Presidents’ Conference

Monday 16th May, the President of the Family Court Division, Sir James Munby, held his annual conference where various members of the judiciary are updated on certain developments, including the anonymisation guidance produced by Dr Julia Brophy. Unfortunately Dr Brophy was unable to attend, but myself, and several members of NYAS attended on her behalf to provide an update on what has been happening.

Before starting our portion of the conference we thought it would be a good idea to get them in the right frame of mind, and starting to consider how they would feel if their personal details and secrets were published without their knowledge or approval. To do this we had them write down a little known fact from their childhood and put them into an envelope, we then collected them and pretended we were going to read it out loud. The interesting thing following our presentation was that one member approached us to ask what we were going to do with the envelopes as he wanted to keep his fact private, where as another member openly told the conference his little known fact during the question and answer sessions.

Once our introductions were done I had the pleasure of telling a room full of judges and magistrates what the law, and background to our work was. For a background to our presentation you should look back at my previous posts,[1][2][3][4][6][7][8] and head over to Amazon to pick up a copy of my dissertation.[9] We also discussed our various meetings with the President.[See previous links]

The main point of our presentation was to present the findings of “A review of anonymised judgments on Bailii: Children, privacy and ‘jigsaw identification’” and “Anonamymisation and avoidance of the identification of children & the treatment of explicit descriptions of the sexual abuse of children in judgements intended for the public arena” both of which I have written about in previous posts.

The President has both read and disseminated the draft guidance above, due to the importance of any decision he makes relating to this subject he is yet to publish his own guidance, although he is hoping to by the end of this calendar year.

I have not written this post to rehash what I have already said, I think it is important to address some of the questions which were presented at the conference and clear up some of the questions you may have as a reader of this blog or any of the research.

It is not my opinion that there should be a blanket ban on reporting in the Family Courts, or that judges should not be publishing their judgements to BAILII, although this is a current issue which was the subject of research by Dr Julie Doughty. In fact, Family Division Liaison Judge Peter Jackson mentioned that young people involved in a case he heard were glad that their story was published, although whilst sitting on a Transparency Project panel he failed to mention that he first obtained their permission  to include illicit details of their abuse before publication.

If a child or young person is competent enough to fully understand the potential repercussions of information being published, and gives their full consent, without any pressure or coercion, then their Article 8 [ECHR], 16 [UNCRC] and 12 [UNCRC] rights have been respected. It may be beneficial, and provide a sense of vindication, or being listened to, to have intimate details of abuse be published but this is something which will very much have to be taken on a case by case basis.

Judges have to be careful where a child or young person does not want to be identified, in Dr Brophy’s research on jigsaw identification young people were able to identify subjects in 33% of cases from small details which were pieced together. 13 out of 21 of the judgements looked at contained specific information which would enable young people to be identified by peers and local communities, 24% of the judgements were covered in local or national media, and 33% were on social networking sites.

One member of the conference asked how can they stop parents or grandparents from posting about a case when they have warned them not to, this was how the subjects of one of the cases looked at were identified. There is various legislation which a judge can use to limit publication, which you can read about in my dissertation, which can lead to an unlimited fine or prison sentence, from what research I have done these are never followed through so could it be a case of making an example of those who disobey a judge, and could it be that where there is a fight for custody that this demonstrates a lack of acting in the best interests of a child? Where an order is breached it must also be asked how should the law change to try and recompense the child affected.

When it comes to online publication it is now easier than ever to search for people, when legislation was brought in on reporting family proceedings in 2006 Facebook was a fledgling site rather than the behemoth it is today, with over 50% of the global population now having an account. It is also easier to back up websites, share another persons posts, take screen shots, and search. Legislation needs an overhaul to keep updated with technology, this includes how judges anonymise their judgements, and how reporting should be governed.

If the media are allowed greater access to the courts, it has been suggested that a watchdog should be set up, but this raises yet more questions. Who would run it, how would it be funded, what powers would they have, who would they answer to. Any consideration about transparency and the family courts throws a tool box in the works, not just a lone spanner, it is no wonder the President is taking his time.

In my opinion the media inspire disquiet with their scandals, so they are not the answer to transparency. Leaflets do not really work any more. Children and young people have suggested YouTube channels and apps to try and help people better understand the court system, but this does not address the issue of secret courts, child snatchers, and favouritism, to mention a few of the unfounded accusations. Now I do not have the answer to what should be done, but I do have a quote the President needs to keep in mind:

“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.”

– Lord Eldon LC, in Wellesley v Duke of Beaufort (1827) 2 Russ 1, at para [18]

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)