support the Project’s work: the benefit, the official said, is that its reports bring emerging trends in public law care cases to the attention of national media and the attention of government. “As an example, reports have highlighted the length of time children are spending in care under renewed interim care orders,” he said. “This has implications for their wellbeing and also has resource implications, so clearly that’s an issue that may require a policy response.”

And what if the CCLRP didn’t exist?

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

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My conclusions from my visit, are as follows:

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

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

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

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

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Reflections

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

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

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

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

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

But in the UK, where local authorities are the arm of the state which both propose and heavily influence drastic and life-changing intrusions into families’ lives, failing to identify who is doing what would make the exercise of reporting pretty well pointless.

Not only would it mean we could not identify where poor practice and human rights breaches were taking place, so that the prompt of public knowledge can add salutory impetus to drive change: it would also mean that councils’ good practice could never be identified either.

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

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

Oh, and yes, Dublin did have excellent cakes.

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Louise

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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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