Today, "blogosphere" entered the judicial lexicon and I appeared in my first reported judgment. Shame it wasn't for anything I've done in court but hey ho. I think it is the first time that a legal blogger has been quoted in a judgment, which is something to tell the grandchildren (yeah, whatevs gran).
Of course, trivia aside, behind this is a serious judgment about a serious and heartwrenching case, as the judgment in question is that of the President of the Family Division, Munby LJ, in connection with the Reporting Restrictions Orders in the case regarding the child of Allessandra Pacchieri.
You can read it here: P (A Child)  EWHC 4048 (Fam) (17 December 2013). (You can read my earlier posts on this topic here here and here).
The case is interesting for two main reasons:
- because it makes the timeline in the case a little clearer, and we can therefore extrapolate a little more about what is likely to happen in future.
- because it tells us the direction of travel for future cases of press and public interest
As Suesspicious Minds observes however, it is not the rollicking b*llocking of the press that some had anticipated it would be (although Munby sounds pretty thin lipped about the quality of their reporting when he prays in aid my little quote he is right to observe that it is no business of the courts to monitor the free press).
Munby asks at pa 44:
How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?
before going on to say we can't go on like this (finally) - we have GOT to publish more (I paraphrase). About time. Although, if this is a solution to a problem, I think the question of causation is rather more complex than the solution suggests. It is not as if one can say "but for" the absence of publicly available information inaccurate or tendentious reporting would not exist. If that were the case the many inaccurate articles published before the publication of Mostyn J's Court of Protection case would by now have been corrected. They have not been. If that were the case there would not have been widespread reports that Munby was calling in the case to "demand an explanation" from social workers, based on a media release that said no such thing (see the judgment for detail of this). No. Whilst it is not the role of the judiciary to curtail press freedom on the basis of the quality of reporting, nor to enter the arena and criticise them for the quality or tone of their reports - that does not mean there is not a legitimate public debate to be had about the role and conduct of the mainstream press. I am pleased information will be publicly available both to the press, to legal bloggers and to the public - but I don't think that excuses reporting that is knowingly based on incomplete information, that is expressed in trenchant and inaccurate terms and misleads the public about matters of genuine public interest - either before or after any transparency reforms. The press could have sought further information. They could have waited. They could have employed appropriate caveats. I have doubts that the publication of judgments will entirely resolve the problem - because for me it is caused not just by lack of information but by a lack of incentive to report all the facts and to do so in a measured way. It is a feature of the press that there should be a story, a sellable, gaspworthy story. Judgments are plodding, laborious and intricate. Cases rarely involve clear cut villains and heroes (except in our submissions).
It also concerns me greatly to have been made aware (from two different sources) of information suggesting that an individual (who I will not name but who ought to know better) published information on the internet in this jurisdiction on Friday evening (at a point where the interim RRO had been renewed, but prior to the publication of the judgment and order confirming that renewal) which named all three of Ms Pacchieri's children. That was clearly a breach of the RRO, although I do not know if it was with knowledge of the continuing existence of a RRO, that person must have known it was likely such an order would be renewed. It is plain from Munby's judgment that there can have been no legitimate public interest or necessity to publish those names and nor can there have been any justification. And yet it was done (although it has now been removed). (Please do not speculate in comments about this, I will not publish any comments about the identity of the person in question).
So to sum up. Yay for more published judgments. But lets see how it goes eh?
This judgment will of course be wielded by those who wish to suggest that it is precisely this sort of high profile reporting that is necessary in order to get information in the public domain, to drive the reforms that Munby has now acknowledged are so pressing - it will be said the judgment vindicates the conduct of the media. But frankly, they were pushing at an open door and would have been pushing at an open door in relation to publication of information in this particular case had only they asked at the outset. As Munby said in his judgment "it is hard to imagine a case which more obviously and compellingly requires that public debate be free and unrestricted.". Indeed. And it is no more obvious and compelling for all the lurid headlines. It was always obvious and compelling. They should have asked.
On the future, Munby's actual words at pa 45 were these:
"This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges."
I agree. But I also worry about these things:
- what about district judges who are now routinely dealing with care cases?
- what about Magistrates who have always routinely dealt with care cases?
- what about the resource implications? the process of preparing a judgment for publication is laborious and time consuming for both judge and court staff. The process variously involves the location of court recordings, obtaining of transcript, amendment and approval of transcript, anonymisation of it etc, or the preparation of an appropriately anonymised reserved judgment on a computer in the first instance. Even the preparation of Magistrates' facts and reasons takes a considerable length of time - in some local courts Magistrates are listing an additional half day for each full day of evidence to consider and prepare their facts and reasons.
These are not reasons not to do this but they are really quite large practical and financial problems to which I don't know the answer.
And whilst we are in the business of saying we cannot go on as hitherto - judgments relating to reporting restrictions orders in cases of public interest should be published promptly and to the public at large. The article 10 points about freedom of speech in cases of public interest apply as much to legal blogging as to more traditional forms of writing, and form a part of the modern ecosystem of legitimate public debate. In the interest of informed and balanced debate, those without press cards or access to Copy Direct must be in a position to know what they can and cannot report in order that they do not either inadvertently breach some unseen order or (more likely) so that they might feel able to report on matters which are likely to be subject to some specific but limited restrictions.
I hope in due course there will be a Practice Direction regarding the routine publication of Reporting Restrictions Orders and associated judgments in one central location, and setting out the appropriate mechanism for journalists, legal bloggers and other interested persons to find out what restrictions are in place in any given case.
Finally, to return to the specifics of this case : we now know that Mother spent some time after the making of care and placement orders pursuing proceedings in Italy, although it remains unclear what those proceedings were based on. She made no appeal against the orders in this jurisdiction. It is also now known that the child has been placed for adoption AND that there is presently no outstanding application concerning this child before the court. The significance of this is as follows. Since the child has been placed for adoption - but not yet adopted - Ms Pacchieri cannot apply to revoke the placement order. It is too late. Since the application for adoption has yet to be made by the adopters she cannot presently make any other application. Only when that adoption application is made will she be able to apply for permission to oppose the making of the adoption order. The longer that the child is placed prior to the application being made the harder in general terms it is likely to be for Ms Pacchieri to succeed in obtaining leave to oppose (because of course the child will be more firmly settled in her proposed adoptive placement). The Italian Government has indicated to the court a wish to intervene, but there is presently nothing to intervene into. So I think that we can expect things to go quiet on this for a while in terms at least of the english adoption proceedings. Issues relating to the alleged failure to comply with international obligations relating to consular assistance may continue to rumble but those seem unlikely to impact on the substantive orders for placement.