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