What do we do when information is already in the public domain?
And what are the risks to the child if an adult party is identified?
On Friday 8th July the judgment was published of the President of the Family Division in the Matter of X (A Child) (No2) [2016] EWHC 1668. The case came before the President on an application for a Reporting Restrictions Order (RRO) to keep the identities of the adult parties confidential.
Much of the information discussed in family cases is already confidential due to the operation of section 12(1) of the Administration of Justice Act 1960 but if any party to a case wants the court to impose wider restrictions, that party must apply for a RRO. As this is an order which inhibits freedom of expression which is protected by Article 10 ECHR advance notice of any such application should normally be given to the national media via the Press Association’s CopyDirect service. For further discussion about the restrictions on what can be published about family cases see this post.
The complication in this application before the President however, was that he had already published in June 2016 a judgment relating to this case where the birth parents were named. The President commented:
On Sunday 12 June 2016 a well-known and respected legal blog, suesspiciousminds.com, published a detailed report and analysis of my judgment. The birth parents were named and a link was given to a contemporaneous newspaper report of the proceedings in the Crown Court which had reported the birth parents as indicating that they would be launching a fight to recover their child. I make absolutely clear that suesspiciousminds.com was fully entitled to publish what it did and cannot, and should not, be criticised for doing so. Publication of the birth parents’ names, and repetition of the material which was already in the public domain, was prohibited neither by statute nor by order. I understand that, following an approach by one of the advocates, suesspiciousminds.com removed the names of the birth parents and the link. That, of course, was entirely a matter for suesspiciousminds.com. I merely record the facts in the interests of transparency.
On the following Monday morning, 13 June 2016, one of the solicitors contacted BAILII asking for the judgment to be temporarily taken down to prevent any further and wider publication of the birth parents’ names. BAILII emailed me asking “Should we take it down?” When this email came to my attention, I responded to BAILII saying No. The judgment remained, and remains, as I intended, publically available on BAILII.
Following this email exchange, the President was persuaded to grant a further RRO restricting identification of the birth parents until the next directions hearing in this case in July when the issues could be considered again. The matter is listed for final hearing in October. He explained his reasoning in this way:
If the media are permitted to identify the birth parents and to publish photographs of them, the resulting publicity will, in the nature of things, have an impact very considerably greater than if the story is reported without those details: see the well-known words of Lord Roger of Earlsferry in In re Guardian News and Media Ltd and others [2010] UKSC 1, [2010] 2 AC 697, paras 63-64. In the unusual circumstances of this case that impact will fall, albeit indirectly, on the adoptive parents, and therefore X, as well as on the birth parents. There is, as it seems to me, and for the reasons articulated by Mr Dodd and Mr Farmer, no principled basis for protecting the anonymity of the birth parents in their interests or for their sake; the only justification for preserving their anonymity in the short term, and I accept that there is such justification, is the pressing need to protect X, and also the adoptive parents, from the enhanced glare of publicity in the interim.
Ms Fottrell puts the point very clearly: to permit the naming of the birth parents would result in intense media scrutiny and the exposure of them to the media glare, which would in turn increase the pressure on the adoptive parents and heighten the risk of X being identified as the child in the case, even if not to the world at large then at least to those in X’s day to day world who know X but are unaware of X’s story. Identification of the birth parents will only add to the overall intrusiveness and the distress involved for the adoptive parents and X.
Discussion amongst the Transparency Project
This judgment and the reasoning for it, provoked some discussion via email.
Louise Tickle made reference to the paragraph cited above about the risk of the child X being identified by further publicity. This was the same argument made against her application to publish ‘Annie’s’ story; see Tickle v North Tyneside [2015] EWHC 2991. Louise questioned what evidence was being put before the court for this assertion.
This was an important point on which Lucy Reed’s and my argument was made in the application for Annie’s story to be told: the assertion that identification would happen was made by the LA with very little if any evidence of how that would happen.
I think this sort of assertion needs to be tested. These parents have been identified before, and as far as I know, nobody has as a result identified the child or the adoptive parents in question. How would the birth parents’ continued identification lead to this happening now? I don’t doubt that masses of media coverage would be hugely distressing for the adoptive parents by the way, who are in an appalling position, (I wonder if their distress could be enough to get a reporting restriction order?), but simply asserting that identifying the birth parents will identify the child and adoptive parents without laying out the mechanisms by which this could realistically unfold seems not very rigorous to me.
Alice Twaite agreed. Although she thought this was the right decision in this particular case, more thought should be given to setting out how harm would be done to the child.
I agree. Specifying how that might happen would be a basic requirement. As with the specifying that happened recently on how it might come about (perhaps) for the Butler appeal if made to be prejudiced.
But in this particular case I feel very strongly that it is the right order. Not just because of the impact on the adoptive parents and indirectly the child but specifically the potential impact for the child of anything that may reduce the confidence and likelihood of the adoptive parents who feel threatened already, having the confidence to mediate some kind of future involving the birth parents for the child if warranted post re opening. Anything that makes them defensive and shut down militates against what may be a crucial option for the child.
Louise responded
Alice, I hear what you say. And I think it’s the right order too, in this case. But the logic behind such automatic assumptions needs more testing.
Failing a demonstration of the mechanics of how the adoptive parents and child could realistically have been identified via knowing the identities of the birth parents, I hope it would have been sufficient to explain the distress to the adoptive parents. Of course, it may not. But if Lucy Reed had been in court on the press association side, I imagine she would have demanded to know exactly how the other side were suggesting that adoptive parent and child identification would take place.
Sarah Phillimore commented that the internet was truly a game changer when it came to issues of confidentiality. If the court did not grapple with this, many others would.
What the President needs to understand is the sheer scale and nastiness of the online community and the fact that they WILL publish information with impunity.
We see a very clear and horrible example in the Hampstead Hoax case and the on going impact on the children in the Hampstead community after that case went ‘viral’, encouraged by many irresponsible and dangerous people. See P and Q (Children) (Care Proceedings: Fact Finding) [2015] EWFC 26.
If these issues and information aren’t controlled and managed by the courts, other far less responsible groups will take the information and run with it and do enormous damage. And I can show how that happens; there are many other examples, Hampstead being only the worst.
In this case the cat is well and truly out of the bag. That needs to be recognised and grappled with and measures taken to protect the adoptive family and X. I think the President knows that as he expresses scepticism of any continued positive effect of the RRO albeit it is the right order now.
We would welcome any further thoughts or discussion on these issues raise. The final hearing in this case is due in October. It will be hugely significant in the continuing debate about non-consensual adoption. We need further consideration about how the legitimate public interest in these serious matters can be satisfied, without causing harm to the child who is now unwittingly at the centre of this storm.
The judgment says that the birth parents now also want to keep their names away from the public gaze. This suggests to me that all parties might feel they have a better chance of concentrating on the immediate issues and working towards a resolution, if they aren’t exposed to the public at this stage. So I’m not sure this is only about the adopters’ view.
Yes, the judgment records the birth parents now are not keen to publicise their identities. That is very significant for this particular case. But it does not detract generally from what I think is now an urgent need to have more open discussion about the evidential basis to support any future prohibition on allowing people to discuss their cases.
Can we really just say without more that identifying adults must inevitably lead to identification of children AND this inevitably causes children harm? What about the jurisdictions with more open family courts? What can they tell us about harm caused to children by more available information?
No-one is claiming (afaik) that publicity is ‘inevitably’ harmful. The debate is clouded by perceptions that in the UK we have a ‘gutter press’ which can’t be trusted. (I’m not supporting that argument, but it’s a widely held view.) So unless child is old enough to understand the consequences of publicity, it’s not surprising that adults who represent them are cautious.
There are sometimes specific arguments e.g. in the Webster case the child’s guardian thought it would be better for the baby if the parents were focused on the job of safe caring and not distracted by media attention. I thought that was a valid argument but it was dismssed by the judge because a baby has no sense of privacy. Hmmm
In general, courts in other jurisdictions don’t record in the minute detail that our judges tend to do, so difficult to compare the effects on parties.
Hmmm. that isn’t my perception. There seems to be an assumption in some quarters that publicity IS ‘inevitably’ harmful.
Or, if that is considered unfair, I don’t think anyone could argue that any such assumption, if made, appears to be rarely tested, explained or weighed against competing principles of importance, such as confidence in our legal system.
I have discussed before my unease at the ‘minute detail’ that some judgments go into – particularly about issues of sexual abuse. I am not convinced such details are necessary, and particularly not if they are used as an argument against greater transparency.
I agree it is the default position, because the law starts from the position of family hearings being held in private. The occasional case features eminent lawyers arguing on behalf of press against that. If anyone does say harm is inevitable that probably stems from the low reputation of the press. Not sure about social media, as I try to avoid the excesses!
(Sarah P and I and many others agree that judgments are often too detailed. Any thoughts from others on why that might be? And what might be done about it?)
I am going to throw in a couple of different perspectives. Not necessarily in this case but in general what actually is the risk if adults are named? Adults are named in criminal cases and the cases are reported. These adults will all have relatives, some will have children. The cases that are reported include previous offences and psychiatric reports, so lives are laid bare in the media. I do not feel there is any long term impact of this media attention,people serve their sentence and get on with their lives. There are not reporting restrictions if these people are parents and clearly their neighbours etc will know their children’s names. There may be 5 minutes of infamy, but I doubt it would be much longer.
The other is parents very clearly have voted with their feet and are widely sharing their stories on social media. Is the current system acting as paternalistic, when dealing with adults who do not lack capacity, but the system sees them as vulnerable and therefore acts to protect them whether or not they chose to be protected.
I suspect the answer will be that the system is set up to protect the children. Who, if the parents wished to be named, could still be anonymous, in the media and would move out of their home area if a care order went ahead, presumably the first names of the Webster children never made it into the press. If a care order is not made parents frequently go to the press anyway.
My suggestion may be unworkable nonsense but something must be done as as Sarah says what is happening at the moment is far too dangerous and the powers that be need to stop sitting on their hands and come up with a feasible solution quickly.
Hi Sam, that is a real issue – open justice is the norm for criminal proceedings, what ever the impact on children or other vulnerable people. Although there are some systems to protect. But you are right, people who get caught up in criminal cases generally have little protection from exposure. Whereas in family courts it is the other way round. In Webster, the judge did allow the baby to be named, a decision I strongly disagreed with but I can only hope it did the child no harm. But we won’t ever know.
I just think to some extent it is the equivalent of the worried well imposing their own perspective. From my experience families involved with Childrens Services talk very freely, both in their neighbourhood and on line about what is happening, there is little or no stigma. People talk about their families full stop, it’s just middle class families are more likely to talk about their achievements and working class their problems because that is their day to day reality. there appears to be no shame when relatives pile in to court to support one of their family charged with a crime. I wonder how Judges feel about having all these relatives and supporters attend and does it make any difference to their decisions?
Basically there is no privacy in child protection , all the system is currently doing is shutting the door after the horse has bolted. What closed courts do however achieve is some miscarriages of justice, alienation from service users and considerable variation in local practice.