This weekend a judgment from care proceedings was published on BAILII, late on Friday night. This is not unusual.
But what was unusual was the fact that it was a judgment relating to a fact finding hearing in respect of sexual abuse to a young child, in which all the parties, including the child and both parents and the intervenor (against whom allegations were made) and the local authority were named in full. All of the detail of the allegations and the medical evidence was set out in full and graphic detail.
Several lawyers realised immediately that this must be a grave error as indeed it was. But the judgment remained publicly available for almost 24 hours. There was limited tweeting about it with a link to the judgment, and it appears all of that has now gone.
The Transparency Project immediately notified BAILII and attempted to make contact with those involved in the case by contacting those counsel whose email address we could identify from the judgment. They soon confirmed the awful truth – that the child had been publicly identified.
Although we now know that efforts were being made by the judge and court staff to get BAILII to take the judgment down over the course of Saturday it is in fact only because an eagle eyed lawyer who happened to have a contact at BAILII was able to ring the contact on his personal phone. WIthout that stroke of luck the judgment would still probably be up until Monday, when the poor chap at BAILII arrived to find a handful of frantic emails all on the same topic.
We understand from those involved in the case that an anonymised version of the judgment had been prepared and that through human error at the court the wrong version was sent to BAILII who, entirely blamelessly, published it as requested.
This is no sort of a system. In this instance – probably – no actual harm has been done. Fortunately BAILII do not allow google to crawl their site so it won’t show up in google and will in all probability not exist on the internet at all (if some other site such as Family Law had picked it up this might not be the case). Few will have seen the judgment, and most of those will probably be professionals who will not disclose it further. But if that is so (and we don’t really know that it is) that is by luck – and a child’s lifelong Article 8 rights to privacy should not be down to luck.
Whilst guidance that promotes the greater transparency of proceedings of this sort in conjunction with the protection of the privacy of those involved is to be welcomed – it is reckless to allow the guidance to operate on an ad hoc basis in the absence of robust operational procedures laid down by HMCTS / the judiciary to ensure that privacy is maintained – along with the staff resource and time to implement them. It would be easy to say that the judge in question should have checked which version of the judgment was sent to BAILII, but that would be to neglect the reality which is the significant workload of the judges – who struggle to find time to implement the guidance at all and who either (in my experience) ignore the guidance entirely because it is too time consuming or alternatively have backlogs of judgments that they have no time to properly anonymise or otherwise deal with.
And there can be no passing of the buck to BAILII either. They are a small charity with very limited funding and a small staff, who publish what they are asked by judges to publish and who do not have 24:7 cover. One might argue that the function performed by BAILII is one which should be properly resourced by central government and that there should be a unit at some stage in the process whose role was to anonymise, check and double check prior to publication – and staffed to deal on an emergency basis with enquiries and things that go wrong.
We wonder whether HMCTS will notify the family and their legal representatives of this potentially actionable breach of privacy in order that they can seek legal advice and if appropriate make a claim or complaint?
It is frustrating that some 2 years after implementation of the President’s Transparency Guidance this issue has not been tackled. Failures of this sort set back the debate about how we can properly progress transparency – the project would like more judgments to be published where that is appropriate, but questions how that can safely happen without proper resource and focus on operational issues. We welcome moves by Dr Brophy to draw up guidance on anonymisation of judgments but observe that any guidance will need either judicial or HMCTS human resource and training if it is to be wholly effective.
For obvious reasons we are giving very limited information about the case. We will not publish any comment which contains further details of the case.
The Transparency Project will continue to notify judges and BAILII of judgments which appear to have been published in error or where identifying information appears to have been included in a judgment. Whilst we have carried out this role on a number of occasions now (although this is the worst to date) we cannot and do not aim to monitor all published judgments and would encourage better scrutiny of them prior to publication.
Update 18/04/16 : There has been some discussion on twitter about whether BAILII might be at fault here or may have committed a data breach. Bailii have today tweeted a remind that their role is to simply publish what is given to them by the courts / judiciary in the expectation that any anonymisation will have been carried out by them already. See below :
It would be really useful to have access to the evidence which shows that the identification of children in family cases is harmful to them – I remain unconvinced that there is any. It would also be useful to know exactly what form this harm is believed to take. Without that evidence, the belief that harm is caused is (in the words of Munby in Norfolk County Council v Nicola Webster and 5 Others [2006] EWHC 2733) ‘in significant measure speculative’. We may be getting ourselves in a bit of a flap over nothing. Comparisons with other jurisdictions may be productive in this regard.
This was an extreme case where medical details should never have been published. If is quite different to considering possible harm caused by naming an uninjured 5 month old in Webster. Not that I agreed with that myself but I concede the harm was speculative. There is absolutely no argument to be made that the child in the case described above should have been subjected to public scrutiny. To minimise the concerns as a bit of a flap indicates you have not read the post.
But it is entirely reasonable to expect legislation and practice to be based on evidence rather than on speculation. I don’t necessarily disagree, but it seems extraordinary that for something so important we are relying on what amounts to little more than habit.
Not sure what you mean by habit, Nick? There is no habit of publishing the name, age and detailed intimate medical information about children along with graphic accounts of abuse perpetrated on them along with the names of the adults who have been found to have perpetrated that abuse / their parents. It is highly unusual to publish this level of information complete with identifying details.
If you mean we *assume* harm will be caused by publication I think you need to appreciate that this was a case right at the end of a spectrum in terms of the intimate and traumatic detail. I don’t see any basis for saying anything other than it is very obviously harmful to a child to have that level of private sensitive information on the internet ready for the child or anyone else to find. It seems that in this case a decision had been taken that anonymised publication of some sort was appropriate (although we don’t know how extensive anonymisation /redaction was), so it was never a case where there would have been no information at all. In many other cases it is less obvious that harm could or would be likely to be caused, particularly where there is some level of anonymity – and as the President has rightly identified we should not assume harm.
The issue really in this case was the combination of highly sensitive and distressing detail with all the identifying details and it is that combination that had a particular potential for harm that I think really should need no explanation.
Sorry if I’ve misunderstood your comment.
There seems to be two points at play here. First, is a question about why a child should be afforded privacy and protection in courts when adults are not in criminal courts and the second, what assumptions are we making about the harm caused to children of being named publically?
First, as a society, we are not morally or ethically sensitive enough to respond to this information appropriately. I can well imagine if children are named and the details of their harm made public, you will have tabloid journalists harassing the children at home and the school gates. I see nothing to reassure me that we have the maturity to resist this (think Bulger). This leads to the second point:
Children are not equipped to manage the level of scrutiny and pressure caused by media (social as well as traditional) intrusion. In the harm that they endured, the children are passive and blameless and being named will simply perpetuate their harm. I think about the children I have worked with who have been the victim of indecent images and who struggle at the thought of the moment of their greatest vulnerability being captured and available for the rest of their lives to others to take pleasure from. There is little evidence base about the harm caused by naming children because we haven’t really done it. The reason we have not done it is that it doesn’t take an academic study to tell us that naming a child and writing about the terrible things that have happened to the child, is not in its best interests.
This brings me to my point, which is this. Why would you name a child and what right to we as a society have to know about the harm that they endured? Doing so seems voyeuristic and gratuitous. I have no issue with transparency in so far as publishing details but I do draw a line at names of victims.
Yes, I agree A social worker. There is a tension between the public interest in what happens when adults mess up badly and abuse or neglect children (or when the state wrongly accuses them of messing up badly) and the privacy of the child involved. An abusive adult might forfeit their right to privacy and other children might be made safer by the public doing of justice – but the individual child did not asked to be abused, or the subject of proceedings and even in the absence of direct evidence of harm arising from publication they still have an expectation of privacy. In my view usually this balance will fall in favour of some anonymised publication – but there are some cases it will be impossible to publish without more extensive redaction of intimate details, and where it may not be appropriate to publish at all (or for their to be some delay in publication). For me the real issue is whether it would be better to have a system where anonymised publication were the norm, with proper systems in place for that anonymisation / redaction, and proper funding for all to be represented where there are arguments for doing something different.
Sorry, I hit send before finished. I think that would focus people’s minds – the lawyers representing children and local authorities in particular, and those of judges. I think that although it is counterintuitive if you approach if from a “privacy” angle, it might produce more robust and safer results. I think at the moment the system is lazy and it promotes errors of this sort.
I agree with Nick to the extent that there ARE jurisdictions were there is a presumption that all courts will be open – including a number of States in the US and apparently there are not increased rates of teen suicide in those States relating to court cases (as I think the ALC are worried about).
So I agree we need to base policy as firmly on evidence as we can. I am troubled by how insular we appear to be in this debate; I can’t recall any discussion or consideration in the domestic argument of those jurisdictions which are more open.
But I also agree there is no benefit whatsoever to a child being named in such an incredibly detailed and graphic judgment about sexual abuse – and I don’t need an academic research grant to come to that conclusion.
I know bailii are “Blameless” in this but surely they publish that many judgments with the common rubric at the start of the judgments should the penny have dropped?
I am more shocked at this given two weeks ago an important case Judgment was taken down from bailii by a request from lawyers acting for an L.A, the Judge astonished by this has made an additional judgment, which now includes a new citation, when that judgement will be published is anyone’s guess.
I would say that this is not the first time children have been identified, I was lucky enough to spot just an instance and bailii were contactable a lot easier than it seems with the above matter, in that one I remember it was an attached RRO order to a judgment naming the children on the published order.
Humans are fallible creatures, no matter how much we try and make sure mistakes are few and far between, they will happen, thankfully the possible damage was stopped before it found its feet.
Jerry,
If appropriate could you give Dr Doughty some further information about the recent example you cite? She might be interested for her research.
Lucy
Just on the Bailii issue, it should be clarified that Bailii are told not to interfere in any way with a judgment they are sent, but to post it automatically. If an error is then notified to them they will remove the judgment pending resolution of the problem. This is partly why the site is not searchable by search engines in the usual way.