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President considers transparency and privacy in the family courts in the internet age

Injunction granted to local authority

The President of the Family Division, Sir James Munby, has granted an injunction against the identification of a child or his parents involved in care proceedings and, in particular, the broadcasting on the internet of film showing the removal the child following publication on the internet of the removal of the child by social workers.

In Re J (A Child) [2013] EWHC 2894 (Fam) the President said that "the case raises important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, their complaints are about the care system. The case also raises important questions about how the court should adapt its practice to the realities of the internet, and in particular social media."

The mother and the father have had four children: L, born in November 2002, C, born in November 2008, W, born in April 2012, and J, born in April 2013. All four children have been the subject of care proceedings. The proceedings in relation to L and C were commenced in October 2010 and concluded with the making of care and placement orders in May 2011. Both children have since been adopted. W was made the subject of an emergency protection order on the day of birth. Care and placement orders were made in November 2012. J was made the subject of an emergency protection order on the day of birth. The care proceedings have not yet concluded but are likely to do so shortly.
The father has posted much material about L, C and W on the internet, including their names and photographs. The day after W's birth the father posted on Facebook photographs of W and of a social worker, who was named, taken the day before in the hospital delivery suite.

The President said that a feature of these postings was the use by the father of language which on occasions was abusive, insulting, threatening and, indeed, highly offensive. Images of L and C posted in February 2012 were accompanied by the comment that each was worth £200,000 to the forced adoption system. The image of W posted in April 2012 was accompanied by text referring to the child as having been "snatched from the delivery suite by Staffordshire County Council." The image of the social worker was accompanied by the caption "This is the picture of [name] social worker waiting in delivery suite to snatch child." A copy of a letter written by the local authority to the father was posted by him on Facebook in May 2012; the accompanying text referred to the social worker in these terms:

"Waiting in the corner, in the shadows lurks a vampire-ish creature, a wicked, predatory social worker who is about to steal the child from the loving parents. Caught on camera – [name] of Staffordshire social services creeps in the corner like a ghoul, like a dirty secret, like a stain on the wall ... You are a wicked, wicked woman [name] – God knows exactly what you have done, you must be very afraid, now! You WILL suffer for this."

On 14 June 2012 Hedley J made a contra mundum reporting restriction order in relation to W. It remains in effect until 2030.

The President continued:

"7. J was born at home on 4 April 2013, the local authority says against medical advice. The father announced J's birth on Facebook. It included these words: "SS banging on the door we're not answering" and "ss gone to get epo". I very much doubt that 'SS' was here being used as an innocent acronym for the local authority's social services. The internet is awash with strident criticism of local authorities, described as "the SS" or "SS", where it is quite clear from the context that the reader is meant to link the activities of the local authorities being criticised with those of Hitler's infamous SS. The comparison is grotesque and is, and I have little doubt is intended to be, offensive and insulting – grossly so. I make no such finding against the father in relation to this particular publication but I am willing to proceed on the assumption, though without finding, that the father's intent was indeed to encourage readers to make the comparison.

8. Subsequently the father posted on Facebook what the local authority says was the "covert" filming of the execution of the emergency protection order later the same day. J was referred to by name. The next day, 5 April 2013, it was picked up by a website called UK Column Live, which published it via You Tube. It has subsequently been much 'shared' on Facebook. Two days later, UK Column Live filmed an interview with the father which it uploaded to You Tube on 11 April 2013. The father and the mother are referred to by name. On 12 April 2013 the father gave an undertaking to remove all the material posted on the internet and within his control that would identify any of the children as being or having been subject to care proceedings. On 1 May 2013 he further undertook to use his best endeavours to secure removal of such material from the internet. Footage of an interview with the parents in the precincts of the court on that occasion was subsequently put on the internet by UK Column Live. W and J were identified by name. Further orders were made on 10 May 2013."

The local authority applied on 11 June 2013 for a reporting restriction order, an injunction, contra mundum in essentially the standard form. The application relates only to J. It is proposed that the order should have effect until J becomes 18 in 2031.The draft order put before the judge sought:

"3 This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite service for the purposes of preventing the identification (whether directly or indirectly) of the child of:

(a) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to
this order;
(ii) The Child's parents ("the parents"), whose details are set out in Schedule 2 to this order;
(iii) Any individual having day-to-day care or medical responsibility for the Child ("a carer");
(iv) The Local Authority named in Schedule 3 of this order;
(v) Any employee of the Local Authority named in Schedule 4 of this order;
(vi) The Child's Children's Guardian named in Schedule 5 of this order;
(vii) Any venue at which the parents have contact with the child.

(b) Any picture, image, voice and/or video recording of and including the child, the child's parents, any employees of the Local Authority as specified above and the Children's Guardian.

(c) Any other particulars or information relating to the child

IF, BUT ONLY IF, such publication is likely whether directly or indirectly to lead to the identification of the child as being:

(i) A child subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002; and/or
(ii) A child who is or has been the subject of allegations of abuse; and/or
(iii) A child who has been removed from the care of her [sic] parents; and/or
(iv) A child whose contact with her parents has been prohibited or restricted

No publication of the text or a summary of this order (except for service of the order ...) shall include any of the matters referred to in this paragraph.

4 This order prohibits any person from seeking any information whether directly or indirectly relating to the child or the parents or a carer from any of the following:

(a) The child;

(b) The parents;

(c) A carer."

Schedule 1 of the draft order named the child as being J. Schedule 2 named the parents as being the father and the mother. Schedule 3 named the Local Authority as being Staffordshire County Council. Schedule 4 read as follows:

"Allocated Social workers for the child: [name], [name] and any future allocated social worker and/or team manager.
Any contact workers and/or family support workers for the child.
The allocated legal representative for the Local Authority, (currently [name]) in respect of the child's proceedings."

Schedule 5 named the Children's Guardian as being [name] of Cafcass.

The President considered the applicable law:

"21. What may be called the 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989 are to be found in section 97 of that Act and section 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of "material which is intended, or likely, to identify" the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child: see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para [82], A v Ward [2010] EWHC 16 Fam), [2010] 1 FLR 1497, para [79], In re X and others (Children) (Morgan and others intervening) [2011] EWHC 1157 (Fam) , [2012] 1 WLR 182, sub nom Re X, V and Z (Expert Witness), [2011] 2 FLR 1437, para [32]. So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

"22. The court has power both to relax and to add to the 'automatic restraints.' In exercising this jurisdiction the court must conduct the 'balancing exercise' described in In re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591, and in A Local Authority v W, L, W, T and R (by the Children's Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1. This necessitates what Lord Steyn in Re S, para [17], called "an intense focus on the comparative importance of the specific rights being claimed in the individual case". There are, typically, a number of competing interests engaged, protected by Articles 6, 8 and 10 of the Convention. I incorporate in this judgment, without further elaboration or quotation, the analyses which I set out in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at para [93], and in Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at para [80]. As Lord Steyn pointed out in Re S, para [25], it is "necessary to measure the nature of the impact ... on the child" of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, para [33].

"23. I should add two further points. The court may, by an appropriate injunction, extend the anonymity of the child beyond the point at which section 97 of the 1989 Act ceases to have effect in accordance with Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11....

"24. The court may likewise, by an appropriate injunction, afford anonymity to other participants in the process, for example, an expert, a local authority, or a social worker. Such injunctions, however, will not readily be granted: see the discussions in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, and In re X and others (Children) (Morgan and others intervening) [2011] EWHC 1157 (Fam) , [2012] 1 WLR 182, sub nom Re X, V and Z (Expert Witness), [2011] 2 FLR 1437. As I put it in A v Ward, para [181], any such application in relation to an expert or a social worker must be justified by reference to "the particular circumstances or particular vulnerabilities of specific individuals." What I referred to as a 'class' claim, that is, "a claim that any professional who falls into a certain class – and in the case of ... social workers ... the membership of the class is very large indeed – is, for that reason, and, truth be told, for that reason alone, entitled in current circumstances to have their identity protected, in plain language to have their identity concealed from the public", will not succeed. Anonymity should not be extended to experts, local authorities and social workers unless there are compelling reasons."

The President said that "there is a pressing need for more transparency, indeed for much more transparency, in the family justice system." He added that "the remedy [to the loss of public confidence in the family courts] is publicity, "more speech, not enforced silence."

The President considered the impact of the internet on the issue of transparency (in paras 42 and 43) and the concomitant issue of controlling publication of foreign-based internet website providers (in paras 46 and 47).

He concluded:

"[T]here is, it seems to me, a very powerful argument that the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful 'link' in the searcher's mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.

"That, in my judgment, is the balance that needs to be struck in this case if I am to weigh and balance, as I must, J's powerful private interests against the powerful public interests that are plainly engaged."

He granted a contra mundum injunction, expressed to last until the date of J's 18th birthday. It will omit paragraphs 3(a)(iii)-(vii), paragraph 3(b), paragraph 3(c), paragraph 4 and Schedules 3, 4 and 5 of the draft which was put before me. It will not be subject to a 'public domain' proviso. It will contain, suitably adapted, the provisions (in para 65 of the judgment) concerning enforcement against persons outside England and Wales.

The full text of the judgment can be read here.