Publishing information about family proceedings

Many moons ago in June 2009 I wrote a post entitled Writing about family proceedings – a blogger’s guide. A lot has changed since then. Although, oddly, the law has not. What has changed are judicial attitudes to free speech. Some would say what has changed is the balance between free speech and privacy.

So I thought I ought to take a look at that post and see how accurate it now is, in light of a wealth of judicial guidance.

Actually, it’s not as bad as you might think. The references to the Family Proceedings Rules 1991 are now out of date, but the substance of those rules survives untouched in Part 12 of the Family Procedure Rules 2010 and Practice Direction 12G. And pretty much everything else is still governed by the same law (the changes I anticipated at the time through the Children Schools & Families Act 2010 were never brought into force and were ultimately repealed in April this year).

My eleven points are still good, because what I set out there is the framework and the starting point, rather than where the balance is likely to fall in an individual case.

But I do think its worth noting that since 2009 there have been examples in published judgments of individuals being sent to prison for contempt of court after publishing information in breach of a court order, and that there have been judgments where the court has permitted far broader publication of information than many would have anticipated in 2009. For example in the case of Re J (A Child) [2013] EWHC 2694 (Fam) a father was retrospectively permitted to publish videos of the removal of his newborn baby under an EPO – but he was not to name himself or the child. It is now far more likely that the naming of social workers and professionals will be expressly permitted by the court – if asked – and that parents will be permitted to tell their story, albeit usually on an anonymous basis.

Overall, the judiciary are more alive I think to the need to permit parties to proceedings to tell their stories and air their views about the process and outcomes of family proceedings, as long as that is compatible with the safety and welfare of the children. Although the media still refer to the family courts as secret there is ever more clear water between the privacy that is justified and necessary in individual cases and the blanket secrecy that critics suggest continues to apply. That is to say, the default position as set out in my 1-10 points is still in favour of privacy, but where justified on application the court will modify the applicable restrictions. Some would say no application should be necessary and the default should be openness but that is a fundamental shift that only Parliament can achieve.

Unforced Error

I watched ITV’s Exposure – Don’t Take My Child on catch up last night.

I have mixed feelings about it.

It is a piece of TV that raises important and difficult issues, and contained some hard hitting and well argued discussion of some of the problems with the child protection system in England & Wales, from some eminent sources including Martha Cover, chair of the Association of Lawyers for Children, and Mark Hedley, recently retired High Court Judge.

But ITV need ratings, so they spiced up the substance with predictable soundbites, horror stories and hyperbole. And just for good measure they chucked in a whole load of Ian Josephs and tossed it all up. What an unholy salad.

Those of you who read this (or any) family law blog will be familiar with Ian Josephs. He pops up time and time again on the comments thread of many posts, his views are well known and oft repeated. He is opposed to all non-consensual adoption (“forced adoption”). He is entitled to that view. Many hold it. We regularly disagree about issues around adoption and care proceedings, usually politely. No doubt each of us feels that we are providing an important informational counterpoint to the other’s wrong views.

This programme began with Ian Josephs and an observation that what we do in this jurisdiction – by sometimes removing babies and children from their families and placing them for adoption without their parents consent – is not something that many other countries do. But in reality this was a programme not about whether we should have a some “forced adoption”, but a programme about when that is appropriate and how often it should happen. But somewhere along the line the producers got those two issues a bit muddled.

There was a great TV programme waiting to be made, expanding upon Martha Cover’s lucid points about the tension between 26 weeks and adoption as a last resort, and drawing out Mark Hedley’s observations about a tendency towards sloppy analysis being a chronic problem. A programme looking at the impact of recent decisions of the Supreme Court and Court of Appeal on the rigour with which courts are scrutinising plans for adoption – both the sloppy and the well thought through ones, where adoption may exceptionally be truly the last resort. Sadly that increased scrutiny, the emerging realisation by Local Authorities that they need to properly consider all reasonable means to avoid adoption, was not a part of the story that was told. It was as if Re B never happened.

Every time I thought the programme was about to go there and explore those stories, every time Martha Cover said something wise, up popped Ian Josephs with his advice to women to flee the jurisdiction, his golden rules, his unshakeable belief that forced adoption is always wrong and his interventions are always helpful…

In the context of a series of case studies of families who had apparently been done an injustice the platform given to campaigners who encourage vulnerable parents to flee the jurisdiction and to refuse to cooperate is really concerning. It may make good TV (arguably) but showing the web page with the golden rules on it is in my view just irresponsible. Quite apart from the fact that, in my view, following the Golden Rules is practically a recipe for a negative outcome in care proceedings; even Ian Josephs, when asked, will heavily caveat his advice on when to flee and when to stay – but no such caveats found their way into the programme. There are times when Ian Josephs does not advise running – but those nuances were utterly lost on the cutting room floor. This programme will have done nothing to encourage or assist parents to engage with the child protection / court process, but it may well have convinced a few to run or at least to disengage – a course of action which could ultimately result in them losing their children when they might otherwise have kept them. And although there was a moment when Josephs was asked some mildly challenging questions about whether or not he was putting children at risk, nobody made or attempted to make the case for some non-consensual adoption sometimes (even if far far less than now), and nobody articulated the position contrary to the Josephs position, namely that there are significant risks associated with the Josephs approach – in which I include the risks both to the innocent parent and the child of either an abusive parent or an innocent one. No counterpoint.

There are injustices. The government pro-adoption rhetoric is insistent, simplistic and chilling. The 26 weeks time limit causes much anxiety amongst many legal professionals (and parents) for good reason. There are cases where the wrong decision is made, where children are taken from their families when it is not truly necessary. Some examples of this were shown on this programme, and the description by one set of parents who were ultimately cleared of injuring their baby of being caught up in a process are familiar comments to those of us who represent parents. Those are grave, grave injustices, huge family traumas. BUT. The risks of running, hiding, or ignoring are far far higher in most cases than the risks of facing the issue and challenging the social workers through the proper processes. And some of the case studies were very lightly sketched indeed, rather selectively portrayed or not really representative. The father from Re J (A Child) [2013] EWHC 2694 (Fam) featured heavily but the impression was very much of the removal having been wrongful or without basis - it was said in terms that there had been no imminent risk, and yet as a matter of law the court must have approved an EPO precisely on that basis. The RRO judgment in Re J does not tell us the outcome of the case, and does not indicate any irregularity in the making of the EPO. It is of course difficult to report fully fleshed out cases due to reporting restrictions, but the effect I suspect of this collection of case studies will have been to instil fear rather than to inform, to induce panic in parents who really do not need to panic, in parents who really need to keep a level head and think carefully before they act.

Definitely worth a watch before catch up runs out, but a slightly disjointed experience and a bit of a missed opportunity.

 

Ian Josephs will of course have a right of reply to this post – although not a platform to repeat all his well known views several times.