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, and head over to Amazon to pick up a copy of my dissertation. 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The President has both read and disseminated the draft guidance above, due to the importance of any decision he makes relating to this subject he is yet to publish his own guidance, although he is hoping to by the end of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