In a judgment published on Bailii last week, called H v A (No.2), Mr Justice MacDonald had to consider a very risky situation that had potentially arisen because of the current Family Court guidance about publishing judgments. This case illustrates an interesting example of responsible journalism (refreshing in the current context of tabloid headlines about feminazis, lefties, and bogus Syrians). Aspects of the judgment, however, raise serious questions about how children and vulnerable people can be protected from harm in this sort of situation.
In July, MacDonald J applied the President’s guidance and sent a judgment in one of his cases to Bailii, because it fell within para 16 of that guidance as a case that should normally be published. The facts make grim reading, and include details about the father trying to burn down the family home, with his wife and three children inside, and later (while in prison) attempting to pay other people to do so.
In his second judgment (given this month), the judge says that the barristers in the case had originally ‘indicated that no anonymisation was sought beyond the anonymisation of the names of the children, the parties and their solicitors’. He then goes on to explain:
Following the judgment being placed on the Bailii website Mr Brian Farmer, the Press Association reporter based at the Royal Courts of Justice, alerted me via my Clerk that it was possible using certain of the facts set out in my judgment (which facts were already in the public domain) as search terms to identify the name of the family in this case by means of information available on the Internet. Specifically, an Internet search conducted by reference to those facts revealed a number of press reports concerning the circumstances surrounding the criminal convictions of the father, which criminal convictions formed the foundation for my judgment in the family proceedings. Those press reports named the father (and therefore, by extension, the family) and identified the address of the former family home. At least one of the press reports concerning the criminal proceedings gave the full name of one of the children of the family by reference to an unrelated incident.
Brian Farmer had obtained this information easily, within a few minutes of reading the first judgment, and was therefore very concerned that anyone else could do so, undermining the efforts made by the court to protect the family. MacDonald J responded by asking Bailli to remove the judgment temporarily, while the lawyers reconsidered the matter.
The judge summarised his conclusions about protecting the family as follows:
… each child had an acute physical and emotional need for a family and home life that is stable, secure and safe from further trauma instigated by the father. I further concluded that in particular the children needed to be brought up in an environment that is not only free from any risk that their father will locate them and again try physically to harm them but also as free as reasonably possible from the anxiety that their location might be disclosed. Finally, I concluded that it was also important that the children’s mother, as their primary carer was placed in a position whereby her physical, mental and emotional state, and thus her ability to meet her children’s needs, was not impaired by a risk that the father would locate the family or by the worry associated with a persistent and pernicious fear that he location and the location of the children would be revealed to the father.
However, after careful consideration, he decided that his original judgment – plus a strict reporting restrictions order – would achieve the right balance between the safety of the children and their mother on the one hand, and the requirements of open justice on the other.
MacDonald J has a reputation as a strong advocate for children, and has no doubt given extremely careful consideration about how he can comply with the publication guidance. But one is left wondering why it is in the public interest to know so much about this traumatised family.