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

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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 4)

Finally the meeting with the President of the Family Court Division, Sir James Munby has come about and it is time to get some answers to pressing questions although I expect some answers to skirt around the question, now I am no Paxman but I think me and my three sisters in crime along with the brilliant Dr Julia Brophy got some decent answers given that we only had around an hour to get all of our questions answered.

Due to time restraints we skipped over the light hearted and polite ‘What are your views and experiences?’ kind of questions and went straight into the harder hitting why has the views of young people been ignored so far. Now in true political style he outlined how there is a difference between listening, accepting and agreeing with young people, or consumers of the judicial system which I agree; but there is also a difference between ticking boxes and acting upon the views, wishes and feelings of you consumers. The President outlined that he was keen to canvas young people more to gain their views and opinions, and that it had not been done enough in the past. I think we can all agree with him that no decision on transparency will be unanimously agreed upon, but I am not so sure about his views that half will always be upset with any decisions made.

In 2010 the government had promised a consultation with young people before moving forward with any more work on allowing the media greater access, the President explained that the legislation had been passed by a previous administration and it was his predecessor that had failed to act. The legislation had apparently not been enacted and was repealed before coming into force and that a lot of the previous work was done in private.

Now our next question may seem a rather contentious point, but we wanted to know if he had considered the consequences of media exposure for young people who have not consented and may be affected in the future. The President expressed how he had probably passed more judgements on this matter than many other judges and that decisions were always made whilst weighing up the immediate and future impact the exposure may have. The whole question came back to the fact that he felt anonymity could be achieved and that redacting too much information would just make a case insignificant ramblings (my words, not his).

Now in a tangential manner we went onto the consequences and he stated that there is no more unkind a person in the world than a bully in the playground who wants to be nasty. I think these words are something on which we can all agree, which is why more information needs to be redacted in order to illuminate the treat of jigsaw-identification and the consequences there of. With the access we have to information on one another through the internet this is easier than ever, I took the time to explain that identification can be made through meta data in images as well as their linked articles or social networking pages online, after this and some discussion on the internet as a form of media Sir James Munby proclaimed that ‘We have to try and do something about the web’ to which I giggled to myself thinking of all the recent discussion on freedom of the press and ranting’s of Jeff Jarvis (City University of New York, Professor of Journalism) on regulation of the internet.

To try and give our new friend some alternates to greater access for the media we discussed court open days and alike to which he replied that there are all sorts we could be doing and that some local judges are taking the initiative to organise court open days and such. His argument is that these are not accessible enough and that people get their information from social media and the news, to this I mused ‘Hasn’t he heard of eBooks?’ and the endless times the death of print media has been discussed over recent years, was it I or him who was missing something here? I mean there is more to be discussed later on but he’s missed our point.

Next was my turn to point out what had happened with Mirror Group and the phone hacking scandals which he must have seen coming at some point; can we actually trust the media with access to the most vulnerable people in society at probably one of their most vulnerable point in life? Apparently he believes it could be strictly controlled what the media print and that the threat of two years imprisonment for contempt of court is enough to keep the scape goat of an editor from printing anything identifiable or unethical.

I had to interject at this point and steal my colleague’s forthcoming thunder by asking if he thought these penalties were enough when they have potentially life damaging consequences. It may seem a shock but his response was blunt that they knew they could get away with hacking and this was because they were in bed with the police. Now the media have been allowed to attend family court proceedings since April 2009, this is something that the President is unaware of the MOJ (Ministry of Justice) monitoring, or the consequences there of.

Now to our knowledge no one has been harmed by these changes so far, and there are more cases reported on BAILII than ever before which is free to access globally. Now this being said he did admit that he had read about a judgement he had passed in a paper, but he had not recognised the case because it had been so mangled by the press and they had the wrong date. He claimed that it was most probably derived from the BAILII website, so doesn’t that prove our point that the media cannot be trusted?

Pointing out the gaffs of the media is easy enough, so we asked what he thought about people not knowing how to use their security settings appropriately on social media sites and the consequences there of to which we could have seen his answer coming a mile away that there is an endless struggle to ensure they [young people] are not identified and that Judges ensure that certain information is not published such as involved LA’s (Local Authorities) and particular institutions.

To this we circled back to the media breaking the rules and tried to drive home that once something is online, it’s online. If you take out a server, another can pop up within minutes. If you take out a publisher, someone abroad and outside of the jurisdiction of the UK can continue their work. He did not seem to get the fact that the web cannot be redacted and once the damage is done it can be permanent. No sanction can compensate for the loss of a job, friendships or even the cause of, or exacerbation there of mental health conditions.

Our final question, other than a quick photo op, was would he like his most intimate and vulnerable aspects of life spread across the tabloids with no control over what is printed and where. The answer is none of us would, but then he went on to defend his view on the matter of media in the family courts by stating that there are two irrevocable conflicts, the interests of the child and family and that we cannot run a private justice system where the state are taking peoples children away.

I agree with the two conflicts although is the media the right way to do this? We cannot run a system where everything is private, so we already have public access to BAILII judgements which are anonymised and we know that judges cannot really sensor the media.

Now I am proud of the final statement I left him to mill over in his mind, which is a quote from the Court of Appeal regarding media access:

They [the family] 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.’ – LJ Ward (ETK v News Group Newspapers Ltd [2011] EWCA Civ 439)

We are due to meet again to discuss things further in December.

Safeguarding, Privacy and Respect for Children and Young People (Part 3)

As you may be aware from recent posts, his Right Honorable Judge Altman invited myself and several others from NYAS to inspect his court, this is in no way a comprehensive or official report but rather my musings on the day and my personal opinions unless otherwise stated.

So I arrived early, as I had spent the night in a hotel around the corner, awaiting the arrival of my three companions for the day and partners in mischief. I wandered the foyer aimlessly for over half hour and was not approached once, except for when a security guard went for some fresh air and asked if I was okay in passing; now it may have been because I was smartly dressed and had a suitcase and bag that they thought (rightly may I add) that I was there in some sort of official capacity, if however I had been a young person this would be unacceptable. After a while our escort for the day cottoned on to who I was and we waited for the others.

When everyone arrived we had a brief hello before walking outside and pretending we were normal people there for a proceeding, due to my milling about I knew where the court allocations where but there was no clear indication and only a small A4 sized piece of paper indicating to have your ‘Court Case number ready”. There was no real indication as to where you should go or what you should do at this point.

We proceeded to the security check point where we walked back and forth, as security watched, looking as lost as a sheep in the mince sauce isle at the supermarket. After a while I ensured everyone was aware of what to do with their mobiles, and that they had done so before proceeding to put our things through the x-ray machine and walk through the metal detector without prompts. The member f security sat at the machine (playing on their phone) was telling us what items had to be checked although you could not hear them properly and the guard at the check in desk had to shout over several times to double check.

Once that kerfuffle was done with we were finally faced with some blunt instructions in black and white on a pin board, and another board with cases next to it which we stared at blankly painfully waiting for somebody to ask if we needed help. Eventually we walked over to the reception desk where the receptionist very helpfully looked up our case number and told us exactly how to get to our designated court room, as well as where the amenities were (although this could have been because they were on the way through).

When we arrived on our floor there was no one to greet us, instead you were greeted by lawyers having to take meetings in the corridors because there were no consultation rooms available, children sitting on the floor and a rather uninviting office for the PSU (Personal Support Unit). As you turned you were faced with a daunting door for the CAB (Citizens Advice Bauru) before finding the corridor to an unmanned usher’s desk, and to that how is a child or young person supposed to know what an usher is or what they do?

As we stood in front of the desk the usher arrived, not in robes or a suit but rather casual attire with no indication as to their role. This man may well have been someone off the street who wanted to play for the day for all we knew, at least in a criminal court you could think ‘Oh look there’s another person dressed as Batman ready to help!’ Trust me I have seen lawyers amusing themselves with that one. Anyway the usher told us that our court had been reallocated to court 1 on the ground floor, but not where on the ground floor or that we had to sign in with the usher down there. When we finally got to the ushers desk we had to be explained the attendance sheet, as a lay young person you would just be completely perplexed by the legalese.

Finally we got escorted into the court where the allusive Right Honourable Judge was sitting and awaiting to explain what we were there to do, and more to the point what they intended to do with both our qualitative and quantitative data. All of the courts had nice natural lighting or were in large rooms with the best artificial lighting that could be fitted allowing for a more open and less oppressive vibe to the building.

Now I have heard of cases before from kind judges who allow young people into their courts similar to the one he allayed, whereby a young person was in the middle of a case deciding where the young person should live. The judge actually instructed for a chair to be set beside his so that the young person had direct input and was able to hear the case. Although an unusual one I think that acts like these leave the young person feeling empowered and listened to as they sit above the court. Now in cases of giving evidence video linking is available, even from other courts which would mean that a young person would not necessarily have to face those involved and could be made more comfortable than having to appear in the court itself.

At this point I pretty much gave up on taking notes on the paper we was provided and resorted to my trusty NYAS notepad. We were taken outside of the courts to view the new proposed entrance for young people around the corner so they did not have to face anyone involved in their case who they did not want to or who may be intimidating, which I think we can all agree is the best for all involved. Now as of yet there is no clear signage, bags will have to be intrusively searched (unless an x-ray is installed as well as a new metal detector), the young person will have to ring a buzzer and speak on an intercom waiting for security to arrive and there are no toilets which may be the only thing on their mind after a long journey.

As we entered the proposed rout there was a plush red carpet, well lit corridor and all the back entrance to each of the ground floor courts. Unfortunately as we turned the corner this beautiful façade was killed by a dark and oppressive stairwell, with a cramped and dull lift leading to the fourth floor where they were most likely to be going.

Now we had already been to this floor to try and find our first allocated court (21), but we had not seen the consultation rooms which all read ‘ENGAGED’ even though most were left derelict, and I use this word purposely as they have pale walls and dull uniform furniture and each looked as if it had been evacuated in a hurry.

We left this section to then see the proposed contact centre with the working title ‘Building Blocks’ which sounds more like a barrier than NYAS own ‘Butterfly Room’. I do invite you to get in contact with a new suggestion for a name until early November 2014. These rooms were not yet made to measure but we had a sense for the plans, being the only rooms with any colour and (although needing more comfortable and modern) laid back seating. Whilst in these rooms we discussed that there would need to be age appropriate amenities, a kitchenette had already been discussed but we though age appropriate toys and media would be necessary as well as access to the internet and perhaps some sensory toys for the less able bodied and babies.

Just before we retired to the Judges dining room where we were waited on hand and foot by the judiciary we got to meet with Anne Dillon, a barrister and member of the trustee board of contact centres. She asked for our feedback and we told her what I have already said as well as suggestions for televisions, computers, consoles and other modern conveniences many of us have come to take for granted.

Now in the dining room we were met by a few district and circuit judges, some of whom took an instant liking to us and were keen to get our insight and tell us about what they do and wanted out of our unique visit. It quickly turned from several convocations into a round table discussion where we gave a quick summary off what we had observed and the potential problems, one circuit judge even asked me to provide a template idea for them of what I thought should be in an introductory letter such as where best to get a drink or food before going into the court as they do not have any real amenities other than water fountains which I had not spotted and any signage for seemed completely absent.

The final part of this saga was when one of the Judges who had just presided over a case involving a young person who was receiving services from NYAS took us to his chambers before we tried to track down the young person to get their perception of the court and what they had just been through (with their permission of course). Unfortunately this young person had already left and so it was our turn to retrieve our belongings from security and meet with Dr Julia Brophy before our meeting with Sir James Munby which shall be discussed in my next post.

Safeguarding, Privacy and Respect for Children and Young People (Part 2)

So in my last post I negated to insert a link to the consultation which you can find here: goo.gl/VGY8X7

Now as time is approaching to meet with Sir James Munby next Thursday, President of the Family Court Division and I think a few questions need to be answered about what undoubtedly will be a breach of a child or young persons Article 8 (ECHR) and Article 16 (UNCRC) rights; that being the right to privacy.

Before we get to that can we in fact trust the press with access to such delicate and intimate details of people family lives? We already know the travesty which amounted from Mirror Group’s (Trinity Mirror’s) actions including the hacking of Milly Dowler’s phone which was a disgrace, and seemingly wide spread practice, within the organisation at least. I am not trying to blanket term anyone but I have found that many people are unaware of how to properly use their security settings on social media which could lead to some journalist publishing something which was not intended for public audience, or which may put a certain spin on their story or lead to the identification, or be it wrongful, or a child or young person who is or has been involved in family court proceedings.

The rights of the press to report on issues has always been a contentious matter, and in fact I think it is only right that we bring up the following quote

“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.”

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

Now this case is referring to the right of an injunction for an individual who had committed an infidelity whilst married with children. In my mind it seems pretty clear that this would also refer to any family court proceedings as such proceedings would already put the family under great strain and undermine what is thought of as a normal family by social norms. Unnecessary stress is not needed at what is potentially the most stressful time in a child or young persons life, nor is the publication of their most intimate details, as is said above the playground can be a cruel place, but so too can be places  of work or the extended family itself.

Now that you have the idea of the lack of respect from the printed media consider this, what good is a fine or imprisonment to a child who has been socially scared and may be prejudiced against because of something they had little or no control over? Sure it is a nice little deterrent but it is of no comfort when the damage is already done and irreversible.

In 2010 the Government promised to consult further and directly with young people before moving forward on this issue; to my knowledge this has not happened and the outraged views of children and young people have thus far been ignored. If the whole idea of greater access is to make the courts more transparent surely the further use of information leaflets, case studies, books, on-line guidance for general audiences, and family court open days used or expanded rather than tearing at the vulnerable to fill a few tabloids and not really educate the masses.

Now these are just a few quick thoughts resulting from a lecture, and I still have to meet with Sir James Munby and attend the Association of Lawyers for Children Conference so keep your eyes peeled for more information.

Children and Young Peoples’ Experiences as Inpatients in Mental Health Units

Before I regale my tale of the day I must first begin by saying there is a great respect for anonymity and that I shall only be sharing the facts in this post rather than the names and experiences of the truly wonderful young people I met today.

The idea of today was to set the path for a campaign on mental health stemming from a roundtable discussion at one of the offices of the famous NYAS. Out of all the discussions and friendships which were forged a common theme of the day seemed to be the general disconnect between services available, geographical locations and the disconnect between the staff involved in a child or young persons’ life as they go through what is potentially the most stressful and confusing time they will ever face.

All of us at this round table discussion had varying amounts of insight into CAMHS (Child Adolescent Mental Health Services) and what those subject to inpatient care faced. It soon became apparent that those who had been through the system had found having a constant companion, whether they be an advocate, case worker or other professional, is important to provide some sense of stability.

Where a child or young person is removed from their primary carer and places in the hands of the LA (local authority) it can be confusing to know who is responsible for your care and belongings or how to get money for essentials such as shower gel and other toiletries. One member of the discussion had admitted they were left at times with nothing more than the clothes on their back and reliant on the compassion of the staff they were in the care of, there was a sense of isolation and confusion in their story which left you disheartened if you did not know the rest of their story and where they are today. It seems common place to be moved from place to place, whether it be due to the specific needs or a lack of beds for the young person to be moved from place to place; the latter can mean changing between authorities’ hands and being handed between social workers which further disassociates the young person from any sense of normality.

I realise that I have not yet mentioned education which can be completely absent in some young people’s lives, whilst other only seem to be provided with busy work in order to tick a few boxes. This may be due to a lack of funding for a proper educational professional or that work is inconsistent due to moves or needs of specific people. The fact that education is a basic right under both the HRA (Human Rights Act) and the UNCRC (United Nations Convention on the Rights of the Child) seems irrelevant, I am sure you have already read of young people being discouraged from universities or anything outside of hairdressing and mechanics; well sometimes if a young person is subject to inpatient care then these opportunities are not even afforded to them but instead a life on the bread line, otherwise known as benefits. It is not the choice of that young person but rather the only future they are afforded without fighting tooth and nail whilst having that constant companion to help them navigate the system and encourage their every step.

For those who know me you will know I am a big advocate of article 12 of the UNCRC (the right to have a voice in decisions affecting you), but many people trapped in a system of professional dictation are unaware of their rights or the support they are entitled to. It was felt by us that young people and the professionals responsible for them should be aware, and more importantly understand their rights and what help they can receive. As part of this I think any sane person would agree that it is unacceptable for a young person to be moved and have to wait for or replace all of their worldly possessions because no one person can be pinpointed as responsible for ensuring that they travel with the young person as one.

Certain LAs provide LAC (Looked After Children) with a special welcome pack which includes the details of their advocacy provider, it seems that inpatients are sometimes provided a number with no real details as to what an advocate is or why they may need them. If you are unaware of what an advocate is just let me know and I can provide you a full blog post on providing a voice and ensuring views, wishes and feelings are listened to. As our roundtable discussion looked at what was available in other areas we thought, well why haven’t more vulnerable people also been provided this information. I think without having been provided an advocate myself my life would have taken a very different path and I would not be able to educate others and fight for change of those who cannot or are facing the same or similar trials and tribulations as I have.

When a young person is taken into LA care they can sometimes fall by the wayside, social workers tend to feel that they are being looked after and in safe surroundings so seem to forget about them until it is time for them to be discharged. The lack of caring from these so called professionals means that the young person’s foster carer could have been given another young person in their place, the foster carer is not trained to deal with their specific needs or that they have been removed by one LA to another’s care so the first has allowed them to simply drop off the books.

It is no wonder that some young people seem to be so disinterested in what professionals have to say or hesitant to engage with the process when it can leave them left wondering who actually cares. Luckily two of the members of the discussion had someone to confide in, who supported them and ensured others knew what was acceptable and what wasn’t to the young person. Just one person showing that they care can change the direction of a young person’s life, both are now at university and intent on helping others with their experiences within the CAMHS and LAC.

From the discussions today it is clear that a consistent companion is the key to surviving the system, because those who have been through it do consider it a kind of badge of honour being a functioning member of society who survived great struggles and who, or at least who will, laugh in its face. Hopefully a pilot scheme will be developed in which every willing young person in a CAMHS unit will be appointed a specialised advocate, they will be able to educate the young person on their rights and ensure they are listened to because it is not always working for the best interests of a young person, but rather the young person’s interests. No one professional will be aware of what a young person has faced or how they feel, so just ask and try to at least consider what a young person wants.

These may seem ranting’s to some, but those who have seen the system will be well aware of its failings and have their own visions to improve it and I invite you to try and do so. Hopefully I will be able to link you to an update on today’s work or write another post, until then keep an eye out for my work with the family courts.

Safeguarding, Privacy and Respect for Children and Young People

A while back I took part in a consultation regarding the proposals set forward by Tim Loughton MP, Children’s Minister to allow the media greater access to the family courts, this involved meeting with young people from all across the UK to discuss the potential issues which could ensue and the objections they strongly held. At the moment the consultation document is still confidential so I can not share it with you but the views of the individuals who took part are much along the same lines with great concerns for article 12 of the Universal Declaration of Human Rights 1948, that is the right to privacy as in many cases it would be easy to identify a person who’s case may be reported, especially within smaller communities.

The idea the minister had was to provide greater transparency of the family courts in order to help people understand the system and its fairness, generally a good idea, but what about case studies and court reporting, couldn’t these systems be improved as well as more basic information given to families and young people in general rather than private issues becoming matters of public debate and [in many cases] humiliation? Also you have to consider whether the media can be trusted with such power with phone hacking scandals and their tendency to overplay negatives and wash over the positives. The media is an unethical midfield  with immoral practices being used and reports being filed before all the facts are checked.

For anyone who knows me you can probably pick out each of my quotes and say “Yeah, CJ said that”. I share the feeling with my peers that the media should be used with caution and not trusted in its entirety with the lack of fact checking and ability to twist the truth for its own means. In short we do not trust or like the media. Another reason the media should not be allowed access into the courts is that of consent, can they morally publish a picture of a baby, child or young person without their permission if they are even capable of doing it? Adults do not always do what is best for them, and when being dragged through a stressful legal battle their judgement may be clouded by a need for revenge or to vent, among many other reasons.

As you may be aware many family court proceedings are conducted in private where there is no means for the public to view proceedings  due to the right to a private life, so we must ask why the Government deems it suitable for a reporter to observe proceedings and then release details to the public. It may be illegal for them to report whilst proceedings are happening, but the lasting impact on the people concerned can affect all areas of their life and create a stigma on them in their local communities or even further afield.

Should the media be permitted to enter the courts and report on a case involving such personal details, surely this could deter individuals from seeking justice or even running a fair trial with certain facts being omitted to save face or even overplayed to cause a media frenzy in an attempt to find fame, or even infamy. A child or young person should not have to fear their problems being publicized and potentially following them for the rest of their lives, their maturity may far outweigh what the courts currently give them granted for and the stigmatization of the situation they are not responsible for could damage their social and academic life with people shunning or molly coddling them to try and make them ‘feel normal’.

It should also not be for a child or young person to learn about their personal situations through the media, nor for the court to decide what they are or are not told in fear that it may ‘damage’ them. Some individuals are far more capable of coping than they are given credit for, and it was felt during the consultation that they may be better emotionally equip to deal with such stressful situations as being dragged through court than the ‘average’ child.

There is much more in the report I urge you to read through when it is released, fortunately we have been invited to give a presentation at the Association of Lawyers for Children conference (13-15 November 2014) to convey our views and start publicizing the report as much as possible. For more information or to give your views please feel free to comment or get in touch!