Writing About Family Proceedings – A Blogger’s Guide

Thinking about telling the world about the injustice you have suffered at the hands of the family court system? Understandably many parents who have been through family court proceedings want to blog or write about their experience of trying to get contact with their son or daughter, or about how the state wrongly took their children from them. Many want to get advice from other parents who have been through similar experiences through online support forums or web communities.

.

Before you go describing the details of your case online make sure that what you are about to post is within the law. There may be lots in the press about the opening up of the family justice system, but it is actually very easy to fall foul of the law about publishing information about court cases concerning children - the law applies not just to reporters but also to you as a parent. If you do publish information about the case, whether in blog form or otherwise, you won't be the first person to do so. But be warned, like those who have gone before you, even if you are careful not to name names you are likely to be committing a contempt of court and possibly a criminal offence.

.

I have come across detailed journals about the journey of children and their parents through the court system, and I often get comments that I moderate off my blog because if published they would offend against the law. It's a worry that people think they can publish what they like as long as it's anonymous, and this post is intented to raise a few flags to those people, so they can be better informed about what the law says about their actions**. Hence the blogger's guide to writing about family proceedings:

.

So, here are Ten Things You Should Know:

.

1 Apart from allowing the media access to court hearings on 27 April 2009, pretty much nothing else has changed. Reporting restrictions where children are concerned still apply.

.

2 Reporting restrictions apply to individuals, including parents, as well as just reporters and thet are more complex than just saying 'the child, who can't be named for legal reasons' etc.

.

3 It is a criminal offence to publish information intended to or likely to identify a child as involved in Children Act proceedings (s97(2) Children Act 1989).

.

4 It is a contempt of court to publish information relating to proceedings wholly or mainly concerning the upbringing of any child (s12 Administration of Justice Act 1960). You can be punished for contempt of court by imprisonment. Any communication of information to someone else, whether orally or in writing is a 'publication'. 'Information relating to proceedings' means details of what has gone on in court, including what the judge, witnesses or experts have said or written in court documents. It is ok to give the gist of the issue in the case e.g. that the case concerned decisions about where the child should live or how often they should see their parents. It is not ok to give details of allegations made by the parties, for example about violence or the standard of parenting given by one parent.

.

5 It is ok to publish information identifying a child as having previously been involved in Children Act proceedings once the case has finished (Clayton v Clayton 2006) e.g. My daughter Sarah Smith was the subject of an application by me for residence (Be warned though, Jack Straw has said he will abolish this exception although it seems unlikely that he will find time to amend the law any time soon).

.

6 However, it is still a contempt of court to publish information about what has gone on in the court case even after the court case is finished - s12 Administration of Justice Act 1960 applies indefinitely.

.

7 The court has a wide power to make specific orders to relax or restrict the application of the law set out above. If you want to publish something that the law prevents you from publishing you will need to apply to the judge dealing with the case. If you are publishing material that comes to the attention of others involved in the case you may find yourself on the wrong end of an application for an injunction, and possibly with costs implications.

.

8 If the press approach you to speak to them, do not rely on the media to know what is and is not lawful. Even respectable national papers regularly publish material that is in breach of the law.

.

9 You are not entitled to disclose court documents to the press or to publish them online. You can disclose them to somebody confidentially if you need to do that in order to obtain advice support or assistance in the conduct of your case, but you must make sure that anyone you disclose documents to in this way knows that the material is confidential and must not be passed any further. You should look at rule 11.1 - 11.9 FPR 1991 to see what can be disclosed and when. Giving details of your case to other parents for help on an online support forum is probably not within the rules even if the forum is members only, but on the other hand the Court of Appeal have taken a relatively sympathetic approach to this type of activity in the past, when it was clear that a useful purpose was being served by the forum (see Re G [2003] EWCA Civ 489). Using a forum to run down the other parent is likely to meet with a less sympathetic approach.

.

10 Consider what impact any publication will have on the child, and consider what impact it may have on the court's view of you if it is drawn to their attention. It may prove very unhelpful if the Judge thinks you are on a crusade for justice that has distracted you from the practical needs of your child. Consider also how publishing material will HELP you secure justice or what unwanted attention it might attract.

.

So those are my ten points - it is often superficially attractive to get all your disgruntlements off your chest, and to gripe about how unfair the system is. And it is all too easy to forget who may be reading what you have posted in a careless moment. At least if you do decide to publish and be damned you can do it from a position of first having a rough understanding what the law says about it.

.

Postscript: Number 11 on the list is that points 1 - 10 are a very very broad brush and quite superficial summary of what is actually quite  a subtle area of law. This is the Nutshells version only.

** NB: This post is a summary of the law concerning disclosure and publication of information in relation to family proceedings concerning children. As with everything on this blog it should not be treated as legal advice and I would suggest that anyone in doubt should 1) seek legal advice about the specifics of your case and 2) hold off on publication until that doubt is resolved.

POST SCRIPT NO 2: Don't forget the law is due to change, on a date to be announced...See here.

POST SCRIPT NO 3: Update here [July 2014].

Access All Areas?

A piece appeared in the Times last week accusing Family Courts of hiding information from parents, in particular relating to social services file. I must admit to being rather puzzled by this slightly muddled article. In the first instance within care proceedings the Local Authority is under a duty to provide a wealth of information at the outset of a case and on an ongoing basis. If that duty is not complied with the court will order compliance. Secondly, family courts are able (and willing) to order specific disclosure against Local Authorities and other organisations like the Police where the standard information is inadequate. Thirdly, there is a quite separate legal duty upon Social Services to disclose information to a data subject (or to the parent of a data subject child until they are Gillick competent or thereafter with their Gillick consent) pursuant to a Subject Access Request under the DPA. That information must be provided upon request and within 40 days of payment of a fee of no more than £10.

.

There are as one might imagine a number of exceptions to the DPA duty of disclosure which account for the frequent black marker pen on disclosed documents. In my experienced of both family and other types of cases (for example employment disputes) this is often indiscriminately applied to the point where the unredacted text is rendered unfathomable, with the problem worsening exponentially as the volume of paperwork to be redacted increases. But it is a corollary of the rights of the data subject seeking her information that the rights of other data subjects should not be trampled upon. A useful guide from the ICO's office to the correct approach in DPA Subject Access Requests to social services can be found here.

.

The DPA duties which apply to data controllers like social services (or GPs or health visitors) are not the source of the courts' power to order disclosure, which is a discretion rather than a duty and which is exercised according to the demands of the litigation and the need to ensure fairness as between parties rather than the rights of any data subject.

.

I've no doubt that there are cases where DP Subject Access Requests are ignored or dealt with slowly or where the redaction is done in a cack handed way, but the route for redress in respect of that is complaint to the ICO. This is little help when a court date is approaching. If a party requires information for the purposes of court proceedings an application should be made at an early stage within those proceedings rather than relying on compliance with the DPA - a properly made court order for disclosure of information overrides any duty of confidentiality or other objection on data protection grounds that an organisation may have, and may encompass all relevant information rather than only information relating to the individual data subject (so for example files relating to BOTH parents or documents containing joint information, where the two subjects are separated). Although in civil cases a DPA request may be useful to obtain pre-proceedings information (for example to help assess the merits of a prospective claim for discrimination against a former employer), this is generally not relevant to family proceedings.

.

Although in family cases a two pronged approach may sometimes be helpful, it is usuall better to apply in the first instance for an order of the court which is more easily enforceable than a subject access request, and which can be dealt with in tandem with the ongoing court process. Judges may be reluctant to order blanket disclosure of things like social services case logs unless there is a any reason for thinking they may be necessary (knowing  as they do how lengthy they can be), but will do so where appropriate (for example where there is a factual dispute about something the social worker purports to have recorded contemporaneously).

.

Those seeking disclosure - particularly via the DPA route - should be prepared to be drowned in reams of paperwork which may prove to be a distraction from the real issues in a case.  The danger of a DPA request is that it may be quite indiscriminate (and it is not unknown, in the context of more adversarial proceedings at least, for a DPA subject access request to be deliberately complied with to the letter in the hope of overwhelming the other side or that they will miss the crucial information). The task may be like finding a silver bullet in a haystack. Be warned - you may get what you ask for.