Glacier Mints

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to make a decent fist of and which led to a great chunk of the hopeless Children Schools and Families Act 2010 being repealed this April.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.

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10 thoughts on “Glacier Mints

  1. Hi Lucy,

    I hope you are well.

    Myself, Mr and Mrs Haines and all our children attended this conference. I did enquire about the panel and was told by the numerous I spoke to that they were hand-picked by cafcass which could lead to NYAS saying what they want as they do not agree nor like the transparency, claiming it can be abusive to children.

    At one workshop I asked why child advocates could not be used pre-proceedings, especially where children already have a dim view of social workers and some social workers are dishonest- as I have personally witnessed in a case where [name edited - you can name her I'd rather not] (yes I can name her) was one such one. They were horrified at the mere thought a sw could be inaccurate or dishonest- I would offer to provide the evidence if they wanted it…

    There were queues for lunch so my daughter headed and had a desert plate filled first where there was no queue- (which they ran out of) and then went back to get the main. A sw was horrified assuming no ‘healthy food’ was being consumed. I stated is it my daughter’s wishes and feelings or my poor parenting? and later when I saw the same sw see they had run out of desert I commented…. Or a clever child? Many make too many assumptions, even out of their workplace. I rest my case.

    Hope you’re enjoying the loom bands ;-)

    Warmest Regards,

    Amber

  2. Robert Whiston.

    Visit any magistrates’ court or county court and the public galleries are empty.
    Not even the ‘more’ attractive DV courts with a hint of sensation have any on-lookers. So why the fear of transparency ?
    Another case of Legal NIMBY-ism ?
    Don’t do as I do, but do as I say – yet again from the judiciary ?

  3. I think I would be a bit more outspoken about this study, Lucy, and suggest that it is dishonest, unscientific and unrepresentative. The sample size of 11 is worthless, and not all these young people had had experience of the courts. The study doesn’t even tell us how many that was (‘almost all’). The questions were, as you observe, leading and it was very clear that NYAS got the result they wanted.

    This is one of the problems the public has with the system: so many of the people and organisations involved in it are so unashamedly dishonest. The same thing happened with the consultation back in 2007.

    78% of the children who responded approved allowing the press to attend if the parties agreed, and 53% had agreed that the public should be allowed into the courts if they could show they had an interest. Lord Falconer, the Lord Chancellor, said, “Overwhelmingly they rejected the idea – with the clear support of key third-party organisations speaking up for the interests of children. They are clear – crystal clear – that they do not want the family court filled with people who have no involvement in proceedings”. That clearly was not true – in fact it was nothing less than a bare-faced lie.

    As one might have expected, the media were 100% in favour of allowing the media to attend proceedings as of right,and the public 72% in favour; the legal profession and judiciary were respectively 78% and 73% opposed. On the issue of allowing others to attend, the media and public were 100% and 92% in favour and the judiciary 61% opposed. Sir Mark Potter said, ““The broad view of the judiciary was that the media should be admitted to family proceedings”, again, a lie.

    Whatever one’s views on transparency, we should be clear that the reason for secrecy or privacy or whatever one wants to call it is not to protect children from potentially embarrassing revelations about their private lives but (according the the ECHR) “to avoid prejudicing the interests of justice”; the belief is that open courts would be intimidating to witnesses. The Court of Appeal put it down to habit, “In the end the more convincing defence of the practice in our jurisdiction may be the most simple, namely that it is reflective of a long standing tradition, of general but not universal application”.

    Munby is not the first president to argue for greater openness; Butler-Sloss said, “I would recommend that there should be a presumption of access by the Press unless specifically excluded by the judge or district judge” and Wall said, “I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child’s family or private life”.

    I, personally, am in favour of fully open courts because I do not believe that justice can be done otherwise, but I shall let Margaret Booth have the last word, “The fact that so much of what we do takes place behind closed doors may now be having a marked effect on the professional approach of solicitors, barristers and judges alike. I do not see that effect as being beneficial. Everything is in danger of becoming too cosy and too informal and we are forgetting that we are lawyers. We do not have the Press or the public or even members or our own profession there to keep us up to the mark”.

  4. P.S. Can someone explain how, with a sample size of 11, there can be equal numbers of males and females, as NYAS claim?

  5. I don’t want to hog this thread, but just a couple more thoughts:

    The government and judiciary have always presented the question of openness as one of media access, which makes it easy to present to the 11 NYAS children as something to be resisted. Campaigners would go further, and argue for public access and access for academics and even for Harriet Harman, who famously lamented that even she was banned. Openness is also about filling what the Family Justice Review identified at Annex E as serious data gaps.

    Misrepresenting the debate in this way closes down the discussion; the government knows perfectly well that media access isn’t the issue and very few journalists will attend; Ursula Cheer’s report in New Zealand showed no increase in media reporting of custody cases; over here, Sanchia Berg for Radio 4 said, “because I wasn‘t allowed access to the experts‘ reports – so far no-one has – I could not really assess the case for myself”.

    Regarding anonymity, take a case like Re H a couple of years ago – I won’t identify it further, but there are other cases one could take as examples and make the same points.

    It is an important case which raises issues about how cases are managed and it has been discussed extensively online by parenting groups and lawyers; suffice it to say it is well-known.

    Most, if not all, of the parenting groups and McKenzies who have discussed it know the identity of the parties, which arguably negates the anonymity. Furthermore, the case cannot be understood fully without knowing the parties and knowing more information than is in the published judgement. Indeed, the judgement in this case reveals just one side, and is very much a case where a judge has preferred one party’s evidence over another’s (and hasn’t necessarily got it right).

    Re H is also a case which has been discussed widely in the media, though not under that name. Anyone reading one of the media accounts and the Bailii judgement could easily put two and two together, however, which also seems to argue against anonymity.

    Obviously these type of cases are few and far between, but they represent the cases the public are likely to be interested in (other than celebrity ones, which judicial discretion can keep closed).

  6. The topic is an important one to have some research on, but I agree with Lucy that this research isn’t it. A sample size of eleven, with an agenda going into the study, and the sample members being specifically selected rather than randomly determined from the large numbers of children involved doesn’t make me feel terribly confident.

    I think that Nick has a very good point. It is something that I have noticed over the last few years – perhaps as a result of proceedings becoming detached from children and families and all about process and bureacracy and filling in forms, that an air of informality and cosiness has crept in.

    Transparency and accountability for what goes on in family courts is the best way to make sure that what is going on is right.

    Like Lucy, I struggle as to how to square my desire for greater transparency with my concerns about confidentiality for children, and I do think that this is something that Parliament ought to stop ducking and actually do properly, but I can’t blame the President for realising that they are never going to, and that in the absence of legislation it is going to be Judge made law that leads the way.

    As with so much of family law, the research we end up with tends to be (due to funding issues) with a particular outcome in mind, it’s a shame.

  7. Familoo,

    excellent post imho.

    Nick L,

    spot on.

  8. A mother has her child removed at birth for “risk of emotional abuse”.If using her own name,she protests at a public meeting ,or via the media she faces jail ! Can that be right? No it cannot !!

  9. In a scenario where social workers in some local authorities are now evidenced as routinely fabricating evidence to support their adoption targets, where solicitors are turning a blind eye to abuses of the legal process to smooth the waters of lucrative local authority contracts, and where one judge has been allowed to stay on as a family court judge despite having been evidenced as being a director of an organisation commercially benefitting from his own care orders, discussion on media access to court papers is, at best, an interesting sideshow.

  10. So in a survey effectively about “what to should be done if I or any of the parties think my social worker is mad, bad or incompetent”, you require the ethical researcher to obtain the informed consent of, you’ve guessed it, the child’s social worker (for children under the age of 16).

    And if they are over the age of 16, or sufficiently competent or capable, the child participants are labelled as bolshy, by an esteemed barrister with more than 12 years call in child care matters.

    There is considerable research that a worryingly high proportion of adult patients do not understand consultations with their doctors such that it is thought that in the public law system, things would not be substantively different.

    As the report noted, with their post 16 cohort, children are not even aware of major decisions such as “that they are in care”, such that they would be the last to know about major foul ups on the part of the social worker or guardian – or if they did they would be deemed, like Lucy, to having an agenda.

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