Safeguarding, Privacy and Respect for Children and Young People (Part 7) and the ALC

Some of you may have been waiting for this next instalment with much bated breath but I assure you had has been worth the anticipation. During our last meeting with the President of the Family Court Division he asked us to look into the ability to identify the subjects of Family Court proceedings through information publicly available on the internet, the idea that the media may be allowed into private proceedings is concerning enough in itself without even thinking about the level of detail of which the courts publish themselves.

In our last peace of research we identified a number of young people involved in Family Court proceedings from cases set out on BAILII, what concerned us was not only the ability to identify them but also the level of unnecessary details included in the reports including the level of sexual abuse. Young peoples opposition to allowing the media into the Family arena was recorded as far back as 2007 in the Confidence and Confidentiality – Openness in Family Courts consultation paper which recommended more cases be placed on the publicly accessible site.

Unfortunately children and young people were largely ignored and we saw the implementation of the  Family Proceedings (Amendment) (No.2) Rules 2009 which first allowed the media into private hearings. It is perhaps sadder that Sir James Munby [President of the Family Court Division] announced that he is determined to  improve reporting of family proceedings to the Society of Editors in 2013 rather than at a judicial event where it would be clearer that he means for a more transparent system rather than risk the potential for a trial by media, as we have seen in many notable criminal cases.

Judges do not carry the burden of anonymization alone, when a judgement is handed down the solicitors and barristers have the opportunity to flag up any issues they may have, including that of the potential for jigsaw identification. Speaking at the ALC Conference His Honour Judge Bellamy urged members to challenge what is being passed down and invited members to read his own practice guidelines (of which he has sent me a copy, as they were in such great demand on the day they ran out of printed copies). It seems that we are not alone in our concerns over the potential of jigsaw identification with the judiciary writing recommendations within their local systems.

Before I end on the research I have been carrying out with NYAS and Dr Julia Brophy I would just like to mention that we are planning to meet with the President in January so we will hopefully have more to report then. In our meeting we plan to discuss a review into anonymization practices within law reporting and an evaluation of judgements already available on BAILII in which summaries of sensitive information may be provided and where it would be inappropriate to do so.

All of the research which has been done so far will no doubt be heavily featured in my dissertation, but there is much more out there and I have yet to do more than scratch the surface. The information and collaboration I have thus far received from the ALC has been invaluable and I am ever grateful.

I was privileged enough to stay for a second day of the ALC conference, funded by Bangor Universities Graduates of the Future Programme and NYAS, which helped me to research some of my dissertation and learn a great deal I would otherwise be ignorant to. The start of the conference was opened by Nicola Jones-King, who I was privileged enough to have lunch with later that day, she described the current court system as a sat-nav which has somehow been reprogrammed to avoid the obstructions that are the child’s views.

Nicola’s co-chair, Maud Davis, was incredibly impressive with her opening statement; although she admitted Nicola had to cover legal aid because it was just too depressing. Maud pointed to  recent case in the county court which allowed the identification of the father and one of their children, Poppi, but not the mother or either sibling due to a reporting restriction. It took Maud and Nicola a few moments in a caffè to identify the other members of the family through information contained within the judgement [of Cumbria County Council v M & F [2015]].

I have long been touting the words of Lord Justice Ward in ETK v News Group Newspapers Ltd [2011] EWCA Civ 439

“They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where bullies feed on personal discomfort and embarrassment.”

But I have now found a new, if old favourite of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at page 18

“It has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.”

Which has been read and quoted in a recent judgement by Sir James Munby [Re: M (Children) [2015] EWHC 1433 (Fam)]. Given previous exchanges it may be pertinent to inform him of my interpretation of these words, as well as their relevance in this day and age, despite being over 180 years old they are still felt to ring true.

My experiences of the ALC were not only that of social media, I also had the pleasure of seeing Julie Selwyn, Professor of Child and Family Social Work, presenting her research Beyond the Adoption Order. There are many concerns over s.12 [Children and Families Act 2014] orders, one being the way in which children and young people are listened to but also the after care for those who care for them, and our age old friend, access to CAMHS. I am not going to dwell much on this section but I do advise looking through the research as it makes for interesting reading.

Our key note speaker was the heroine of the legal system, the greatly admired Brenda Hale, Baroness Hale of Richmond. Although one of the most notable people within the legal profession she did start with a somewhat joking exchange, during her introduction HHJ Bellamy joked that she was one of his favourite judges of the Supreme Court as she had not overturned one of his decisions to which she rebutted that there was an application for appeal to overturn one of his decisions to which she had not made a decision as to what to do.

With the conference being centred around a child’s journey through the court system it is probably no surprise that it was encompassed by the question “Are we nearly there yet?” This question has probably been heard on many an occasion, of which Lady Hale professed her husband would somewhat jokingly reply:

“Only another five hours. Now was that an act of cruelty or kindness; lying to a child or admitting that either the child had no right to know the answer, or that the adult also didn’t know.”

It is this that we were first drawn to ponder as parallels were drawn between the car journey, and the traditional mode of care proceedings. Lady Hale herself admitted that she was unsure if things were any different in the “brave new world of 26 week deadlines”. But where a child is involved in proceedings she had previously asked whether they should be seen and not heard, presumably provocatively.

It had been 12 years since she last addressed the ALC, in her last speech she had indeed found that children should be heard, and more often than they were then. As evidence we were directed to the work of Dr David Jones, in a paper he presented to the Presidents Interdisciplinary Conference September 2003.

The first reason presented was that of children wanting to communicate, if the lines of communication are not opened up to them at difficult times then sooner or later they will have wished that they could have had their say, and that someone had asked them to do so earlier.

“Second, that children have a right to know what is going on around them, and to understand important matters about themselves. Third, children need protection from present or likely harm, so they need to be able to tell people about this, and people need to be able to pick up on the signs and ask them about it. Lastly children need protection from the harm which may come to them quicker if they are kept in ignorance of, or are unable to talk about, important matters in their lives.”

Courts undoubtedly cannot treat children as the object of proceedings, they are both witnesses of the facts and must be treated as a party to decision making process about their futures, this is reiterated under Article 12 of the United Nations Convention on the Rights of the Child. When Lady Hale herself was involved in the Family Division [1994-1999] they were very reluctant to involve children in the proceedings in either capacity.

The Children Act 1989 introduced an express requirement to take into account the ascertainable wishes and feelings of the child, but there was scepticism as to the value of those views. In Taking A Longer View Of Contact, Jane Fortin stated:

“There is an obvious temptation to discount the views of relatively young children – on the basis that they are too young to have any real opinions, that any views they express are not informed by any real insight into their situation, or that their ideas are shaped by those with whom they spend most of their time.”

This was felt to be true of child abduction cases, on the grounds that they were always bound to side with the abducting parent, although Fortin’s study of separated children when they grew up gave no support for the suggestion that their views were unduly influence by the parent with whom they were living. Some felt that you were more like to get sense from a younger, than an older child, one saying:

“When they get to where they are 13 they’ll come up with silly ideas, I think to suite them. To play, to get out of it as much as they can where the younger ones come up with more sense. The younger ones are cleverer than you think, and their the ones with the most sensible ideas.”

Unfortunately the procedural rules in support of children taking part left it to professionals to communicate with the child and pass on that communication to the court without any formal structure or training. Private law proceedings would traditionally be done through CAFCASS Reporting Officers, whilst care proceedings would be through the child’s guardian [which could potentially be an interpenetration of their own views].

It may be postulated that part 12.14.3 of the Family Procedure Rules discourages members of the judiciary from having a child in court at the time of the hearing as they are much stronger than previous iterations stating that proceedings WILL continue in the absence of a child as long as the child is represented by a children’s guardian or solicitor.

“She is young for her 13 years, and for most of the hearing she seemed preoccupied, and who can blame her with her toys and her colouring books.”

Waite J in Re C (A Minor)(Care: Child’s Wishes) [1993] 1 FLR 832

Whilst the case of Re C (A Minor)(Care: Child’s Wishes) was concluding the judge asked the girls guardian whether they felt it had been a good idea for them to be there, to which they said it had been a good idea and although she may not have taken in much of what was going on, but at least she felt she knew that decisions were being made about her when she was there. Unfortunately the judge thought otherwise.

Lady Hale remarked that her husband, who occasionally sits in the public benches in Supreme Court, reports that some of the junior lawyers sitting behind counsel, apparently industriously typing notes on their laptops are in fact playing solitaire or doing their emails. So what damage does allowing a child who wants to be there from being there? Not allowing a child to be there when they want to seems a backwards step, Scotland allow them to be there and Germany allows for children to attend at least some of the time according to European Court cases.

When Lady Hale joined the Royal Courts of Justice she was told by a senior Family Division Judge that the reason for chambers being directly behind the courtroom was so that in wardship proceedings the judge had to be close to the courtroom so that he could see the child in his room. This shows how much the assumption has changed in recent years from the child being a key part of proceedings to merely the subject of a case and back again.

Before the Children Act Magistrates were told that they had no power to meet with children in private law proceedings, and yet they were seeing them all the time in public law proceedings.

“At its heart lies the conflict between advancing the welfare of the child and upholding the child’s freedom of expression and participation. Unless we in this jurisdiction are to fall out of step with similar societies as they safeguard Article 12 rights [article 12 of the United Nations Convention on the Rights of the Child], we must, in the case of articulate teenagers, accept that the right to freedom of expression and participation outweighs the paternalistic judgement of welfare.”

Mabon v Mabon and Ors [2005] EWCA Civ 634

It is important to realise that things have changed drastically from days gone by, when visiting Holborn High Court, HHJ John Altman informed us of a case where a seat was set at his bench for a young person to sit next to him during the hearing of his case. Although a progressive judge this shows that the judiciary is changing and more weight is being given to the independent thoughts and feelings of children and young people when decisions are being made about their lives.

In two cases from Germany the European Court on Human Rights decided that there had not been sufficient procedural protection for the fathers right to respect for his family life, with his child, when he had been denied contact. In one case the court had not interviewed a five year old child personally because the expert had advised against it. In the other, the court had relied on the strongly expressed views of a 13 year old child without getting an up-to-date psychological report.

Although the cases were around insufficient protection of the fathers rights, it can, and probably should, be interpreted as insufficient protection of the children’s rights. The cases ended up in the Grand Chamber which held that it would be going too far to say that the national court was always obliged to hear directly from the child or to have an up-to-date psychological report, although it was clear that one or the other was a good idea. These cases lead the senior judiciary to consider that there may be policy issues to consider within our own jurisdiction.

Lady Hale argued that there were five advantages to a child meeting with a judge. First, that the judge will be able to see them as a real person rather than  the object of other peoples disputes and concerns. Secondly, that the court may learn more of the child’s wishes and feelings than at second, or third hand. Thirdly, the child will feel respected, valued and involved as long as they are not coerced or obliged to make choices of which they do not wish to make. Fourthly, it presents an opportunity to help the child understand the rules [of a court order]. Finally, parents may be reassured that the court has been actively involved rather than just rubber stamping professionals decisions.

I realise I have spoken a lot on Lady Hale’s speech and so I invite you to read the documents linked at the bottom of this article for more information regarding the remainder f her speech on expert evidence from young people and the views of the Family Justice Young People’s Board.

I would like to give you a few quotes from one lawyer who I spoke with later in the day, and I honestly wish I had gotten his name as it would be useful and interesting to talk to him again:

“The idea that the agony of our children should be put onto the Sun newspaper, the Mirror, or anywhere else is just sickening, utterly unbelievable and as far as I can see the only person pushing it is the President. I may be wrong, but it seems to me that many judges I’ve heard have expressed horror at that idea; and it is the President who’s pushing it, and the President has a history of involvement with the media which I think is extremely worrying that he is now, apparently alone, in pushing for greater publicity, grater use of our children’s and families pain to sell newspapers.”

Although Lady Hale was not able to respond to the question he put in its entirety she did state that she was fascinated to learn about the work being done with children and young people on what they think of publicity, and the complexities of proper privacy being respected. She admitted that it is not as simple as just publishing things on BAILII and the judiciary need this pointing out, she also congratulated us [NYAS, the ALC and the Researchers] on what we have pointed out.

I am not going to go into detail on the Parents in Dispute session other than to say that psychologists are looking at working with divorcing couples to create a parental alliance and work on their issues without discussing the past. The parents work alone for three sessions with two different psychologists before coming together [where possible,] for another three sessions. The idea of separate psychologists is to stop one or another from become fatigued and encompassed by any negativity, in theory they will be able to help one another if they should run into difficulty as well as the subjects.

The last speaker I am going to talk about is an expert witness who provided an education you will not find for a lawyer anywhere else. Professor Archie J Malcolm gave us a lesson on histology and pathology relating to young children and babies. In many cases involving the death of a baby a cranial fissure is mistaken for a fracture, compared to an adult, or older child, with calcified bones it takes a lot more force to fracture the skull or ribs as the periosteal reaction is still in its infancy and cartilage is somewhat in the place of bone.

Where there is a fracture it is dated by its place in the healing process, at fist instance there will be a collection of fibrin which will bind with with platelets forms a hemostatic plug or clot over a wound site, after six to eighteen hours a polymorph will appear before macrophages invade to fight off infection within one to three days. A stoma will appear after two to five days, an osteoblast within five to eight, an osteoclast within five to ten before fracture callus in the final ten or more days.

As I have already mentioned, a young child’s bones are far more pliable than an adults due to its structure being mainly cartilage, this means that to break a babies rib would be a non accidental injury. In one study only 3 of 947 infants suffered rib fractures after receiving CPR. If a child has posterior rib fractures then they have likely been squeezed too hard as a fall or blow to the back will not cause that much damage, the only issue is an anterior x-ray will not show these injuries as the front of the rib cage will hide the back.

In general a metaphyseal fracture is likely to be caused by violent swinging from the forearm or ankle, this is where there is damage at the interface of a long bone between the cartilage and hard bone. Common places are around the knee from severe accidents, it can also occur at the top of the femur, ankle and elbow; the only problem with identify such an injury is that it will take about three days to appear on an x-ray.

There are different types of fracture, these are the transverse [snap or bow to the bone], spiral [rotation or twist], comminution[high velocity impact], and greenstick [a break to one side of the cortex only as the bone is still flexible]. There were a few gory images to accompany Prof. Malcolm’s presentation although he had removed the worst and instead included anecdotal evidence of brains being crushed, spines being severed and much more besides.

As the last session I was able to attend it was certainly an eye opening experience, if not different and somewhat horrifying what some people can do. If I could listen to a similar presentation again I definitely would for the educational side; although you have to ask if some did not have a perverse fascination with the cross between the psyche, law and medical horrors he had to speak of.

 

Guidelines for Children and Young People Giving Evidence

Final Report of the Children and Vulnerable Witnesses Working Group

England Are Failing The Young and Vulnerable

First off I realize that many of my titles are emotive and arguably overstated but mostly they reflect what is generally felt once people have read my post, or at least how I feel as I write them so apologies.

Going back in my blogs I wrote about attending a round table discussion on inpatient mental health and a few of the reforms we though necessary to improve the current system; in a few weeks time I will be attending another of these discussion groups but this time with the Office of the Childrens’ Commissioner, and hopefully a larger group of individuals. I think we can all agree that at the moment there is a lack of staffing, funding, availability and general service when it comes to mental health facilities with many having to travel to different cities to acquire adequate mental health provision; but this is not the only area in which the government are failing.

A recent freedom of information request by NYAS revealed that the Department of Education and NHS England are failing to record adequate statistical data on the number of children in care and care leavers who are admitted to hospital due to mental health issues. With a response rate from mental health units only reaching 28% from this request NYAS has found that in the past five years at least a thousand children and young people have been admitted to mental health in-patient units whilst in care, the data of which is not shared across central government.

To paraphrase Claire Hyde (NYAS Assistant CEO) there is no meaningful statistical data on children and young people who are looked after or who are care leavers, there is no substantial information of their experiences beyond that of anecdotal evidence, of which NYAS may be more privy due to interpersonal relationships as advocates for those receiving treatment. To follow on from that there is also an alarming rate of children and young people who have to go out of their authorities catchment area in order to receive treatment which has left some social workers with a more blasé attitude towards their work concerning those individuals, and NYAS advocates often having to inform and remind social workers about the rights and entitlements of children and young people.

With children and young people both in, and having left care there are many concerns, especially with the media coverage of scandals in recent months. It is commonly felt that these individuals are the ones who slip through ‘everyone’s safety nets’ leaving them with ‘lifelong problems which cost society more in the long run’. Although the statistical data may be scares the anecdotal evidence from various news sources in long and concerning. It is not only the statistical data which is lacking, the Mental Health Code of  Practice8 highlights the requirement for independent mental health advocates to have experience of working with children and young people who are looked after or care leavers as well as the legislation governing them across both mental health and their legal status as looked after children and young people. Just look at my previous posts and you will see a whole host of issues with regards to advocacy and funding both within England and Wales, local government are still not competent enough to realize the importance of advocacy and the affect it can have on both helping the child or young person and the services they may be involved with.

Advocacy is not just about supporting children and young people with complaints

With those in or leaving care there is also still the issue of who is to fund their costs of living beyond those of the average NHS patient, such as clothing and toiletries just to give you some idea, and where do they turn when there is an issue with their funding especially if their foster carer/social worker/original LA is different to the one they are receiving treatment? From NYAS’s freedom of information request it was revealed that over 15% experienced delays to their hospital discharges due to a lack of foster or residential placement. The duration of stays ranged from one day to 540 days. Two young people were of no fixed abodes on admission. No data is gathered on how far children have to travel to the units from their homes. 50% did not record length of stay. Over 50 % had no advocacy provision in place.

This is just a small selection of the issues on offer, no doubt I will bring more to light in subsequent postings.

*Published in January 2015, the new code will come into force on 1 April 2015, subject to Parliamentary approval.

Thanks to Claire Hyde (NYAS Assistant CEO) and NYAS themselves for their Mental Health Article and prior round table discussion group on which this post is based.

MEGA Young People, We Won’t Stop!

So first off this wasn’t just another meeting, we had in fact received a message detailing that advocacy areas would now be under the Minister of Health and Social Services solely as opposed to the Minister for Communities and Tackling Poverty; during the summer ministers had met to strategically review the evidence relating to the current and future states of advocacy provided by the “Missing Voices” Report, MEGA six-month report, evaluation of MEIC (which I helped set up as part of a previous role on the Extended National Youth Advocacy Board), and early messages from the CSSIW’s inspection of care planning and safeguarding arrangements across all local authorities in Wales.

During these meetings two immediate actions were concluded. Firstly, [as previously mentioned,] to bring advocacy under a single Ministerial Portfolio; Secondly, to invite local government to bring forward a model for securing a national approach to statutory advocacy for looked after children, children in need and other specified individuals.

A Strategic Leadership Group, chaired by Albert Heaney, Director for Social Services, and comprising representatives from the Welsh Local Government Association, the Association of Directors of Social Services Cymru, the Children’s  Commissioner’s Office has been established to develop priority actions to, deliver a functional business model, underpinning a national approach to advocacy. The Group has established a focussed Task and Finish Group to report back to the Strategic Leadership Group at the end of January on progress.

In the interim, officials in discussion with the Chair of MEGA have concluded to apply a period of pause and review to the work of both the MEGA and the YPEG pending the outcomes of the work to develop a national approach to advocacy. As the revised statutory advocacy landscape emerges in the Spring, they anticipate that they will engage with both the MEGA and the YPEG to ensure that there is effective opportunity for participation in shaping the statutory advocacy landscape.

As you can tell that is all from the letter, and if you know me you will know that I rejected the period of rest as did the other young people on the basis that we were/are service users of some description and know how things work in practice rather than theory. As I mentioned in my previous post around 1/3 of local authorities are spending less than half of what is recommended on advocacy per child or young person, this is partly because the Welsh Assembly are unaware centrally of how local authorities are distributing their funding, and some even see it as a non-essential service so they will do the bare minimum to meet statutory standards. A few weeks ago I was part of a tender team for the North Wales advocacy contract, they were already underspending on services and were asking for a further 40% reduction in costs, applicants refused and another tender was offered where by service providers would name their price.

Since this review local authorities have been advised not to offer tender until a framework has been set out, once a contract has been signed it will be very difficult to terminate, if not impossible meaning that any plans may have to be delayed with many contracts spanning three years. The Vale of Glamorgan have adhered to this advice and are staying off their tender and staying with their current provider until this new framework comes to fruition which will hopefully come into effect in October.

With no formalised vision of a single service provider written on paper for Wales yet they are looking to Northern Ireland for inspiration, a much smaller geographical area with many shared issues, a different legal system and basically not Wales. Currently it is a postcode lottery in Wales as to which local council you come under and the emphasis and funding they put into advocacy, there could be specialist provision for those in one area but not their neighbouring constituency which causes a lot of problems if a c/yp has to move for any reason.

Another current issue with advocacy is the entitlement, strictly speaking if you have mental health issues you can be entitled to one, if you have educational issues you can be entitled to another and if you are in care another. This entitlement currently negates and undermines the whole idea of advocacy where you should be able to build a rapport and speak freely rather than having [potentially] three more adults [interfering] in the situation, there is also the question of who funds them as each of these areas are allocated different funding within local authorities again creating a postcode lottery.

So far has been a big rant on the negatives, so apologies, but here are our potential solutions. Firstly when a child goes into care, is in need, or is one of these other specified individuals then they should get a face to face meeting with an advocate who can explain their role and offer their help. This is what is known as an active offer which is done in Dumfries and Galloway [and subsequently reflected in their tender process] where as social workers can currently get away with claiming they have made an active offer or class “Do you want an advocate” as such. What we have suggested is to incorporate an active offer as a component within care meetings which the chair will then be obligated to check, and to that matter social workers need to be actively educated on what an advocate does rather than just leaving them to think they make their jobs harder or assist with complaints [which is usually the last course of action we will suggest].

With younger people particularly there is a fear of the new, and so they should be made aware that they can nominate a friend, family member, teacher, etc. to be their advocate and they do not have to have a seasoned professional. Again the idea of advocacy is to provide a voice to the c/yp and sometimes that is best done by those who already know them. If things are too difficult I do believe that local authorities should provide funding for, and offer independent visitors, these are basically impartial people who will befriend the c/yp and take them somewhere comfortable to escape for a while or chat about anything in the world [within reason].

With the severe underfunding it is a shared view that an inspectorate should be introduced, as there is with social services, so that the Welsh Government can step in where a local authority is failing in funding or management of services by putting them into special measures. This inspectorate will be armed with national standards and outcomes as set out in the Regulation and Inspection Bill. These standards would also include the way in which tenders would operate and provide for a more consistent service throughout Wales.

One of the main things which were not redressed however is the 88% of young people leaving care who would like to continue having advocates, any information on the possibility of an advocate after care should be included in a leaving care pack which would include transitioning into adult services or a period of settling into adult independent life.

So that is the story so far and we will be reconvening in March and keeping in touch via email/phone.

Advocacy At The OCC

At this time of continuing austerity England has decided to take stock of its advocacy and see how well, or not, it is working and how the system can be generally improved through the efforts of an advisory board which will ideally advise the Office of the Children’s Commissioner (OCC) on what the ‘advocacy project’ should do and help ensure that young people’s ideas and experiences are listened to and taken seriously in line with article 12 of the United Nations Convention on the Rights of the Child. The idea of this project is to think of ways in which ideas and proposals can been taken forward to improve or reform the current system based on vigorous research and feedback from those receiving services and those supplying them.

Today was our first meeting where the basis to the project was explained, it had already been put out to a tender which was won by the University of Central Lancaster. Three of their representatives were present at the meeting detailing what they envisage the project being with the help and feedback of the panel. The general plan is set out in four stages which may overlap at one time or another for shear convenience.

As you have probably rightly assumed the first step will be to research and fully understand the policies and legislation currently governing advocacy and asking providers what services they are supplying and how things actually work. The second phase will be to work closely with six selected advocacy providers to do some detailed research on current processes and experiences; this is where the overlap is likely to occur as phase three is to engage with young people receiving [or having received] advocacy services as well as other stakeholders such as local authorities, care homes, schools and other institutions which may benefit from services.

All of this engagement and research will enable the OCC to work towards developing a standard to which all advocacy providers should work which will be published in a final report. The last real framework of any kind was published in 2002 under the Department of Health, this is vastly outdated with advocacy coming under the banner of the Department of Education for several years.

From our round table discussion it was clear that there is huge disparity in the availability and funding of advocacy across England, the same is of course true in Wales. Currently half of local authorities who responded to a freedom of information request contracted advocacy to national providers, just over a third used local or mixture of providers whilst nearly twenty percent were using in-house services.

A number of us were concerned with the use of in-house services and the possibility of bias against a child or young person, although independent advocacy is funded by the local authorities everything else [except the sharing of necessary data] is separate which may be why there is disparity in records between the needs and outcomes of some young people receiving services, this may however also be down to quotas or mere box ticking exercises.

Just from today’s discussions it is clear that changes need to be made to the current system, and this is a good first step. I have left a lot out at this stage as figures need to be finalised and everybody was being brought up to speed, but everyone seems to be on the same page with a similar view as to what needs to happen so we shall see over the coming months what will happen and try to plug sny gaps in services.

What is interesting to me is that only the other month Wales also started looking at the future of advocacy independent of the English OCC so maybe some discussions have gone on behind closed doors? Either way it is something to keep an eye on, especially with the possibility of different outcomes and ideas.

Protect Child Privacy in the Family Courts!

Over a year ago now I started working with NYAS on stopping the media from having greater access to the family courts, now this is not because we just want something to fight about but rather because there is a whole hot of issues the government have not properly considered including the great potential for jigsaw identification. Rather than reiterate the issues outlined in an earlier post, or what was said in the consultation again, I instead urge you to look back and give it a read.

In 2010 the Government made a commitment to explore the views of young people before implementing Part 2 of the Children Schools and Families Act 2010, now NYAS has carried out this work independently but it has not been properly discussed or considered outside of passionate professionals with an inward view of the situation. The President of the Family Court Division, Sir James Munby, has now published guidance to implement these proposals without exploring the true and damaging effects this could have on children and young people, and all to allow more transparency, and to prove to the public that they have nothing to hide.

I have voiced my concerns over the redaction of information which may be leaked by the media, to which Sir James replied that anyone breaching rules would face a charge of contempt of court [a maximum of two years imprisonment]. Now this is all well and good sanctions being in place but the power to redact this information is far beyond that of the courts; information can be on foreign servers which would require intergovernmental cooperation, it could be disseminated onto other websites, people can save and screenshot information and there is no way in which newspapers can be recalled. Look at my previous post on the power of redaction and consider WikiLeaks and alike.

Although two years imprisonment may be a deterrent information may still be wrongfully disseminated, especially with the media having proposed access to court documents, which can have a lasting and damaging repercussions on a persons future. Regardless of the law it is expensive, upsetting and timely to take a case to court for a breach of privacy, wrongful dissemination or discrimination; it is not only employment which may be affected by these potentially damaging reports but also future relationships with many people admitting to Googling potential partners and friends.

The courts excuse for this greater access is for greater transparency, and yet so far they have negated educating the general public on the information already at hand with sites such as BAILII publishing anonymised cases on a daily basis to which the public [and by proxy the media] have full unfettered access. In this way cases are still able to provide privacy without much of a threat of jigsaw identification or private matters being disseminated beyond what is necessary to provide a fair case.

If we are to give the media full unfettered access we should consider cases such as McKennitt v Ash [2008] EWCA Civ 1714 where a singers friend published discussions in a book which were thought to have been in confidence. It was held that some of the information was disseminated due to the fact that it was thought to have been in confidence and therefore there was a breach of Article 8 [right to respect for family and private life], there is no provision in this article to allow the information to be disseminated via the media, the same is true of the majority of cases which would pass through the Family Courts if the media were permitted greater access. There may be a fear of releasing information to the courts in case it is wider publicised.

In the case of breakdown of relationships there is also X v Persons Unknown [2006] EWCA Civ 2738 where an injunction was sought to stop comment being passed on the state of X’s marriage without actually knowing who would pass this comment. Now this case sought the idea of a contra mundum injunction, [a worldwide injunction,] this is something which would be impossible to enforce but there is the potential for similar injunctions to be sought before a case takes place to ensure the privacy which we currently have come to expect from court proceedings, without which, as I have just said, information may be withheld from the courts, or cases entirely, for fear of publication.

Regardless of the courts idealism it is necessary to consider the knock on effect of dissemination for those seeking judicial intervention. In the case of Re Stedman* [2009] EWHC 935 (Fam) the parents disseminated the information to the papers about a 12 and 13 year old who had a child, a DNA test was sought which revealed that the father was actually a 15 year old. This lead to the mother being shunned in the local community, the original young person finding out that they had been bringing up a child which was not his and the father wanted a relationship with the child. As you can imagine this was a difficult situation having devastating repercussions on the involved parties mental health and well being; the media made things even worse by making their private matters public.

I also have concerns over information the media may acquire outside of the courts. Now I am not going to go into the News of the World and their abuse of technology or Nick Cleggs abhorrent idealism on not prosecuting the media for breaking the law in relation to acquiring stories even with situations such as the outrage resulting from Milly Dowler’s phone being hacked as I have mentioned that in the past, but information is freely available on individuals which may be personal and intimate without them realising which will lead to identification and could be published without permission, just see the video below for a demonstration.

I have outlined some concerns above and in previous posts but now it is your turn to get involved with me and NYAS. We have set up a petition urging the government to deliver on their promises of 2010 to hold a public parliamentary debate on the proposed access of the media to the Family Courts, in total we need at least 100,000 signatures for this to be considered so please sign using the link below:

https://www.change.org/p/president-of-the-family-court-division-please-don-t-put-children-and-young-people-at-risk-to-protect-the-courts

 “They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where bullies feed on personal discomfort and embarrassment.”

Lord Justice Ward in ETK v News Group Newspapers Ltd [2011] EWCA Civ 439

*East Sussex County Council, Penelope Stedman, Steve Stedman, Nicola Patten, Denis Patten, News Group Newspapers Limited, Channel Four, Tyler Barker, Maisie Stedman, Chantelle Stedman, Alfie Patten (by their respective guardians)

Safeguarding, Privacy and Respect for Children and Young People (Part 5)

As you know we’ve been working on stopping the courts from granting greater access for the media to the family courts, if you are not sure what has happened so far just look back at my earlier posts.

So this time we had the opportunity to address the Association of Lawyers for Children at their Annual Conference, this is a collection of amazing minds who work to better the lives of children and young people including a cross section of judges, solicitors and barristers; and I have to say there were a number of faces I recognised from working with NYAS in the past.

We gave an over view of our findings from the consultation, ultimately What the hell were you thinking?! If you pardon the paraphrasing. I chose to describe the balance of articles 8 [right to a private and family life] and 10 [freedom of expression and information], it was such a daunting prospect to be lecturing on the law to professionals in the field although I did put in a dig about the English lacking behind on implementing the UNCRC.

Following us vocalising all of our concerns around greater access it was time for me to shine as a digital technologies consultant:

I began by highlighting the attempts various governments have taken to remove WikiLeaks and the fact that Julian Assange is still living in exile with all of his articles intact. A second website I felt it was important to discuss was that of SilkRoad [an illegal online marketplace], and that we actually only access about 10% of the internet whilst the rest is known as the dark web, now SilkRoad was removed by authorities and 2.0 emerged just weeks later highlighting that information can be transferred and re-uploaded without much hassle. The third website I discussed was that of No-IP.com, twenty three of their domains were seized by Microsoft [affecting 1.8 million websites and devices] for infecting visitors devices with various malware, these domains have since been returned with no real safeguards from the situation repeating itself.

With technology it is important to know where advances are being made, with DNS providers now providing switching for free it is easier to host websites. When a server is taken out the service will now switch servers so that the website is not down for a noticeable amount of time. A lot of the time when a website is taken out by an organisation they take out the DNS (Domain Name System) meaning that the server and all of its information is still accessible if another domain is pointing to it.

After discussing the technological implications of websites it is now important to look at the changes to technology regarding Google Spain v AEPD and Mario Costeja González. Since the decision Google has received 167,865 take down requests concerning 569,993 URLs, out of this only 199,263 (41.8%) of URLs were removed; out of these the UK alone has submitted 21,679 requests concerning 74,137 URLs out of which only 22,538 (37%) of URLs were removed.

Here are a few reasons people requested take downs from the UK:

A media professional requested that we remove 4 links to articles reporting on embarrassing content he posted to the Internet. We did not remove the pages from search results.

An individual asked us to remove links to articles on the internet that reference his dismissal for sexual crimes committed on the job. We did not remove the pages from search results.

A doctor requested we remove more than 50 links to newspaper articles about a botched procedure. Three pages that contained personal information about the doctor but did not mention the procedure have been removed from search results for his name. The rest of the links to reports on the incident remain in search results.

A public official asked us to remove a link to a student organization’s petition demanding his removal. We did not remove the page from search results.

We received a request from a former clergyman to remove 2 links to articles covering an investigation of sexual abuse accusations while in his professional capacity. We did not remove the pages from search results.

Some of the information which was removed, was only removed from search results on Google and is still searchable from other search engines and the websites on which they were posted; there is also nothing stopping more links from emerging at a later date, or even the contend from a removed link from being re-posted at another address.

The difference with Google’s removals is that it is links from their own services and the content is still out there and very much available through other services. Out of the above reasons you will see that one is actually for the removal to a link containing information they themselves had posted, this is information they lost control over and was not able to remove so instead they tried to request that it was less searchable.

We will be meeting with the President of the Family Court Division again in December to discuss the developments since our last meeting and where things will progress in he future. As usual keep an eye out for the next installment.

NYAS Digital Technology Consultant

Today is not one of my usual meetings or blog posts, rather it is the beginning of my career as NYAS Digital Technology Consultant [and record of the day for personal reflection] where I will be training and supporting staff alongside the Digital Ambassadors* to improve their services and promotion.

The past few months you will be aware that I have been involved in a consultation regarding greater access for media to the Family Courts, this is something I strongly oppose along with many other children and young people which is why my first real task was to research the best platform for us to host a petition calling on the President of the Family Court Division to halt any changes to access and to urge parliament to hold public consultations/ parliamentary debates taking into consideration the views of young people. [Keep an eye on this blog for a link to the petition.]

Now I have promoted one of my key interests we also had to go over what funding was available to us (this would have to cover training, publicity materials, stationary, travel, coordination, etc.) along with how best to recruit new members. The idea of the Digital Ambassadors* is for them to help maintain and update our social media [Facebook and Twitter] along with contributing to a regularly updated blog on the young persons’ section of the website.

Along with the social media aspect, we also want to develop a mobile application so children and young people can get information and in contact with NYAS services if they so wish. Again we have to decide the best way to market this with some young people, but the ground works are being set so they can get involved straight away rather than having to wait for agreements to be made with companies.

On top of this we also intend to train young people on developing videos for our [proposed] YouTube channel. Training will be provided for all aspects of the project where it is wanted which will enhance our young peoples’ CVs as we can provide them a certificate detailing what they have been involved with.

To recruit new young people we discussed a variety of ideas including weekly competitions where a subject would be set for the blog, young people could contribute for the chance to win a prize, and we would then tell them all about the project and offer further interaction. We are still in discussions with how to best get the initial message of the competition and project out there and what to offer as prizes but a lot was decided on the day.

*England

MEGA Young People!

So today was the first meeting of the North Wales MEGA (Ministerial Expert Group on Advocacy [for young people]) where we will be discussing the various aspects of advocacy and what changes we think should be implemented. Now this is a pilot reference group for North Wales, and as such only consisted of Chris (Voices From Care), Anne (Senior Civil Servant), Mike (Chair of MEGA), a member of NYAS staff, myself and two other young people.

Essentially this group will decide the future of  Tros Gynnal, NYAS and Action for Children who are [at the time of writing] the only advocacy providers in Wales for children and young people. In South Wales a group has already been established which has discussed some of the issues coming up along with providing a role reversal for Gwenda Thomas (previous Deputy Minister for Social Services) and Jeff Cuthbert (previous Deputy Minister for Skills) to experience the world from the point of view of a young person.

When you are a young person first signing on, if you are unfortunate enough to be in that situation, it was felt that job centers should be able to advise on an advocate who will be able to in turn advise the staff on a young persons predicament (such as not having parental contact) as well as advise a young person on why they may not be eligible for certain support they may otherwise just be refused [with no explanation]. This was actually piloted within a few days at a Job Center Plus. They may also sign post to services such as Meic where short term support may be required.

The group has also undertaken a review of Meic, this has included secret shoppers who will phone/text/IM/email with an issue and see what they actually think of the responses received. This is something I have taken part in as part of the South Wales team and it did improve the service to an extent. Meic is an independent advocacy service where anyone up to the age of 25 can inquire for support or signposting to a service specific to their predicament.

One thing the North and South felt passionately was that training needs to be provided to all professionals involved in the care system or with children on advocacy and what it can actually do. Mike [and a team of experts] has worked to calculate how much LAs (Local Authorities) should be spending on advocacy, it came out at around £400,000 although research shows that around a third of LAs are spending less than half that amount and North Wales has cut it’s contract from £240,000 to £100,000 which is worrying to say the least.

Now as well as these problems children and young people are not informed of their rights until it is too late, there is a lack of knowledge for those entering, transitioning or even just involved in the care system; as a group we believe this is unacceptable and there should be more support available and reminders of rights.

When a child first enters into foster care they can feel nervous, or even not allowed to get a snack from the fridge so it is important they know their rights as well as feel comfortable and have a consistent figure they feel they can trust and turn to at any point in their time in care.

This is just a brief overview of our first meeting which was run on a ‘play it by ear’ basis, next time we are hoping for a few more people and plan to link up with the South Wales team within a few months.