Joanna Nicolas wrote recently that Details of care cases are concealed for good reason. The press must respect that (The Guardian, 1 Nov 2017). In her article she said that

I believe few journalists write about children’s social care with integrity; few are interested in the truth or facts. It seems the majority are only interested in shocking stories about inept social workers, and when they do check the facts, the local authority will not speak to them. In my experience, some journalists then report inaccurately and irresponsibly. One journalist once said to me: “We’re going to write the story anyway and if they won’t talk to us we will make it up.” Local authorities then become even more wary of speaking to the press, and so the cycle continues.

It is only then, having slammed journalists pretty hard, that she acknowledges that this is not the full picture :

It is important, of course, to differentiate between a journalist who just wants a shocking headline and one who wants to expose poor practice and improve children’s lives.

This seems an odd way to begin a piece which later suggests that

We … need to find a way to break the cycle of mistrust between local authorities and the press.

Nicolas touches upon an important point that is often forgotten : that there are legal obligations on local authorities that prevent them in some instances from fully answering enquiries from journalists, or from disclosing information that might assist the public to better understand a story. The data protection act prohibits the disclosure of personal information without consent, and other legal duties of confidentiality and privacy exist. It is not impossible for a local authority to respond to a press enquiry concerning a child in its care or a family court case, but it is tricky, and one hand is tied behind the back of even the most willing local authority.

Nicolas suggests that the priority in decision making here is “not the local authority, the court or the press – it is the child and their family”, and that as such confidentiality must be maintained. Well, yes. But it really isn’t so simple.

When Nicolas points to the fact that “Ofsted inspects and regulates children’s social care and there are mechanisms for parents to complain about how they have been treated by the local authority” she misses the point of investigative journalism. It is not to be “judge and jury”, but to allow the public to see what is being done in their name, both when it goes as it ought and when it goes wrong.

These are not questions of regulation, but of public accountability through the provision of information about individual cases. In one case Lucy Reed* was involved in a judge made serious findings against a social worker in early 2016. It is only now that the regulator is finally dealing with the underlying conduct in order to decide if the social worker should be permitted to continue in practice, and a decision in the case is unlikely to be made until 2018 (see our storify here). Citizens of the community in which a social worker practices may well feel that they should know about such matters, and the slow regulatory process would certainly not be an effective way of achieving that aim even though the disciplinary tribunal hearing in that particular case has been held (partly) in public (and I note it was possible to conduct this hearing without identifying the family involved). Indeed, were it not for the fact that a journalist attended and argued the right to live tweet the hearing the public would probably be none the wiser*.

Underlying all this is the sense that social workers feel threatened by the press. The article closes with a warning to journalists stay off the lawn :

But let’s allow the experts, those in possession of all the facts, to decide if there has been poor practice, not the press.

What a shame this is.

It’s worth thinking about what kicked off Nicolas’ ruminations on “Why local authorities are so unwilling to engage with the media : the Muslim fostering row”.

We have a vast amount of information in the public domain about this case now, and about the aspects of it which generated such concern (see our earlier blog posts about the case here). It would of course have been far more helpful if the local authority in the case, Tower Hamlets, had published clearer, fuller information at an earlier juncture. Whilst it is right to acknowledge that they will have been constrained to some considerable extent by confidentiality and data protection considerations, and around the reporting of the details of the actual court proceedings, it seems likely (knowing what we now do) that Tower Hamlets could have responded in a more informative and constructive way to the clamour for information. It is of course easier seen in hindsight but the case is a useful case study to help think about responses in future cases.

Nicolas implies that Tower Hamlets were helpless in the face of unfair journalism. But arguably neither data protection, duties of confidentiality nor family court restrictions, nor the need to protect the child’s (or foster carers’) identity would necessarily have stopped them from providing more information at a much earlier stage. There would have been no obvious prejudice to the child to have published the following information :

• That the child had a sequence of two muslim foster placements
• That the criticism related to the first placement only
• That there was some lack of clarity about the religious background and nationality of the child (without going into detail)
• Basic information about the languages spoken in that household
• That details of the other matters were unclear or that they were not accepted as accurate but were to be investigated
• The dates of the complaints by the mother
• That it would be inappropriate to say more due to the ongoing investigation, for confidentiality / legal reasons and to protect the child and her placement from press intrusion
• That if accurately reported the complaints made by the mother would be legitimate matters of concern and inconsistent with their own policies / good practice
• That enquiries were underway as to the source of the original information (it seems likely now that a contact worker is implicated)

However, there is a tricky question as to whether the Data Protection Act would or would not permit even those relatively benign but important pieces of information to be “processed” without consent. We hope to tackle those legal issues in a more detailed post or article in due course. We don’t think it is enough to use the DPA as a shield without really thinking about whether it in fact does silence a local authority from proper participation in public debate in order to prevent harmful speculation around a particular child or more generalized distrust in a local authority to the detriment of all families to which a local authority owes duties.

Although the mother does not accept the findings of the internal investigation it seems (if we can accept the conclusions of the investigation) to be reasonably clear that her complaints were largely baseless. But if received in good faith why should they not be reported? The way in which the story was run has been much criticized, and those criticisms do not need repeating in full here. But Brian Cathcart is right when he says, writing in Byline, that it is no excuse for The Times to say:

… that Tower Hamlets refused to answer the questions. Where answers are not easy to get, journalists are not entitled to act as though they don’t matter. Conscientious journalists try to find the answers in some other way.

And if the Times had felt compelled to publish without the answers, it should have included in its story, somewhere in the first three or four paragraphs, a clear caveat saying that its account risked being incomplete or inaccurate because the local authority was being unhelpful.

Even an indication that Tower Hamlets felt unable or was unwilling to respond would have been helpful, but just think – had Tower Hamlets provided the information above to the journalist on first approach, or even shortly after the story broke, how much less of a story would this have been for The Times? And how much less strain would have been put on the child’s family and placement as a result? How much reputational damage could have been avoided for Tower Hamlets and The Times alike?

Confidentiality, secrecy is important. But for the state to hide behind a child’s confidentiality is as cowardly and lazy as it is for journalists not to bother asking because they assume they will be met with a stony silence.

Failing entirely to appreciate the critical importance of confidentiality of journalistic sources (also specifically protected by law), and the basic purpose of investigative journalism, Nicolas proposes that journalists should pass their evidence of poor practice to local safeguarding children’s boards for (private) investigation. Regulators, safeguarding boards, courts all have important – but distinct – functions. The press are not trying to usurp them, but to scrutinise those institutions themselves, to allow the public to make up their own minds and hold them to account through democratic processes.

The press have a right to report pursuant to Article 10 ECHR. And they will continue to do so. Knowing this the state ought to take seriously its responsibility in facilitating the publication of balanced and accurate information and in informing the public whom it serves about the work that is quite properly carried out behind closed doors.

We will be discussing these issues of privacy and accountability at our debate on 5 December. Please come if you can – tickets have almost all gone, so book fast.

*Transparency disclosure : Lucy Reed is the Chair of The Transparency Project and author of this post. Louise Tickle is the journalist who attended the HCPC tribunal hearing. She is a member of The Transparency Project, but attended this hearing in her capacity as a freelance journalist. The Transparency Project subsequently created a Storify of her tweeted coverage of the hearing.

Pic courtesy of Jeremy Segrott on Flickr (Creative commons licence) – thanks!