In The Transparency Review the President says he is going to amend PD12G so that ‘Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR r12.75 (1), PD12G and PD14E.’
That’s good news, but in truth there is a lot more wrong with PD12G than suggested by this simple ‘fix’. Actually, let me frame that more positively – PD12G could be made much better than it is.
It’s got a long history.
Once upon a time the tables in PD12G were a part of the main rules. Eventually it’s tabulated list of people and purposes became too cumbersome to manage and it was hived off into a PD, and every so often it’s terms are expanded to capture something that it has become obvious should be permissible, but actually isn’t. Usually something that has been happening for years inadvertently or blatantly with various people turning a blind eye.
Going even further back, the precursor to rule 12.73 (from which rule 12.75 and PD12G hang) was old rule 10.20A of the Family Proceedings Rules. It was implemented as a result of the decision of Sir James Munby (as he then was) in Kent CC v B (RE B (A CHILD) (DISCLOSURE)  EWHC 411 (Fam)  2 FLR 142) to render lawful that which Munby had said was a regular but inadvertent contempt precluded by s12 Administration of Justice Act 1960: disclosure between professionals in furtherance of child protection. That same decision also prompted amendment of s97(2) Children Act 1989 in apr 2004 so that the term ‘publication’ in the context of the identification of children as subjects of proceedings was relaxed slightly so as to bite only on publication ‘to the public or a section of the public at large’. Here the amendment was aimed at rendering lawful another inadvertent consequence of statute – parents being able to share the fact of proceedings with school teachers and the like.
So, in 2004 professionals and parents had been happily sharing information in ways that it turned out were technically unlawful. Rules were made to enable them to carry out these obviously unobjectionable acts lawfully. So it has been at various points since – PD12G now encompasses the right to pass information to an MP, to a legal regulator, to the Childrens’ Commissioner and various other individuals and organisations, for specified purposes.
The problem is there are still a whole host of things that ought to be included in PD12G in order to render them lawful that aren’t, and a whole load of things that people assume are permitted through PD12G but aren’t. Here are a few examples of what FPR 12.73 / 12.75 and PD12G don’t (or don’t obviously / clearly) permit :
- there is no provision for parties to proceedings (or their lawyers) to tell reporters any detail of a case in order to help them understand what the case is about (as noted above), though in truth they very often do,
- there is no provision for an expert to share their reports for the purposes of peer review, supervision, to professional regulators or insurers or to deal with complaints – even anonymously (lawyers can share with their regulators and insurers, experts can’t, and parties can share information in order to make a complaint against an expert – but if they share incomplete information an expert can’t share the balance. It is pretty clear, based on my experience that experts DO share their reports for such purposes, and I can’t really see it ought to be objectionable),
- there is no provision for disclosure of the detail of court proceedings for the purposes of anonymous surveys, or interviews in qualitative research studies except where the study is an ‘approved research project’ as defined in the PD, which is often NOT the case (I know this, I’ve checked a number of them),
- there is no provision for survivors of abuse (or false allegations) to share the contents of a fact finding judgment with a support group or organisation.
On this last point, in fact PD12J in fact requires findings to be set out in the court’s order. Since s12(2) dis-applies the contempt provisions of s12 from the order itself, this would mean that if PD12J were adhered to the order could be shared by victims in order to secure non-legal support. However, this part of PD12J is actually honoured more in the breach in my experience, and particularly post Re H-N where schedules are now out of favour, the order would really need to incorporate the narrative of a judgment for depth of understanding in order to be of much use. So, arguably, PD12J ought to be amended to provide for inclusion of the judgment rather than just any schedule or summary of findings. However, it would probably be more simple to amend PD12G than to leave the ability to share a judgment contingent on whether or not that judgment is actually incorporated into the order by an overworked lawyer.
Needless to say, there are similar issues with the sister PDs on Communication of Information in relation to other sorts of information – PD12E, PD9B etc, which are considerably more restrictive than the unwieldy PD12G (but which also relate to other sorts of proceedings where s12 Administration of Justice Act 1960 generally does not bite or where there are particular reasons to heavily restrict release of information).
There are probably other sorts of disclosure that aren’t permitted by the PDs, but which could or should be permitted – above and beyond those I’ve set out. It would be great to see a more thorough review of the PD whilst it’s being tinkered with for the purposes of the Transparency Review (I mean, it’s not like The President or the Rules Committee have anything else to do – ha ha).
So, while you’re at it boss…would you mind taking a look?