This blog post originally appeared as an article in the March 2019 issue, Family Law  Fam Law 325, and is in response to Louise Tickle’s February article at  Fam Law 122.
‘Fourth Estate’ is a regular column in Family Law by Louise Tickle, award-winning journalist (and fellow Transparency Project member). In ‘I call Humbug’ published in February  Fam Law 122 Tickle argued that secrecy is an insidiously harmful, accidental by-product of privacy in the family courts; she contrasted open scrutiny of reporting by journalists (like Andrew Norfolk for The Times) with the closed nature of scrutiny of those operating within the family justice system particularly in light of the guidance issued by the President of the Family Division on the proper starting point when interpreting the law on naming councils and professionals in published judgments.
Tickle shared her original draft with The Transparency Project, prompting an email exchange. Some of the points made were taken on board in the final version. This column flags those that weren’t. We had hoped to offer this view contemporaneously in the spirit of open dialogue and the sort of cross-fertilisation of ideas across professional disciplines that Tickle rightly concludes is a key component of well-functioning systems that are non-defensive, reflective and open to continuous learning through cross-fertilisation of ideas. However, we had already submitted our regular column for the month (see  Fam Law 203) and extra space (understandably) could not be found at the last moment. Page 2
Tickle is right, in my view, about the public interest in open scrutiny of family justice decision making and to flag potential difficulties with the newly endorsed Anonymisation and Avoidance of Identification of Children Practice Guidance (which now sits in apparent tension with provisions still in force from the former President, Sir James Munby on naming identifying public bodies). She is also right about systemic barriers in the appeal system to effective justice for most litigants, and in her observation that there is some evidence that lower courts may be routinely failing to apply the fundamental law on freedom of expression/reporting restrictions.
Here is where we disagreed (with a brief summary of Tickle’s main points as I interpreted them, before my responses).
The Times pieces
Tickle refers to Andrew Norfolk’s piece in The Times of 27 November 2018, ‘Jailed rapist given chance to see his victim’s child: Council investigated over ‘perverse’ decision’. She says he did nothing more than report Woodhouse’s revulsion that her abuser had been given notice of care proceedings (perceived by Woodhouse as an invitation to apply for contact) and that ‘Norfolk’s journalism was dumped on from a very great height. Some commentators were practically spitting’. But that is not what The Times/Norfolk wrote. If Norfolk had written that Woodhouse perceived the standard legal requirement to give notice of care proceedings to any legal parent as an invitation for an abuser to apply for contact, and gone on to question whether that typical practice was abhorrent, with legal reform or new guidance on implementing it overdue, that would have been a fantastic, thought-provoking piece of journalism.
What Norfolk’s piece actually did was spin Rotherham Council’s routine compliance with rules to give notice of issue of care proceedings to any legal parent, into a claim that the council actively chose to invite him to apply for contact with the child of the woman he had groomed, sexually exploited and raped. This was conveyed as yet another example of the family courts allowing abusers to re-traumatise their victims. The Transparency Project wrote about this on our blog: ‘The Sammy Woodhouse Story and Associated Campaigns An Update’ (Transparency Project, 1 December 2018). This is a shame, because it actually makes sense that underpinning assumptions behind long practised legal rules might be worth re-evaluating in light of societal changes that have taken place over the last 30 years in respect of victims of abuse. However, the opportunity to encourage reflection on whether and how any reform could be lawfully effected was lost, as most family justice professionals focussed on the self-serving spin designed to sell The Times’ story. The key facts that Norfolk made sure he did include in this follow-up report: ‘MPs aim to deny rapists a claim to victims’ children’ (The Times, 24 January 2019), illustrate pretty plainly what was missing the first time round:
‘Under existing rules it is mandatory for a local authority seeking a care order to serve notice of proceedings on any parent, even if they have no responsibility for the child. A council can seek exemption in exceptional cases but such requests are rarely approved by the family court. Rotherham council made no such application.’
We would agree that no criticism is due of The Times or Norfolk for this piece.
Scrutiny of the press
Tickle then argues that journalists like Norfolk (in contrast to family justice professionals) do not get to hide. They are highly visible and we, the public, can call them out on any inaccuracy, bias, and even unfairness.
At one level this is true, and it is interesting to hear that journalists, like the subjects of their writing, Page 3
sometimes feel exposed too. However, I would argue the opposite. Journalists are not meaningfully held to account at all, let alone visibly, because a few Twitter comments or a blog post simply have hardly any reach compared with that of journalists have via mainstream news media publications. Comments and critiques by practitioners (however apt, informed and reflective) rarely reach the general public in significant numbers. Many in the family justice and social services sectors think that certain publications can and do distort and mislead readers with impunity. Journalists and publications make a point of studiously ignoring our tweets and blog posts, even when directed as questions to them on twitter. The Independent Press Standards Organisation (IPSO) tells The Transparency Project that we may not publish correspondence once engaged in the formal complaints process. This limits our ability to inform the public. Persuading a news outlet to link to the sole primary source they are reporting, namely the family court judgment published on BAILII at considerable judicial time and public expense, is like pulling teeth.
News publishing is driven (sometimes corrupted) by profit and politics. It is also inadequately regulated, as we have known since the Leveson enquiry. Practitioners in the family justice system will continue to ask, on behalf of the children and vulnerable adults and, to a lesser degree, those working within it for higher standards of reporting. For example, on 13 January 2019 Sky News ran a (now deleted) news report based solely on a family court judgment, TK v SK (Children: Fact finding: Serious Domestic Abuse)  EWFC B81, which minimised and trivialised serious abuse to sell a story. The headline ran: ‘Man loses court fight over wife’s flirtatious kisses on text messages’. Sky News text online is outwith the jurisdiction of either Ofcom or IPSO but other news outlets repeated the story (originally provided by the Press Association and widely distributed) without the technically inaccurate headline. Reporting like this, that many found abhorrent, simply isn’t prohibited by the Editors’ Code. This in practice permits papers to trivialise and sensationalise serious abuse all they like, so long as not seriously inaccurate or representing that trivialisation as something else. Following previous experience with complaints and consideration of the parameters of their regulatory scheme, we were not confident that a complaint to IPSO would bear fruit. We are also doubtful that intended new guidance from IPSO on reporting of domestic abuse will offer any real remedy, especially as its guidance to date ignores reporting on family courts.
Perhaps some journalists can be unfairly vilified for the systemic problems of a profit-driven media model in economic recession, or for their sub-editor’s ill-chosen headlines (in fact, the named journalist has rarely had any say in the headline). However, front-line social work practitioners are routinely criticised in judgments, media reports and regulatory decisions, for things over which they had no possible control. We cannot realistically expect social workers and independent reviewing officers to risk their jobs by resisting systemic financial and political pressures cascading down through their line managers, in the current political and economic climate. Some journalists may feel similarly powerless, but there seems to be very wide scope under self-regulation.
Naming local authorities and professionals in published judgments
Tickle goes on to write about the unintended effect of the statutory scheme, under s 12 of the Administration of Justice Act 1960 and s 97 of the Children Act 1989 of creating secrecy too easily dressed up as ‘privacy’. She rightly notes that some courts do not publish at all. Cardiff University research on publication of family court judgments found huge variance between judges who published nothing on BALII and those who published regularly (J Doughty, A Twaite and P Magrath, 2017).
She asks how the public are to know what is going on in their name or which councils may require urgent action to prevent wholesale failures to children if even judges who do publish start routinely redacting the names of councils and professionals in response to the new guidance.
In addition to asking whether the new guidance is the correct interpretation of underpinning law, I would also ask whether it is already being over-interpreted. In the published judgment of A Local Authority v B, H and I (Sibling as carer or adoption)  EWFC B1 (a Bournemouth Family Court decision to permit placement for adoption rather than placement with a sibling) HHJ Dancey redacts the identity not just of all professionals (save counsel), but even of the local authority itself. He did not (explicitly) balance Art 8 and 10 ECHR interests, but merely stated:
‘. . . in accordance with the Practice Guidance issued in December . . . I have not identified the local authority or any of the professionals on the basis there is no need to do so.’
The new guidance itself says that the starting point on whether to name the council should be a balancing exercise although it introduces the idea that the exercise now start with the premise that a judge should name a council only if satisfied this poses no risk of identification of children or that the public interest outweighs any risk, effectively creating a new starting presumption. It is obviously right to exercise caution around naming of councils and professionals, not just in terms of specific risk to identification or harm in an individual case, but also to avoid unwarranted scapegoating of frontline professionals. However, the Bournemouth judgment is some leap from the former President’s interpretation of what is required in cases such as care and adoption cases that raise issues of the highest public interest:
‘In all cases where a judge gives permission for a judgment to be published, 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.’ (‘Transparency in the Family Courts: Publication of Judgments: Practice Guidance’  Fam Law 222, para 20)
The newly endorsed guidance checklist on keeping detail of sexual abuse of children out of judgments in particular is extremely welcome and long overdue. However, we do not think the recommendations on anonymising local authorities are helpful. The Transparency Project produced its own guidance note for families and practitioners on publishing judgments in 2017 which can be downloaded from our website.
The current position is therefore uncertain. We await with interest the outcome of Louise Tickle’s appeal against a reporting restriction order, listed for hearing in the Court of Appeal on 19 March 2019. We hope this will offer clarification on applying Arts 10 and 8 ECHR rights in any particular case to deciding whether and to what extent to name professionals and councils in published judgments.
Non-practising solicitor, Transparency Project member
Feature pic by Paul Downey on Flickr (Creative Commons – thanks!)