Yes. Just like a glacier mint : transparency has gotten sticky. [edit : forgot the link to the thing I was writing about: Safeguarding, Privacy and Respect for Children and Young People and the Next Steps in Media Access to Family Courts which can be found here]
Whilst I have often expounded the pressing need for greater transparency I've always favoured the frosted glass of privacy - we need light in our bathrooms, but frankly what goes on in there is private and not to be seen in all its gory details. Totally public family proceedings would be like being paraded in nothing but your grubby grey kecks with last night's makeup still in panda circles round your eyes and all your flabby bits hanging out (yes, this is my room 101). Children and parents deserve and need privacy in most cases, which usually boils down to anonymity but often includes something a bit more sophisticated to avoid the risk of jigsaw identification.
In some cases of course families (usually the adults) actually want to be identified - want to tell their story. But I've rarely encountered a case where a child or young person wants their f*cked up family stuff to be in the papers or online for all their mates to see. I've seen a fair few where the idea that this might happen (real or perceived) is a real and pressing anxiety on the part of children though.
So, whilst I am a supporter of the AIMS of the President's transparency reforms, the project that he is embarking on with such alacrity is a project which hitherto the judiciary (including one Munby J) had made plain were matters for Parliamentary reform. Matters which, in 2009-2010 Parliament thought were matters for Parliamentary scrutiny and reform. Matters which were too complex and difficult for Parliament to make a decent fist of and which led to a great chunk of the hopeless Children Schools and Families Act 2010 being repealed this April. I understand the NEED, but the process makes me a bit twitchy. Does the end justify the means?
I recall the debate in the run up to the CSFA 2010. There was far less appreciation amongst the legal profession of the need for transparency and it seemed far from inevitable that anything much would happen (compare that to now when many people consider the argument for transparency to be over, the battle lost or won depending on your position). But in 2010 lots of lawyers poo poohed it. And the arguments about children's right to privacy and their views on the topic held far more force then than of late. I and colleagues have wondered how the guidance on publication of judgments will work in practice in cases where there is a risk of jigsaw ID and how and when a child's views can and should be obtained before a decision under that guidance is made. Some parents of young children would agree with the idea that a newborn baby could not be identifiable from a video or photo (Re J). I can certainly recall attending a quiz several years ago where participants had to guess the High Court Judge from the baby photo (I know - don't ask!). Apart from those of us with no High Court practice to speak of the hit rate was pretty high.
But now NYAS And ALC have commissioned and published a new study [link added]. I think it rightly brings back to the table the arguments about children's rights to privacy, the arguments about the impact upon children of greater transparency - not just of the fact of being identified, but the fear of being identified, the corrosion of trust in professionals that flows from knowing that whatever you say *might* get out there. And it pulls no punches when it says to the President head on "Look chum. These things are for Parliament. For proper public consultation. Do it properly!"
I agree. Parliament should be given an opportunity to scrutinise these things. But of course it won't. It got into a right old pickle last time it tried. And no Government wants to go there. And Munby P knows as much. So understandably he just wants to crack on. It's completely circular but in the end you have to fall back on due process and separation of powers. Munby P is doing his best within the constraints of proper judicial discretion and guidance, in order to prevent the justice system falling into further disrepute - but there is a legitimate argument for saying he can't really go much further without the help of Parliament.
So they make a good point. But, what I set out to write about is the actual substantive evidence in this study. Because it's easy to be distracted by the hard hitting message for the President which heralds this study, and to forget the study itself (as I have just done for the last blah paragraphs!).
And in fact when I read the study I was rather underwhelmed. Which is not to say that I don't value the information that it provides us with - some of the remarks made by the young people who are interviewed for the study are telling and important reminders of the lived experience of care proceedings and the added difficulty publicity may have upon them. But in terms of a solid evidence base upon which to move forward I thought it was pretty slim. To start with it involved only 11 children. The children were not interviewed separately but concurrently in the course of a day (meaning that they are likely to have influenced one another). Many of the questions they were asked were classically leading questions (it's pretty clear where the authors of the questions were coming from). The 11 participants were all older children or in some cases young adults, so although that was understandable not really representative. The participants were drawn "primarily from the NYAS young people’s consultation and participation group (a national group covering England and Wales) and from young people who had been provided with a service by NYAS". Based on my experience this probably doesn't make them terribly representative of the wider group of children involved in Family Court proceedings, not least because they will be at the higher end of the age bracket. They were self selecting and therefore likely to be children / young people with strongly held views / who were vocal. And of course they are drawn from an age bracket the members of which are naturally inclined to assert their independence and the rightness of their view in contrast to anyone in authority!
Having read this study I was rather left with a sense that the study had worked backwards from the desired conclusion (I'm not saying that is what happened and I'm not questioning anyone's ethics, but that was my genuine feeling as I left off the reading of it. It felt a bit uncomfortable and I couldn't shake it off). The questions were worded so as to have the likely effect of raising anxiety and inviting participants to express concern, rather than to explore safeguards, to reassure or to address misconceptions. One of the themes in the discussion is that no group of professionals felt it was their role to reassure children about the media - this was replicated in the study itself meaning that the participants expressed all their anxieties about what might happen in something of a vaccuum. So, for example, one of the early questions is about publishing photos of babies and children. This is exceptionally rare (re J being one such exception) and there are no specific proposals about this - I wonder what impact leading with this sort of topic will have had on the developing dynamic in the groups.
And similarly, a preamble to a set of questions reads as follows "At the moment in ongoing cases, reporters are allowed to attend family courts and listen to what is said in cases (unless the judge says they cannot). They are not permitted to publish information which is intended or likely to lead to the identification of any child in the case. This restriction ends once the case is completed - but the court can decide reporting restrictions should continue if that is thought necessary." which is accurate as far as it goes, but rather gives the impression that there is no restriction on reporting at the end of the case, which is not correct because the not insubstantial provisions of s12 AJA do still apply. This is repeated later on "The automatic restriction on media reporting of the detail of cases and the identities of those involved stop once the case is finished (although the judge can extend restrictions if he/she thinks that is necessary)."
Finally, this troubled me : "There is a proposal from the President of the Family Division that - unless otherwise stated by the court – the media should routinely be permitted to read certain (as yet unspecified) documents." Participants are then asked a series of questions to elicit what they think about this. Again, it's accurate as far as it goes - but it creates an impression that it is going to be a great big free for all on documents, which is no part of any suggestion I have heard. And the subsequent questions make a point of specifically referring to medical reports, which are highly unlikely in my view to be a category of document that is routinely read by journalists. Of course, this brings us back to the central criticism of the study conclusions - that we don't know what is proposed because we are relying on a thumbnail sketch in a President's View at present, rather than a clearly set out Green Paper or consultation document - but again I wonder if the framing of the discussion is going to be likely to prompt a particular response. I think if I have guessed the answers that these questions would have elicited they'd have been pretty much those given. What else would they say?
I'm not poo poohing this study or the views expressed within it - either those of the children and young people or the views of the authors. But I do think that it is information recruited for a cause that we know that the commissioners and at least some of the authors already espouse, rather than a piece of research that stands free of those strongly held views. And they are plainly strongly held views when you read the document itself. This report is a pretty direct challenge to the President, and plainly intended to be so.
I do think that one of the interesting things this study has focused my mind on is who should take instructions / inform / consult a child about possible publication of a judgment - or even about possible media attendance - and when and in what circumstances they should do so. Guardians certainly don't routinely bother asking even teenage children and often adopt a somewhat standardised basis. That probably ought to change. And courts will probably have to get used to allowing for adjournments for children to be consulted before decisions are made about publication of judgments - although the flip side of that is that children's representatives need to get better at spotting the obvious coming well before judgment so they don't get caught out on the day of hand down. I will certainly be giving such issues greater consideration in future.