Tag Archives: miscarriage of justice

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.

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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.

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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:

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So, here are Ten Things You Should Know:

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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.

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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.

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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).

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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].

President’s Article

The Times is running a campaign for greater openness in the family justice system, which in many respects I support. The series of articles by Camilla Cavendish running this past week certainly make interesting reading.

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In response comes Sir Mark Potter’s recent article in The Times  – it makes a lot of sense to me – but BOY has it generated a lot of comments! Many of these appear to be from unhappy litigants (mostly parents I would guess) who have had adverse experiences in the family courts, and sadly many of them also appear to be very muddled about how judges and lawyers get paid – there are several commenters who appear to be under the misapprehension that somehow judges or lawyers benefit financially depending on the outcome of cases, in particular that lawyers and judges get paid more when children are removed. That betrays the depths of cynicism which exists about the legal system in this area. Trust is really at a low point. 

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The tendencies in this area are: firstly to accept all accounts of adverse experience or miscarriage of justice in the family justice system as reliable and accurate in spite of the fact that they are by their nature going to be partial and highly likely to lack expertise or objectivity; and secondly to attribute all so-called miscarriages of justice to corruption, conspiracy or malice.

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It ought of course to be obvious that so far as the privacy of family proceedings goes it cuts both ways – jsut as miscarriages of justice are not automatically exposed to the oxygen of publicity, inaccurate accounts about the apparent failings of the system or the individuals who are work in it cannot be corrected. If one could jettison the welfare of the child and publish everything and be damned, then no doubt the public would see mistakes and miscarriages of justice come to light, but also many of the inaccurate accounts of what has transpired in particular cases would cease to be reported by journalists as if they were verifiable fact or a complete account of a case.

 

The Times it seems to me is guilty of falling into this trap – whilst on the one hand saying that miscarriages of justice cannot be properly exposed because of the secrecy of the family justice system, the basic premise of the campaign is that there are miscarriages which need to be exposed – an assertion which is presently difficult to challenge or assess. Of course in the best run system miscarriages will occur and undoubtedly they occur in our family courts, but the insinuation is that things are systematically very wrong – and this is bound to do terrible and long lasting damage to public confidence in the judicial system. The starting point seems to be that the family justice system is guilty until proven innocent – I’m not sure that’s journalistically terribly rigorous.

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Whilst the only way to diffuse this cynicism and the constant accusations of conspiracy or corruption is to increase openness, I am in agreement with the President – the privacy of children must still also be preserved. The publication of anonymised judgments seems to me to strike the right balance between the competing interests – the suggestions by some that the evidence upon which the decisions were made should also be made publicly available are practically unworkable and would do nothing to advance the principle of open justice nor to enhance the welfare of the children involved.

quote of the day

Just reading about the recent ruling that the use of anonymous witnesses is incompatible with a fair trial, and specifically to the right of the accused to see and challenge his accusers. Can someone who does criminal law tell me why it took the House of Lords to set that straight? Well, DUR! (as they say)  

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But the scariest part was this quote from Bob Quick, head of Scotland Yard’s Counter Terrorism Command, who said the ruling was “catastrophic”: “There is too much principle and not enough pragmatism in the criminal justice system,” he said.  

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Yikes – when up on a murder charge I jolly well hope to be tried according to principle not pragmatism, but at least its not someone in a position of leadership or authority in the police speaking with such disregard for the importance of a robustly fair trial system …

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NB: I have no plans to be up on a murder charge in the near future.

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Read the quote in its original context here.