Harnessing transparency in the family courts as a power for good?

On 27 September Louise Tickle and I will be running a training day for Resolution :

Harnessing transparency in the family courts as a power for good?

A specialist professional development day for family law professionals examining the dilemmas and benefits of more openness in family court proceedings. The workshop is designed and delivered by Lucy Reed, family barrister and chair of the Transparency Project and Louise Tickle, award-winning journalist writing on family law.

The workshop will use a combination of presentation, worked examples, group work and discussion, and suitable for any family law practitioner working in the family courts in England & Wales, particularly children practitioners.

The workshop aims to illustrate the challenges facing different practitioners – family lawyers, social workers and journalists – as they try to balance privacy and transparency.

In addition to exploring the pros and cons of greater openness in family law, this workshop will aim to foster a better grasp of the pressures facing family lawyers, social workers and journalists as each profession grapples with what transparency means for them. The tension between privacy and the need for accountability and openness is always difficult to manage and fact specific – this course will encourage practitioners to be open, creative and responsive to those competing issues when they arise.

The session will cover the following areas:

  • Transparency in family cases: what is it and do we want more of it?
  • Balancing human rights: freedom of expression v private and family life.
  • Open and honest? The risks and rewards of greater transparency in care proceedings and family court hearings.
  • A journalist comes to court…
  • Ethics and transparency
  • How transparency could help family law professionals do their job better

By the end of the day, participants will have:

  • A deeper understanding of what greater transparency in the family courts could look like.
  • Examined the balance between competing human rights: freedom of expression, right to a fair trial and the right to private and family life, when it comes to opening-up family court procedures and outcomes to greater scrutiny.
  • Considered the potential risks and rewards of greater transparency in care proceedings and family court hearings for all parties such as children and families, professionals, public authorities, the court system, the public and press.
  • Feel more confident in dealing with transparency issues when they arise in your practice.

If you are interested in attending further details of cost and how to book can be found on the Resolution site.

A post script about RIPA

pic courtesy of Flood G. on flickr (creative commons - thanks)

A short while ago I wrote a post about social workers carrying out surveillance of families that they work with, which has attracted a certain amount of attention. You can read that post here : Social work spies? (Yes, you over there I'm talking to you...).

I've had an email from a data protection officer at a local authority expressing concern that the article isn't correct, so I thought I'd better address it. I'm confident that I haven't in fact got the law wrong, but I thought it would be useful to explain why - and where I think wires have got crossed.

The DP Officer says this :

RIPA only applies to criminal investigations. She could never get an authorisation as it has to amount to a criminal offence for 12 months or tobacco or licensing.

For non- criminal matters you could do a RIPA type proportionality and necessity test but it falls outside the ambit of the RIPA regime as the Inspectors have previously confirmed. 

Lets break that down.

RIPA only applies to criminal investigations?

RIPA isn’t just about criminal matters at all. It defines what surveillance is and how it can be rendered lawful. An authorisation acts as a shield against civil liability (see s27 RIPA). Such potential civil liability might be framed in a number of ways, but might for example arise from the interference with Article 8 rights that covert surveillance would undoubtedly represent.

An authorisation can only be granted if it is necessary on specific grounds. Those include but are not limited to criminal matters :

in the interests of national security;

for the purpose of preventing or detecting crime or of preventing disorder;

in the interests of the economic well-being of the United Kingdom;

in the interests of public safety;

for the purpose of protecting public health;

for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department; or

for any purpose (not falling within [the above] which is specified for the purposes of this subsection by an order made by the Secretary of State.

A narrower list applies to intrusive as opposed to directed surveillance, but the point is RIPA is about the lawfulness of surveillance in general - not about surveillance only for the purpose of a criminal investigation. If further proof of that were needed, see the Home Office Code of Practice which I quoted extensively from in the original post : whilst much of it relates to police activity, there is substantial coverage of surveillance by local authorities.

Ok, next part :

Could a local authority get an authorisation?

It is quite right that a LA could probably not get an authorisation for the sort of social work snooping I’ve described. Although it is possible to see how the sort of covert surveillance we're talking about might fit under a number of the non-crime headings above, the effect of RIPA insofar as it related to local authorities was adjusted in 2012 :

  • firstly via the Protection of Freedoms Act 2012, which prevented LAs from granting their own authorisations (they now have to go via a JP),
  • and secondly via the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) (Amendment) Order 2012, which limits the types of local authority investigation that can be authorised - as our correspondent suggests to serious crime and (somewhat randomly) tobacco and licensing. So as far as local authorities post 2012 goes, the list of potential authorisation grounds is considerably narrowed.

So, whilst it might have been possible to obtain a RIPA authorisation for this stuff up until 2012, it doesn't seem to be possible now.

In my original post I identified all of this, saying :

Since 2012 there are heavy restrictions on what authorisations local authorities are allowed to grant/ apply for (as far as I understand it they are only permitted to authorise directed surveillance where it is for the purpose of preventing or detecting crime or of preventing disorder, and even then only in relation to certain specified types of crime), which is not going to apply for much of what we are looking at. Any authorisation is likely to need judicial approval (from a JP), and it needs to be in place BEFORE you start snooping (see 4.42)...

I did not say in terms that no social worker could ever get an authorisation for this sort of surveillance, but I did say that it was pretty unlikely / challenging and nobody who read my post carefully should have been under any illusion that they could simply grab an authorisation off the shelf and carry on as they were. Having sketched some of the potential difficulties, I made clear I wasn't going to get in to the detail of the authorisation regime, and that was because the primary purpose of the original post was to encourage professionals to appreciate and confront the fact that what many are doing (and apparently normalising) is in fact covert surveillance, and it is an interference with Article 8 right to privacy of private individuals. Which may have no lawful basis in the absence of a RIPA authorisation.

For the avoidance of doubt I don't think one can simply say that because RIPA no longer offers a route to authorisation a local authority 'isn't covered by RIPA' and can do whatever it likes with impunity. Whilst Article 8 arguments are unlikely to render the product of covert surveillance inadmissible in children proceedings, because of the countervailing Article 8 and other rights of the child, that does not mean that a civil claim for an interference of Article 8 might not be brought against a local authority if the facts were right. RIPA may not provide the answer, but a discussion of its definitions seemed like a useful framework for raising awareness of the intrusive, contentious and potentially risky conduct that some social workers are engaging in.

So how can we do this stuff lawfully?

My correspondent mentions in her email that I am not a criminal lawyer. I'm not. Nor am I a data protection lawyer. This is not my specific field, but it is an area of crossover, and family lawyers (as well as social workers) need to develop their knowledge in these areas. I don't hold myself out as any particular expert in the area, but I have taken care writing this and the previous post and have cross checked my view with others on the issues above, who have greater expertise than I and who concur.

In my day job I am in the happy position of being able to frown sternly when social workers describe what sounds like covert surveillance, and then sending them off with a flea in their ear to discuss with the legal department before taking another step. I don't usually have to deal with what follows but i do know I don't much like the idea of receiving a brief for a case that is dependent upon covert surveillance of a family by a social worker. It makes things very murky and is a distraction. My view from the perspective of the one who has to run the trial and try and protect a client against Human Rights Act claims, is : spell out in words of one syllable at the start that you are going to be checking up on the family so there is an expectation and an understanding that there is a necessary level of intrusion for a specified purpose. My broader advice to social workers was to go the legal department or relevant designated officers within the local authority to seek guidance before carrying out surveillance. That advice stands.

I'd be interested to know from those who work in local authority legal departments what their experience is of claims and complaints being made arising from covert surveillance by social workers (I'm not aware of any but guess there must be at least some and if there aren't it must be only a matter of time), and whether anyone else can think of any mechanism by which the risk of such a claim can be removed or reduced (is there any other framework for rendering this type of Article 8 interference lawful that I am missing? for example the police can use PACE to do some things and those don't need a RIPA authorisation). Quite apart from civil claims under the Human Rights Act I wonder whether there is a risk of adverse Ombudsman decisions, or of regulatory issues for social workers with reference to the HCPC code. There are also potentially significant issues in terms of GDPR / data protection. Thoughts welcome.

A footnote for parents

Parents should also understand that the fact that evidence has been obtained through covert surveillance does not necessarily mean that the court will disregard it, or that a claim can be brought under the Human Rights Act. As with cases where parents make covert recordings of social workers, the court when presented with such material will have to balance the relevance, strength and importance of the material as against any fairness issues that are raised. Ultimately, if it is likely to be evidence that is going to help the court make sound decisions for a child it may well be considered.

 

Feature pic courtesy of Flood G. on flickr (creative commons - thanks)

Videos of children being removed

Every so often a video is circulated on Facebook or Twitter that shows the distressing removal of a child from its parents by police or social workers. Yesterday was one such day.

The video in question came with no context to speak of, though it was clear the mother from whom the child was removed alleged abuse by an ex partner which it appeared had not been accepted by the court that ordered the removal. There is no judgment, nor really any narrative (probably just as well as that might have breached privacy rules). I don't know if the child was removed because of her refusal to allow contact to the ex, or if there was some other unconnected reason that the court thought her child had to be removed. I don't know if this mother and child were the victims of a miscarriage of justice, or whether allegations were made that could not be proved or were proved false. I don't know why this child was removed or what the risks were. Maybe it was a necessary decision and maybe not. I don't know if an appeal has been pursued or is pending.

What I do now know however - as a result of this mother's action - is the name of the child, the local authority involved, the region the child lived in, and what she looks like. People in her local community may know her or may recognise the adults. They may know who her other parent or the ex partner is and think (rightly or wrongly) that this person is domestically abusive. They may confront the person now caring for her with the approval of the court, causing her distress and disruption.

Maybe this child should never have been taken, and maybe she needs desperately to be returned home. But if that is the case this video doesn't evidence it. And nor will it help this mother to make her case. What it might do is reduce the chances of her being able to progress her contact, or to see her child unsupervised. it might get her into difficulty with the court because of breaches of the privacy rules that attach to court cases about children.

I understand why an increasing number of parents turn to social media to vent, to seek support and to campaign about the injustices they feel they have experienced, I understand on a human level why this seems like a good idea to those in pain and desperation, especially where trust in the system has broken down. But I worry these parents will only be making things harder for themselves and their children in the long run. Judges do not overturn their decisions (and nor do appeal courts overturn those of lower judges) because of a video being shared on social media. They overturn decisions or change orders for two reasons : somebody demonstrates using evidence and law through the proper channels that the decision was wrong in the first place, or something changes that means a decision that was right at the time needs to be updated. Campaigns like this serve two entirely different purposes : they make people in pain feel better (at least in the short term), and they might (in rare cases) bring about a change for future cases (but probably not in a way that will help the specific parent or child in question).

It’s important to say that such videos are always upsetting to watch. Removals are always difficult, whether they are necessary and skilfully handled, or unjustified and botched. Children love and are attached to their parents, even those whose parents are sometimes frightening, neglectful or abusive. Even abused children cry when they are taken away by strangers and when they see the distress of their parent. And of course sometimes children have to be taken temporarily away from a parent for their own protection whilst an investigation is carried out - and it may later be shown that the parent has never harmed the child at all.

I do watch these videos from time to time, because I think it's important to be in touch with the reality and consequences of a court order on a piece of paper, of what happens outside the courtroom. And because if removals are being carried out inappropriately, well I just want to know.

It's in the nature of this sort of event that people only switch on their phone to record part way through, or only circulate a clip of the most distressing part of a removal. It is very difficult to tell whether what has gone before has contributed to the distress we see playing out - and that might be inappropriate remarks or behaviour by the taking professionals, or things said by a parent which have the intent or effect of increasing the emotional temperature and turning a removal into a standoff, or which give a very clear signal to the child. Such signals to a younger child might simply make them fearful and audibly upset, and in an older child might prompt acting our or active resistance. Some children are taught by their parents from early on to fear social workers and police. Sometimes a situation becomes drawn out and upsetting and an impasse develops and those responsible for taking the child elsewhere have to take steps to bring the situation to an end safely, if not happily. Those of us watching the clips later have no idea of the risks that the social workers or police officers are trying to protect the child from. How do we weigh the wrongness of those immediate heart wrenching cries and wails against an unknown risk of harm? When people hold pre-existing doubts about social workers, about the family courts or about the justice system generally, the answer can seem - in the moment - obvious. But whatever the failures of courts and social workers are, it is undoubtedly true that some parents harm their children, and some of those children desperately need to be taken somewhere safe. How do we know whether this is one of those situations?

I've been working in this field for sixteen years, sometimes representing parents and sometimes children and sometimes social services. Some attempts at removal seem justified, some over zealous. Some are allowed, whilst others are rejected or avoided when we put a Plan B in place. In those sixteen years I have read about and heard about interventions by social workers and police which have been badly handled, bullying and cack handed, but I have also represented clients who are able to appreciate that if their child is going to be removed they are the person who can make that manageable for the child by packing their favourite things, by saying goodbye calmly and by reassuring them. Those parents are brave indeed. I should also say that whilst I have met social workers who have given real thought to how a removal should be best achieved to minimise the upset for all concerned, it is probably fair to say that often the focus is (necessarily) on whether or not the court will permit removal, which then takes place in a rushed way at the end of a court / school day with limited time for packing, planning, calming. I've also spoken to social workers distraught by the reality of their first removal. It is not a job that they relish even if they hold a strong view that the safety of a child makes it necessary. I don't think either social workers or police officers get sufficient training in this area, and suspect that often the drive to get in and get out without compromising the physical safety of anyone involved overrides more subtle considerations.

Those of us who are parents also know that a child's distress in the moment can be viscerally upsetting and extreme - but over in five minutes. Any parent who has done those difficult nursery drop offs or contact handovers knows that transition can be upsetting for little ones and it is so, so hard to leave them and to let them go because it feels so cruel. I don't underplay the very real distress and harm that removal itself can cause, but it is perhaps sensible not to over interpret tears and crying at the point of removal.

So, for all sorts of reasons, when we see these videos on the internet there is huge potential for misunderstanding, outrage and harm.

What has upset me most about this particular video being shared is not the mother's (unwise but understandable) decision to publish it - but the decision by a prominent public figure involved in the justice system to retweet it, apparently without any investigation of the background facts or the status of any proceedings (and thus the applicable law) on the basis it 'looks like an example' of how courts 'collude' with abusers. This person's click has validated the mother's tweet and emboldened far more people to distribute it more widely. If this mother, who has enough pressure upon her already, has inadvertently (or even knowingly) broken privacy rules and laws, this public figure has made the consequences of her error that much worse. Because the breach of privacy involved is now far more extensive - and it is far more likely that the named local authority will become aware of this emerging campaign and take action to prevent wider dissemination and protect the child and carer from unwanted attention from the public or media. I can tell you for sure that no lawyer representing a parent seeking more or unsupervised contact with their removed child wants this as a backdrop to their application.

It's also worth saying that the unnamed 'abuser' in the background here might be a very nasty piece of work who represents an ongoing risk to the child (which for some reason the family court hasn't appreciated), OR they might themselves be a victim of inaccurate or false reports of their behaviour and personality. That person might now be very worried about how to protect themselves and the child in their care.

Whether this public figure was motivated by a wish to help this particular mother or by a wish to use her case as a springboard for reform around the wider issue of how the Family Court deals with domestic abuse (both legitimate aims), she would have been far better able to advance those causes had she first checked out the case and the restrictions that might apply to it in private - and thought a little bit about whether it was helpful to circulate a video of an identifiable child, who is on any basis caught up in some sort of conflict and potentially a victim of either domestic or emotional abuse. For any person whose role centres around victims (as this person's does), it seems a good idea to think about who the victims really are before hitting that button.

Whilst I don't know enough about the case to know which particular provisions apply to the publication of information about this child, it is worth saying that retweets of the original video or accompanying messages are potentially a contempt of court or a criminal offence. Something that most people seem oblivious to or don't care much about. Whoever the real victims are here (and the child is obviously one of them), promoting trial by social media is not a reliable way of protecting them.

For obvious reasons I'm not naming or linking to anyone involved in this. The prominent person who retweeted the video has not responded to queries as to their prior research, and at the time of writing the video and the retweet remain. The mother has blocked me, but I hope very much she gets some legal advice. If something has gone wrong here (and even if it hasn't) she needs some advice to help her think through her realistic options.

 

LEGAL FOOTNOTE :

I'm not able to accept any comments that attempt to argue or advance the specific facts of this case or identify those involved.