If you have been following my blog, or know me personally, you may already know some of the experience and organisations I have worked with over the years but I thought it would be beneficial if you have just met me or are just learning about the Presidents practice guidance.

I have been volunteering with NYAS since my school days, over a decade, which has allowed me to work with children and young people from Coram Voice, Voices from Care Cymru, CAFCASS and their Family Justice Young Peoples Board. I have also worked with many local authorities[, including bidding for the provision of advocacy services], the regional Governments in England and Wales, the Office for the Children’s Commissioner in England and in Wales, the Association of Lawyers for Children, and of course the family courts.

These are just a small list of who I have worked with voluntarily over the years; this exposure has allowed me to hear many personal and horrific stories from young people which they would not want to be made public, it has given me an insight into the bureaucracy of Government and the Courts, it has shaped the way I view the world.

My background grounded my interest in the law, my plan as a young person was to become a lawyer with Chilren’s Law Accreditation, alternatively to achieve a PhD and work in Children’s Law. So far I have achieved my LL.B, LL.M, and LPC. I currently work in risk and ethics for global full service legal firm which is giving me exposure to working in a legal practice and an insight into areas I would not have otherwise gotten as a paralegal or trainee.

But why a follow up on the evaluation of the President’s Practice guidance? I have been working alongside Dr. Brophy and many amazing people on various projects which has lead to this point, the President himself will be publishing his response, hopefully with a follow up plan, and many legal professionals are currently reading this light report before going to bed or at the breakfast table. My last post announced the publication of the review, but I didn’t give much of my own opinion or details on it, if I remember correctly I went off on a tangent…. Sorry!

There have also been some recent blogs on the Transparency Project’s website which are alarming and highlight the need for Checklist 2 (of the Practice Guidance (2018) [PG 2018]) to be implemented. During our research we still found that judgments had an alarming amount of graphic information relating to sexual abuse/rape of children. The level of detail in some of these judgments, along with possible intervention by authorities leaves a serious risk of jigsaw identification in the local area.

…we were all dismayed both at the extremely unpleasant and shocking detail of the father’s behaviour and the amount which had been left in prior to publication…

… the combination of very graphic intimate detail along with what seemed to us an obvious risk of jigsaw identification was what really felt uncomfortable – made worse by the unanswered question of what the victim of the abuse being described felt about it all…

Lucy R (Transparency Project)

In this review we also looked at a number of cases which contained evidence of grooming/trafficking of children (40% of judgments) as well as indications of perpetrators taking images during sexual abuse which was shared, uploaded, and traded on the internet (38% of judgments). There is a risk that these images could be found using details within a judgment, especially when they go into the level of detail of abuse some of these judgments go to.

The internet is not a temporary place, although the dark web is not indexed as such it is searchable to those who know how to use it. Taking down a website/image/page may be the answer to some people, but what if an image or video is downloaded, uploaded somewhere else, printed, or a screen shot is taken what can actually be done to protect the parties?

There have been advancements in technology, authorities have used hashed images to track offenders which have downloaded or disseminated abuse images. Image hashing can be quite simple, but if an image is manipulated [such as resizing, adding overlays or text, editing the image] the hash can be completely changed depending on the hashing algorithm and level of manipulation. Anyone can now reverse image search using the likes of Google to find the same or similar images. Take any image online and try reverse searching it as a bit of homework, you may get no results, you may get a variety of different websites and similar images.

AI is also a huge implication when trying to anonymise, if you have an image many social media websites have the ability to implement facial recognition. Facebook was using this technology to suggest who to tag in an image from your friends list. On the note of social media, this was the key to how many young people and researchers identified the parties to a matter when actively trying to identify them from anonymised judgments. Many social media accounts have some element of publicity, whether it’s everything they post or key details, when searching information from a BAILII report a member of the family, someone involved in proceeding, or someone close to them may have posted something online which can lead you directly to the parties.

In a contemporary digital world and media driven culture where technology companies hold more funds than entire continents the world is becoming much smaller, and information more accessible than ever before. There are more than 30 search engines indexing of web pages, images, videos, and more; each one of them is competing for users and trying to advance their services over the other. As a western culture we tend to see Google as king, followed by Bing, so although they may block results to a certain website or material there is a host of others which don’t, the same is true of ISP’s (Internet Service Providers), DNS’s (Domain Name Servers) and the rise of VPN’s (Virtual Private Networks). At home I have issues with images loading in Discord using my providers DNS, instead I use Google’s.

When you search some things on Google you may see the message Some results may have been removed under data protection law in Europe. At one point it was a simple matter of using a VPN and searching from a country specific URL [such as google.com.au], although they have become more compliant in recent years across the world. There are still search engines which are designed for an audience not located in Europe who do not comply with the relevant EU ruling and law, a take down request for a result also needs to be made on a per search engine basis, Bing will not serve you the same results as Google, they have different algorithms and indexing processes, they are competitors who do not share all of their information with one another. There are third parties who will submit take down requests to multiple search engines, but you must provide a lot of personal information and are likely to be charged for the privilege of their services.

In the internet age we also have the issue of virtually walled social networks which cannot be accessed unless you are a member, but once you’re in there are infinite possibilities. Many social media sites have terms of service and community guidelines to follow, this can also be seen on Discord, Guilded, Facebook, Instagram, Twitch, YouTube, etc. but what about the likes of Mastodon which allows you to set your own rules, and host your own server?

Many Mastodon instances hold users to a higher standard than bigger social networks, but there are some very big exceptions. Whilst Mastodon’s official site will only list instances that follow the Mastodon Server Covenant there are still servers like the Gab which is known for it’s extremist postings with a striking amount of hate content. Members of the Gab have been arrested for Neo-Nazi propaganda, anti-Semitic content, and even been linked to the killing of 11 members of a Synagogue in Pittsburgh; yet the server was not taken down [although the vast majority of other Mastodon servers have blocked themselves from being linked to the Gab’s instance]. There are arguments for such enclaves to exist in the fediverse, one question which has been pondered is it better for their members to congregate openly rather than to go underground, or turn to the dark web which would make them much harder to identify? Who is to say that these kinds of networks are not being used for the trading of illicit images or videos linked to some posted judgments.

Another issue we currently have with judgments in the Family Courts is the associated criminal proceedings which are referenced. Generally publication and reporting procedures are different and may introduce whole host of jigsaw, or plain old, identification issues. However, when it comes to the description of child abuse images at least the Criminal Courts use a categorisation system rather than a lengthy graphic description of the abuse images or excerpts from ABE interviews. Generally a criminal proceeding will receive a lot of attention, especially if a group dedicated to the identification of abusers has been involved in the investigation in any way [which is becoming more common], these groups also have their own sites where details are posted of related family members, associated parties, and sometimes images from the perpetrators social media accounts, or their investigations [not abuse images, but images they have taken when investigating or visiting the perpetrator] which create a greater risk to the child or young person.

When the media are involved they are not interested in reporting on the process of proceedings, it makes for a dry article and does not produce anywhere near as much revenue as “Pedophile stands trial!” or “Local authority’s failure to protect children”. We’ll deal with some of the reasons a judgment may be posted later, but media involvement is mostly singular, to create a divisive headline which generates conversation, clicks, and revenue. Another issue is the publication of names and images of parties where one party may have approached the press for a media trial alongside the legal process.

There have been suggestions that everyone involved in the matter, particularly professionals, possibly the Local Authority could take the lead, should identify any external publication [whether it be by the media, social media, blogs, or otherwise] and bring it to the courts attention. A checklist of how to deal with publication would need to be produced, such as has anyone check the internet, how can publication be identified, what has been posted, how can it be managed. This is a particular issue is a geographical location has been identified, especially when parties to the matter are known families [i.e. having a reputation, belonging to a certain religion, frequently visited by professionals / law enforcement / RSPCA, the number of children in the household].

When we are talking about the publication/posting of extremely personal and private events, where the parties are at one of the most vulnerable points in their lives we cannot ignore their rights. Children and young people have the same rights to privacy as adults under Article 8 [of the ECHR, as well as Article 16 of the UNCRC]; they also have additional rights under Article 12 [of the UNCRC] which states they have the right to be informed of decisions affecting them, the right to have a voice, and the right to be consulted and their views, wishes, and feelings to be given due regard when making these decisions. I have discussed these rights in previous posts, but they are important to bear in mind when considering publication/posting of Family Court matters.

There is legislation and common law around the reporting of Family Court proceedings which we have mentioned previously. s.12 Administration of Justice Act 1960 makes it contempt of court in children’s cases, unless the court otherwise directs, to publish anything relating to proceedings which extends beyond the end of proceedings; s.97 Children Act 1989 prevents publication intended or likely to identify a child, including their address or school, who has been involved in relevant proceedings, this only lasts during proceedings and is a criminal offence; s.39 Children and Young Persons Act 1933 creates a power to prohibit the identification of a child subject to proceedings. Clayton v Clayton [2006] EWCA Civ 878 / [2007] 1 FLR 11, CA [para 77] confirms that the court should consider whether there was an outstanding welfare issue which needed to be addressed by a continuing order for anonymity, especially where there are gaps in the legislation. Re S (Identification: Restrictions on Publication) [2004] UKHL 47 / [2005] 1 FLR 591, HL [para 17] identifies the needs since the Human Rights Act 1998 for a rights based approach.

Some professionals have pondered who should be responsible for telling a child or young person about the possibility of publication/posting of their matter; should it be the child’s social worker, guardian, lawyer, the court, or someone else? The short answer is all of them.

Lets consider the caseload and time constraints of the social worker, in 2020 the average social worker had 16.3 cases, there were over 6,000 vacancies, and well over 5,000 agency staff. Social workers have been known to impart potentially important information in a matter of seconds and not have the time to fully explore the situation or sit down to ensure that a child or young person understands the ramifications of some things. I’ve seen examples of this myself, for example, when it was not fully explained what an advocate was before one was thrust on a young person, then rest-bite care was fully explained so they thought some stranger working for the state was coming in to talk to them and they were being taken away from their family, when they were in fact being given someone completely independent to help them formulate and present their views, and being given the option of a few days or weeks away from the situation with someone else looking after them for a short period. Social workers cannot be expected to be the only ones to explore the possibility of publication/posting and how that may affect the child or young person’s willingness to engage in proceedings.

Now lets look at a Children’s Guardian, a court appointed qualified social worker who are [arguably] independent, their role is to consider what is best for the child at all times during a case. Guardians could be one of the best options, but not every matter appoints a Guardian to represent a child or young person, and what happens if a Guardian decides that it is not in the best interest of a child or young person to disclose that their matter may be posted? If there is a legal duty to disclose that a matter may be placed in the public arena in any form it may discourage engagement with the process for fear of their words being taken out of context, being identifiable when the matter is so personal, potentially hurtful, and with future safeguarding risks, for the general public’s perception, the possibility of being ostracized. There are already so many stereotypes people wish to avoid, being a child in care is often negative in the eyes of the media, you do not want to be categorised as someone who is vulnerable, and especially someone who has been sexually abused. The Guardian should have a better relationship with a young person than a social worker depending on how much time they actually spend with a child or young person, and may be more trusted than a lawyer or the courts as in principle at least, they need to develop a good interpersonal relationship as part of the process.

The child or young person’s Lawyer should be very knowledgeable on the applicable legislation and common law surrounding publication, but can they put it in language the layman or their client can understand? A child will not care about their fancy qualifications, the Latin legal jargon, the history of X, Y, Z. Some lawyers are amazing, they produce child friendly documents using plain language which professionals prefer to using the convoluted definitive documentation (which can lead to misunderstandings, but they get the basics and a lovely document to refresh their memory). I can see a legal professional requiring time to prepare and practice talking to a young person, time which cannot be billed, time a firm may not be happy with them taking, or a client cannot afford for them to take if it is. You also have to question their engagement with a child or young person, they may take instruction from a parent or guardian on behalf of a child, what is a young person going to think when this potential perfect stranger who represents them to a judge starts talking about their personal matters being placed in the public arena via a public website?

The Courts have a duty to remind parties of many things, particularly procedural matters surrounding proceedings which can fall on deaf ears. There are many cases of parties and related parties taking to social media to publicise their gripes with proceedings, professionals, and organisations even when the Judge has stated in plain English that this is not to be done. Where the court has a duty to “disclose” we again have the potential issue of jargon being used, of overloading parties with information, of nodding along for fear of being seen as stupid or wasting time when the rest of the court is waiting to proceed. If the court is to disclose and gather the views of a child on the possibility of making a judgment public it should be done in the Judge’s chambers with someone who is trusted, but not going to influence a child’s response to the exchange.

You also have to consider when a child or young person is told about the possibility of publication/posting, they may be disinclined to engage further with a professional if they know for example that a psychologists report may be the subject of public scrutiny. It must be dealt with empathetically and sensitively so they have the information they require to make decisions which will impact their lives, they need to be aware of the sorts of material which could be included in a judgment. In my opinion they should be informed at the earliest opportunity, it is no good informing someone of their rights and the potential of a posting of the judgment part way through proceedings where they may feel obfuscated or deceived and proceed to disengage with the process, especially professional or expert witnesses. That said, expert and professional medical witnesses will write disclaimers in their reports stating they expect to be asked permission for information from the reports to be shared, they do not seem to appreciate that the matter of those reports could be posted on BAILII; annexation of professional and expert reports (or specific paragraphs from a report) seems to be the best way forward as the details contained within these reports are important for the judge and related parties to acquire a full picture of the matters at hand, and anonymisation and summary/abridgement of graphic details could detract from the impact of the reports produced.

Young people involved in our research where very clear – if graphic descriptions of CSA are to be placed on a public website – they would want to know – the Family Justice Young People’s Board support that view. So, it is time to stop talking about ‘if we should tell them’ – rather when and how. If that results in a refusal to comply with the investigation, then the judge will have to address that. How else are we to achieve some change here if we continue to effectively silence young people by dishonest/unethical practice – because we know the likely results. It has been said many times that Turkeys woudn’t vote for Christmas. This position should have been addressed by Sir James Munby in the 2014 Practice Guidance.

There is also the question of if the child or young person can comprehend the implications of posting a judgment in the short or long term. We’ve already discussed that what is posted online is not temporary, in fact if we go back to the Transparency Projects blog at the time of writing the offending judgment was taken off BAILII but was still accessible on Westlaw. Children and young people are wise to the ways of the internet at a young age, you have children who have not learnt to speak who can unlock a tablet and navigate to their favorite shows or applications, but you also have people who post divisive statements who get into trouble in later life. An issue with the system currently is if a child or young person learns of a judgment being made public how would such a person get in contact with the Judge to request that the judgment is removed; at which point it/details therein may already be in several other places and the digital footprint would be very difficult, if not impossible, to remove.

Gillick competency has been a long standing foundation for giving weight to a child or young persons understanding, the issue is that age is immaterial, I know of perfectly articulate young people with a profound knowledge of certain things whilst someone several years their senior struggles to grasp the same material or refuses to listen to the former due to their age. Knowledge and understanding of a subject is itself subjective, a blanket rule or structure cannot work or will be unfair in certain situations. There are benefits to publication/posting of information about how/why courts make decisions, but what if a child or young person cannot comprehend the implications at the time and comes to regret it? How do we also measure or define maturity? Maturity is in no way linked to age in this instance, maturity is the capacity to comprehend the advantages, disadvantages and potential long-term impact publication/posting could have on a child or young person in the future, it is about their ability to thrive after the fact and not just survive. Understanding of the risks, implications and consequences of placing judgments in the public arena can be tasking, I have been approached by a number of Judges unwilling to publish judgments due to the possibility of jigsaw identification and the impact it may have on a child or young person in the future. You also have to consider that this is potentially the most traumatic time in a child or young persons life, how realistic is it that you would be able to make an important decision and know all the consequences of that decision if you were feeling distressed and vulnerable.The research from young people indicates at the very least, some young people – albeit ‘distressed’ by the events leading to proceedings – are nevertheless able to make decisions of this nature – if they are given the correct information.

When we go from discussing if we should “publish” at all [don’t worry, we’ll come back to why the courts may publish], we have to look at anonymisation. We already have Checklist 1 to anonymise names, dates, ethnicity, schools, educational issues/problems, local authorities, social workers, family, clinicians, etc. but we haven’t really considered onerous impact on professionals documents being drafted in this way; or the time implications to ensure information is not being inadvertently left in a posted judgment.

The issue of documents being submitted in this manner is the cost and time, we must also consider the training requirements as not everyone will be able to pick up the guidance and implement it. There is the possibility of case management allowing extra time for the anonymisation and review of an anonymised judgment by lawyers before the matter is closed by the courts, it would have to be considered how much time would be required, although this would heavily depend on the amount of evidence submitted and how the time implications of this exercise must be addressed in order for professionals to do this task properly and to a high standard.. Statutory agencies already agree how they will refer to parties subject to local child safeguarding practice reviews before they start a review, this is something the courts could consider prior to documents being prepared for court.

There are also questions about how much can be anonymised without detracting from it’s impact on the overall matter, for example ABE interviews can be extremely important pieces of information, but they could be annexed in their original form with a summary/abridgments in a judgment or a reference to the annexed document which would only be available to relevant parties, as suggested in Checklist 2. There needs to be enough detail in a judgment made public so that parties and readers understand the internal rational for the judgment, it does not require a prose or detailed chronology of the events leading up to the decision – which could be annexed. The judgment amongst other things, is a statement of the findings of the court, if the checklist is applied there is no need for swathes of text to become black holes of information leaving a reader feeling they are missing key information. I rather read a short concise judgment rather than reading 70+ pages where you forget some of the information by the time you get to the end.

The purpose of a judgment is so that the parties in the case are aware of what the Judge has decided and why; that the professionals working with the family going forward know what was decided and why; so that another[, or the same,] Judge knows what was decided if the matter needs to be reviewed or is appealed. The level of detail contained in these judgments is necessary for a party to the matter and professionals are fully aware of the facts at hand, but none of the graphic descriptions of sexual abuse are necessary for the public to understand the process and procedure of the courts. If the intended purpose of placing children judgments in the public arena is to ‘educate’ the public, this can be achieved without graphic and identifying details being included. As per PG (2018) the latter details – where these are deemed essential (and may need to ‘travel’ with the bundle) can be annexed to the court file.

87 judgments were posted in 2019, before the courts move to a place more judgments in the public arena it is crucial that guidance that exists to better protect the privacy and safeguarding of children is properly and more consistently adhered to by those involved in the process. I am opposed to media access to family proceedings, but if they are granted access to report we must ensure that strong and robust rules and regulations are in place with fitting consequences if they are breached. The media must be held to the same standards[, preferably a higher standard,] as Judges in relation to this guidance A fine or short prison sentence may not be enough to discourage the leaking[, accidental or otherwise,] of identifiable information or salacious details in the media, we must also see active prosecution of those who breach privacy as it can have a lifelong and damaging impact on subjects of family proceedings.

The need for anonymisation and a change in the way the courts write judgments is not simply a question of how best the public in terms of information coming out of the court but how can we simultaneously do that whilst protecting already vulnerable children: PG 2018 demonstrates how that can be achieved – contrary to other contributors to this deviate the issues are not irreconcilable inform. But as our research identifies, to meet those demand we must anonymise sufficiently – and with a focus on future safeguarding needs in the digital age. Thus, the question becomes – in the light of what children and young people have told us how can we better ‘future proof’ on their behalf, how do we provide channels for them when ‘posting’ is done without application of CL1 and CL2? How do we protect the courts as well as the parties to proceedings, and importantly how do we regulate and hold the media to account.