The President of the Family Division, Sir Andrew MacFarlane issued some guidance last week on the anonymisation of published judgments in family court cases. You can read that guidance here.

The Daily Mail reported this as follows :

Curtain of secrecy should be wrapped around the workings of the family courts which decide if children should be taken into care or adopted, top judge urges

• The country’s most senior family judge says there should be more anonymity
• He said social workers, doctors and other expert witnesses should be protected
• Sir Andrew McFarlane said information should be withheld to guard children

Is it right to suggest that the guidance amounts to a ‘curtain of secrecy’?

Is it accurate for The Daily Mail to go to say :

The identities of social workers, doctors, and expert witnesses should be removed from officially published judgements, the country’s most senior family judge said.

The names of councils that seize children from their parents should also be kept from the public, Sir Andrew McFarlane said in instructions passed down to the courts.

Even the name and location of the town where the court made its decision may be suppressed.

[and that] …key information about child cases should be secret to protect children?

Ex- MP John Hemming is reported to say this of the new guidance :

These rules do not protect children, they protect the people who run the court system. By allowing bad practice to go on in secret you are really putting children at greater risk.

Further, is it accurate of The Times to report the new guidance as ‘giving’ social workers a ‘right of reply’ in this article (paywall)?

What does the new guidance actually say?

The guidance comprises two checklists :

(a) personal and geographical indicators in judgments, and

(b) the treatment of sexually explicit descriptions of the sexual abuse of children.

We don’t think the second checklist is controversial. Doubts about judges publishing graphic detail of sexual abuse and the findings of intimate medical examinations in published judgments has been discussed on a number of occasions amongst members of The Transparency Project – although we have noted that since the draft version of this guidance was first published in 2016  (see below) that practice has reduced, and many judges now indicate that the detail is in a separate and unpublished annex.

The controversy arises from the first checklist. Its focus is on preventing the inadvertent jigsaw identification of children and families. Some guidance on this is undoubtedly helpful since there are judgments published which we think do run the risk of local identification – rather it is the approach suggested in the checklist that has led to the Daily Mail headlines and John Hemming’s complaint that the new guidance is in fact putting children at greater risk.

First of all, it is important to remember that this is not a new rule or law, it is just guidance, nor is it new. It does not change the law, and it will be up to the judge in each individual case to decide what is right. Guidance issued by is persuasive – and a judge may want to explain why they are departing from the guidance, if they do. However, most judges do not even follow the 2014 transparency guidance issued by Sir Andrew McFarlane’s predecessor, and don’t say why. It’s also worth remembering that this new guidance doesn’t revoke the 2014 guidance, rather it builds upon it.

The judge will still have to weigh up the public interest in the publishing the names of those who are responsible for the removal of children, or who are responsible for failures, against the risk in a particular case of the naming of a professional or local authority leading to the identification of the child.

However this guidance does not spell that out (the 2014 guidance did). The 2014 guidance was based on caselaw and expressly said it was not changing the law. It said that

public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named;

…anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so.

Whilst that might have been thought to support the naming of individual social workers, in a number of subsequent cases individual judges (including Sir James Munby) have expicitly declined to name individual frontline social workers where the failures are systemic or higher up the management chain in order to avoid individuals being unfairly scapegoated; or where it would be unfair to do so because there has neither been the need nor opportunity to hear from the individual criticised. The practise of not naming individual professionals who are criticised without allowing them a proper opportunity to comment and challenge such criticism is not new (See for example this post by us from last August). So, whilst The Times are right to identify that the guidance does briefly remind judges of the need to adopt a fair process to professionals who might be in the firing line, insofar as their headline implies that this is somehow novel or that it is introducing some new protection that is not correct.

In fact, whilst it mentions these issues of fairness, the new guidance about the naming of social workers primarily suggests not naming social workers because of a perceived risk that it will contribute to identification of a child.

Although it doesn’t ban the naming of professionals and local authorities, this new guidance might be seen as tending to reverse the starting point that professionals and local authorities should ordinarily be named and to that extent would be a drawing back from the previous move towards greater transparency. The guidance says (in places) that the aim is to ‘avoid any risk of jigsaw identification of children’ (our emphasis).

The guidance now issued seems to replicate word for word a draft proposed in 2016 by Dr Julia Brophy. That draft guidance was deprecated by Mr Justice Hayden at the time in a case called Re J (A Minor) [2016] EWHC 2595 (Fam) :

37. There is no doubt that Dr Brophy’s research is, as one would expect, very child focused. I am concerned however that in expressing her aim to be striking ‘a better balance between the policy that more judgments should be published’ and the concerns of ‘young people’ about ‘deeply distressing’ information ‘in the public arena’, Dr Brophy has lost sight of the legal framework that requires to be applied in any decision concerning publication. We are not concerned merely with a ‘policy’, to publish more judgments, rather we are applying the obligations imposed by Article 10 and Article 8 ECHR. This has been established law since the decision in Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR. Sir Mark Potter (P) observed:

[54] Nor does it mean that, in the course of Children Act proceedings conducted within the High Court, the judge may not, in the welfare interest of the child and in order to protect his or her privacy under Art 8, make an injunction or order which prohibits the identification of the child not simply to the extent set out in s 97(2) of the 1989 Act, but for a period beyond the end of the proceedings (eg until the age of 18). However, in deciding to make a long-term injunction aimed at restricting the reporting and publication of proceedings involving children, the court is obliged in the face of challenge to conduct a balancing exercise between the Art 8 rights of the child and the Art 10 rights of the parent asserting such right, and/ or, where press or media interest is involved, the Art 10 right to report and discuss the circumstances surrounding, as well as the issues arising out of, a case of public interest…

“[58] In A Local Authority v W, L, W, T & R; (By the Children’s Guardian)[2005] EWHC 1564 (Fam), [2006] 1 FLR 1, I summarised the effects of the judgment in Re S in this way: ‘There is express approval of the methodology in Campbell v MGN Ltd in which it was made clear that each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out.‘”

38. I have highlighted the above passage because it represents, to my mind, the clearest and most concise expression of the analysis that is required. Thus it follows that whilst Dr Brophy’s detailed suggestions are helpful when addressing the proportionality of intervention in a particular case, they must not be regarded as constructing a paternalistic presumption of privacy for every child in every case. I am sure she did not intend that her work be construed in this way. In a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.

As far as we can see, there has been no subsequent change to the law which undermines Hayden J’s analysis, and we do worry that the guidance now being reproduced will be over-interpreted and the court’s responsibilities under Article 10 diminished. Although the guidance does not envisage that there will never be any publication of judgments (it would be a bit pointless if it did!), it is difficult to see how a starting point that the court should operate on the basis that it may only publish information where there is no risk can allow for the proper balancing that the law requires. Such an interpretation could lead to courts giving some sort of general priority to Article 8 (the right to private and family life) over Article 10 (the right to freedom of expression) – which is legally wrong.

In the checklist, the guidance suggests the local authority should be named :

We think this looks like a presumption against publication and is a reversal of current practice.

The guidance is more categorical regarding the naming of social workers where the following text is accompanied by a red cross :

Here the guidance suggests that ‘other options’ are to release the judgment to Ofsted or other official body – but whilst that might increase the change that pressure will be put to bear on a failing local authority so that improvements are made, that does not deal with the Article 10 issues, nor the broader democratic rights of the public to know what is done in their name.

There are a number of other less controversial points, which are broadly in line with our own guidance. There are also a number of points covered in our own guidance which do not feature in the Brophy lists, but which we think are useful pointers to judges to assist them in avoiding jigsaw identification (above and beyond the risk of identification through naming the local authority – which in all but the smallest or most rural local authorities is a low risk providing that other unique or specific features are smoothed out or removed).

Wider points

The President does not seem to have taken the opportunity to reflect on other research and guidance, in particular the Cardiff Nuffield research undertaken to evaluated the 2014 reforms, and our own guidance note on the publication of judgments, which makes some very necessary practical suggestions about how to ensure anonymisation is both effective and necessary. With respect to the President, we think that the greatest risk to children is in the slapdash anonymisation process which continues to lead to far too many judgments being published with rogue names left in by mistake.

So is the Daily Mail right?

No. They have suggested the guidance is much more hard and fast than it really is. Sir Andrew does not say that the identities of social workers and other professionals and local authorities should always be withheld as the article states. That is inaccurate. But headlines about secret family courts and the use of emotive terminology about suppression of information are entirely predictable, and have some force, given the overall tenor of the guidance and the fact that a tabloid newspaper cannot really be expected to express the nuanced distinctions between guidance and rules and their interplay with case law.

There are two potential adverse effects of this guidance :

• that the guidance will give succour to headlines about ‘secret family courts’ and further detract from attempts to build confidence in the system for the ultimate benefit of the public including children (indeed it already has).
• that the guidance will lead to fewer judgments being published or fewer judgments being published in a meaningful form and probably fewer cases being picked up by the media (because they are so stripped back that there is nothing to hang a story from). The overall effect of this is a reduction in transparency and confidence in the system – and potentially of a reduction in the impact that a judgment can have on public accountability and scrutiny through media attention as a driver for change – change that is so desperately needed by the children that the system serves and sometimes fails.

Feature pic : curtains by Sarflondonunc on Flickr – creative commons – thanks.