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Reporting Restrictions and the New Transparency - Part 3

In the final part of her article reviewing reporting restriction orders and the new transparency Mary Lazarus, barrister of 42 Bedford Row, considers in detail the President's recent guidance on transparency in the family courts.

Mary Lazarus, barrister, 42 Bedford Row

Mary Lazarus, barrister, 42 Bedford Row

Parts 1 and 2 of this article have considered recent judgments concerning reporting restriction orders involving: 

This third part considers the President's recent Transparency Guidance, some practical issues and its interplay with Article 8 rights and RROs.

The President's Tranparency Guidance
The President has provided Practice Guidance issued on 16th January 2014 entitled Transparency in the Family Courts – Publication of Judgments.

It reiterates the emphasis, already given by the President in recent judgments, on the 'need for greater transparency in order to improve public understanding of the court process and confidence in the court system' (§2).

Since similar issues arise in the Court of Protection, the President has issued corresponding (although different) Guidance in respect of that Court

The President anticipates issuing further Guidance, more formal Practice Directions and changes to the FPR 2010 and the Court of Protection Rules 2007.  Currently the Guidance will apply only to High Court and county court judgments, but consideration will be given to extending it to all judges including lay justices.

At the start of each judgment the judge will set out the rubric stipulating the terms on which publication is permitted.  If any modification of that rubric is sought, an application to the court is necessary.  Every published judgment will be deemed to contain the following rubric unless the judge provides expressly to the contrary:

"This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court."

It is expressly stated that the Guidance does not override the court's proper discretion in deciding to regulate the publication of a judgment.

The following judgments MUST ordinarily be published, and in all other cases (§18) the judgment MAY be published following proper application:

"16 Permission to publish a judgment should always be given whenever the judge concludes that publication would be in the public interest and whether or not a request has been made by a party or the media.

17 Where a judgment relates to matters set out in Schedule 1 or 2 below and a written judgment already exists in a publishable form or the judge has already ordered that the judgment be transcribed, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the judgment should not be published.

In the family courts (and in due course in the Family Court), including in proceedings under the inherent jurisdiction of the High Court relating to children, judgments arising from:

(i) a substantial contested fact-finding hearing at which serious allegations, for example allegations of significant physical, emotional or sexual harm, have been determined;

(ii) the making or refusal of a final care order or supervision order under Part 4 of the Children Act 1989, or any order for the discharge of any such order, except where the order is made with the consent of all participating parties

(iii) the making or refusal of a placement order or adoption order under the Adoption and Children Act 2002, or any order for the discharge of any such order, except where the order is made with the consent of all participating parties;

(iv) the making or refusal of any declaration or order authorising a deprivation of liberty, including an order for a secure accommodation order under section 25 of the Children Act 1989;

(v) any application for an order involving the giving or withholding of serious medical treatment;

(vi) any application for an order involving a restraint on publication of information relating to the proceedings.

In proceedings under the inherent jurisdiction of the High Court relating to incapacitated or vulnerable adults, judgments arising from:

(i) any application for a declaration or order involving a deprivation or possible deprivation of liberty;

(ii) any application for an order involving the giving or withholding of serious medical treatment;

(iii) any application for an order that an incapacitated or vulnerable adult be moved into or out of a residential establishment or other institution;

(iv) any application for a declaration as to capacity to marry or to consent to sexual relations;

(v) any application for an order involving a restraint on publication of information relating to the proceedings.

In all cases: 

The anonymisation (and also presumably the time and costs of that task) is to be borne by the solicitor of the applicant in the overall proceedings (i.e. principally local authorities) or by the applicant for the RRO where an application is made under §18 of the Guidance.

Costs of transcription are set out unless ordered otherwise.

Recent decisions in the Court of Protection are already reflecting the Guidance.  An excellent example is that of DJ Eldergill in Westminster City Council v Sykes [2014] EWHC B9 (COP) (24 February 2014), an unusual case where he decided that the veteran campaigner Manuela Sykes can now be named in this case which determined important aspects of her care as a dementia sufferer.  He considers the additional factors required under the Mental Capacity Act, not least the wish of Ms Sykes that her case be reported.  At §13 he eloquently and thoroughly explains and applies the law and also provides a neat analogy in considering the importance of privacy as opposed to secrecy:

"Under the Court of Protection Rules 2007, the general rule is that a hearing is to be held in private.

This reflects the personal, private, nature of the information which the court is usually considering.

That is not the same as being secretive; a GP is not a 'secret doctor' because the press have no unqualified right to be present during patient consultations or to report what is said. All citizens have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.

Everyone benefits from, and enjoys, this level of privacy and therefore there is a strong public interest in privacy. Not to allow an incapacitated person the same general right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.

The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice: what kinds of decisions they are making, the quality of those decisions, and so forth.

While it is sometimes necessary to distinguish between 'the public interest' and 'matters which the public finds interesting,' there is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered." 
[Underlining added by the author]

The case of Newcastle Upon Tyne Hospitals Foundation Trust v LM [2014] EWHC 454 (COP) (26 February 2014) deals with declarations sought as to the health trust's treatment of an incapacitated Jehovah's witness.  It highlights that it is yet unclear what jurisdiction applies to Reporting Restriction/transparency where an incapacitated adult whose case is before the Court of Protection has died before the conclusion of the case:

"25. The remainder of this judgment concerns an application for a Reporting Restriction Order made by the Trust on 24 February. At the hearing on 18 February I indicated that I would grant such an order subject to the proper procedures being followed, which eventually they were. I intended to formally make the order when handing down judgment on 26 February, but LM's death intervened. Accordingly, I heard further submissions from Mr Speker and Mr Farmer about the appropriate course to take.

26. The court has jurisdiction to make an order during the lifetime of a patient that will continue to have effect after death unless and until it is varied: Re C (Adult Patient: Restriction of Publicity After Death) [1996] 1 FCR 605. The situation here is different in that the patient is no longer alive. The unusual circumstances raise interesting questions about the court's jurisdiction to restrict the reporting after a person's death of information gathered during proceedings that took place during her lifetime.

27. It seems to me that the proper approach is to make an order that preserves the situation until the time comes when someone seeks to present full argument on the question. I will say no more than that for the present.

28. I make a Reporting Restriction Order preventing the naming of LM, and the medical and care staff who looked after her and the two Jehovah's Witnesses who participated in the proceedings. It does not prevent the naming of the Trust or the hospital, nor discussion of the underlying issues or the court's procedures. Anyone affected by the order may apply to vary or discharge it, whereupon its terms or existence will be looked at afresh."

Reflections on the New Transparency
This article does not propose to cover all the possible implications of these changes which have been raised by eloquent legal commentators elsewhere (in particular suespiciousminds, Pink Tape, Family Lore and dbfamilylaw among others).

We shall leave to one side questions of the administrative propriety of the View(s) from the President's Chambers and the President's Guidance, which have been raised elsewhere, and focus upon a few practical problems, some central Article 8 concerns and the need to avoid secrecy within apparent transparency.

Practical Issues
a) The Guidance sets out who is to bear the costs of transcription in relation to the various types of case/application, and of anonymisation. It is important to note that  the anonymisation task will often involve far more consideration and care than merely converting the parties' names into initials.  A rapid assessment based on a recent pilot and CAFCASS figures has calculated these costs at approximately £1 million/year (see suespiciousminds), and it is unclear how this will play out in the current straitened circumstances resulting from legal aid changes and faced by legal aid lawyers.

b) Anonymisation is a simple concept, but can be very difficult to achieve consistently, quickly, thoroughly and safely.  Even handy word-processing tools have been known to be inadequate in the straightforward cases where family names are being removed; it only takes a lower case letter, minor typo etc or attached Schedule which might go unchecked for anonymisation to be incomplete. 

In the more complex cases where jigsaw identification is a risk, a more careful analysis of the judgment and any attached documents becomes necessary and the risk of leaving in identifying features is much greater.  It is well understood that a single pair of eyes is never enough to safely carry out such a vital task.  The implications for practitioners' and judges' time and costs are significant and mentioned at (a) above, but there is a real danger that with the inevitable pressures of time and work, errors will be made and identities mistakenly published or identification made possible.

It is not uncommon for judgments which have been released for publication – and may have been published – to be subsequently revised or withdrawn because of incomplete anonymisation (indeed this occurred with a High Court judgment earlier this week, sent out to a number of public/publishing agencies and then temporarily withdrawn pending amendment). The danger is that once a judgment has been posted on the internet, by parties other than the original recipients, the original version cannot necessarily be traced or removed. 

c) The Guidance emphasises that it does not override the independent exercise by judges of their powers to regulate publication, and clearly expects a judge to examine whether or not it is in the public interest to publish the judgment (§16), and additionally asserts that the "starting point" is that judgments should be published in circumstances defined in §17 unless there are "compelling reasons to the contrary".  In §18 the more usual matter of an application being made by a party or the Press is covered.  Quite properly in §19 the Guidance states:

"In deciding whether and if so when to publish a judgment, the judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings."

This must require every judge in every pertinent case (soon all) to carry out a separate balancing exercise with evidence addressing the issues relevant to the engaged Article 6, 8 and 10 rights.  This should require the Press to be properly informed if there is any prospect of Article 10 rights being constrained.  It also suggests that time will have to be found in court listings for these hearings or for the extension of normal listings to incorporate such, and time for judicial consideration and judgment writing, and further time for handing down extra/codicil judgments and the subsequent drafting/anonymisation tasks (see also dbfamilylaw).

d) The naming of experts and local authorities is to be the norm unless there are compelling reasons to the contrary.  It is likely that this will need to be raised in every letter of instruction to an expert, and its impact upon the willingness of experts to agree to provide court reports is unknown.   Anecdotally, various highly respected and valued experts are known to be averse to their names being included in court reports.

e) The legal status of the rubric is uncertain, as The President has acknowledged recently, and yet it is said that a breach of the terms of that rubric may found a potential committal point once the proceedings are over.

f) Committal is a difficult process to pursue.  Local authorities will want to protect a child's anonymity and will usually be the party which seeks such committals where there is an alleged breach of anonymisation. However, committal hearings must take place in open court and, according to the Guidance, the alleged contemnor must be named.  Such committal hearings will, of course, also attract media attention.  Where does this leave the child's Article 8 rights?

g) In a recent decision by Keehan J in A Local Auth v DG & Others [2014] EWHC 63 (Fam) he gave trenchant guidance at §42 as to the management of evidence and threshold where there are concurrent criminal proceedings: full, frank and honest accounts and responses to threshold must be provided in accordance with directions and must not rely on the stages reached within the criminal proceedings to delay or withhold information, nor must legal advisors suggest that compliance should be delayed or withheld.  He concluded: 

"i. any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. ..."

However, a further danger arises in such circumstances from publication of family judgments where parties have complied with this guidance and the evidence is included in the judge's reasoning.  Unless careful attention is paid to the timing of publication, that too is both potentially prejudicial to a defendant and possibly to the criminal proceedings per se.

h) Any family law practitioner, and certainly any reader of this article, cannot but be aware of the strange code used to name reported cases.  Very few are given tags that reveal their relevance to the jurisprudence (e.g. Re W (Children) (Identification: restriction on publication)), and in many more cases it is easy to fail to know whether a case might be relevant or of interest because there is little to reveal its pertinent features (e.g. Re E).  It does not appear to be adequately transparent or fair simply to rely on sophisticated, but imperfect, search engines.  It has also been raised by the Press and others both recently and historically that there is a need of urgent reform, so that (in the true spirit of transparency) the Press, public and lawyers can have some idea of what cases deal with which issues.  It would seem essential to ensure that RROs made in the family courts are properly labeled as part of their title in order that they do not, by default, become quasi-super-injunctions by virtue of no-one being aware that there is an order limiting rights of publication.

i) Notwithstanding access to published judgments, the risk of partial and tendentious reporting continues.  The recent case of RS v SS [2013] EWHC B33 (Fam) (23 December 2013) was reported in the Press under the headline  'Mother loses custody battle over permissive parenting style' and went on to focus on X-box use rather than the complex and sensitively handled issues set out in detail in the judgment.   It is a  worrying example of questionable reporting despite access to the published judgment. This highlights the possible further risk to children of their Article 8 rights being abused by the purportedly legitimate exercise of Article 10 rights.  To what extent does the  Article 10 right to impart ideas absolve the commentator of a responsibility not to mislead, and can that responsibility be satisfied by simply linking or referring to the official judgment? Indeed should there be such links as a matter of course? Does such a step offend against the warning on 'editorial control', or is it simply and importantly a way to reinforce proper transparency and better understanding?

Article 8 Rights and Risks
Some of the practical issues raised above clearly have direct implications for Article 8 rights, but we will now consider a wider central consequence of the swing towards Article 10 rights.

The driving force behind these reforms has been the desire to implement more generously the Article 10 rights of the public and the Press.  Inevitably this has resulted in a concomitant move away from the 'automatic' shielding of children and families' Article 8 rights to privacy and family life. 

Although the latter is mentioned in the Guidance by reference briefly to the July 2011 paper published by Sir Nicholas Wall P - The Family Courts: Media Access and Reporting - and whilst one might not expect the 'jigsaw effect' (referred to above) to be mentioned in the Guidance, it being a document of more general application, there are deep concerns among practitioners, child protection professionals and experts about the impact and security of even anonymised judgments on those subject children who are unwittingly at the centre of them.  There is no discussion per se in the Guidance of those Article 8 rights and the deep concerns of children and families about the protection of their own privacy.

This has become known among some as The Timmy Problem, due no doubt to the insightful concerns rapidly raised after release of the Guidance in this highly recommended blog entry. Firstly, comes the problem of the creation of identifying links by family/friends/campaigners, wittingly or unwittingly, which may or may not breach s12 AJA and any rubric/RRO.  Once information is published that directly or indirectly (by linking to other material) identifies a child it is extremely difficult, if not impossible, to eradicate it or even trace all such links.

The implications of this scenario can be seen in the case of  the unhappy grandmother Re B (A Child) [2014] EWCC B1 (Fam) (03 January 2014), the lessons from which are also admirably explored in this analysis and raises significant concerns on this first point.  

The grandmother in this case challenged the local authority's care plan, was assessed and rejected as a carer, appealed and again lost.  She then made several postings on her Facebook page and set up an online petition that directly identified her grandchild.  An RRO was granted and, as this was an older child, the judge determined that the use of photographs should be banned. 

However, it remains concerningly unclear as to what would constitute legitimate complaint and discussion of the case by the grandmother, but would not amount to an indirect identification of the child. 

For example, although this does not appear to have been sought by the local authority in this case and the RRO itself is not quoted in the case report, should the grandmother have been banned from using her own name in any complaint, or from stating her complaints on her own Facebook page?  Unfortunately she did not attend the hearing and so these issues remained unexplored.

Secondly, the Timmy Problem should be considered in the light of the confidently expressed views of Sir Mark Potter P in Clayton v Clayton [2006] EWCA Civ 878 (27 June 2006) , further quoted in Re J:

"given the existence of section 12 of the Administration of Justice Act 1960 which is apt to prevent publication or reporting of the substance of, or the evidence or issues in, the proceedings (save in so far as permitted by the court or as revealed in any judgment delivered in open court), I do not think that, as a generality, it is right to assume that identification of a child as having been involved in proceedings will involve harm to his or her welfare interests or failure to respect the child's family or private life."

These comments do not appear to chime with the risks of isolation, vilification, bullying and labelling – worries expressed by children and those who represent them in the consultation process; nor to reflect the increasing powers that the web gives to those who wish to find and make connections between the names of professionals, experts, local authority areas, and other identifying details of a child/family, i.e. the dangers of 'jigsaw identification' or local identification that have been well understood in many RRO cases (the recent Swansea case and the President's case of Re E being good examples in point – discussed in more detail respectively in part 1 and part 2 of this article). 

It is a rare care case which does not involve excruciatingly sensitive intimate details relating to alleged actual or potential significant harm posed by a child's family to that child, and/or grave damage and difficulties experienced by that child. 

Notwithstanding s12 AJA, it is hard to conceive that revelation of such details in a judgment, combined with the cross-identification of the child who is the subject of that judgment, will not involve harm to his or her welfare interests or failure to respect the child's family or private life.

It is unlikely in all cases that simply anonymising children's and family's names will be enough.  The risk of jigsaw identification becomes ever easier where, for example, the Telegraph is providing a brief online article in relation to published family cases, which will undoubtedly include any unusual identifying features of a case; and there is the frightening prospect of advances in technology (such as Google Glass) which will not even require someone to undertake specific research to uncover details relating to someone's internet presence, such as a link to a judgment.

This serves to emphasise that every case that is to be published should undergo a careful, stringent and evidence-based analysis of the impact on the Article 8 rights of every single affected child and family member.

Avoidance of Secrecy within Transparency
The difficulties associated with anonymised case names without descriptive tags has already been mentioned. Without alteration it is immensely difficult to know which cases have been the subject of RROs.  This confounds transparency even if those judgments are published, as discussed above.

A more complex set of issues arise in this way.  The principal drivers towards transparency have been amply raised in a number of cases, papers, articles and Views from The President's Chamber.  As mentioned already, Re J sets them out powerfully at §25-40 as follows: 

In particular, the understandable outrage of the public and Press at miscarriages of justice has been one of the most potent of these factors, and one can see that the emphasis here has exclusively been on what have turned out to be tragically unjustified separations of children from their families based upon mistaken approaches to contested and controversial medical evidence. 

The President sets it out in uncompromising language:

"29. ... We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. Of course, as Wall LJ said in Webster, para [197], "the system provides a remedy. It requires determined lawyers and determined parties." So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.

30. Almost ten years ago I said this (Re B, para [103]):

"… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential."

I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.

31. The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism. So far as concerns principle I can do no better than repeat what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, where, having referred to Holmes J's dissenting judgment in Abrams v United States (1919) 250 US 616, he continued:

  'freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. … It facilitates the exposure of errors in the … administration of justice of the country.'"

And there is overwhelming persuasive force in these points.  It is incontrovertible to suggest that such cases are of the most vital public interest.  It would be outrageous to discover that such a case had been subject to a RRO that not only concealed the identities of those involved, but further prohibited mention of there being such an order or such a case.

Imagine also the converse; it being just as possible for controversial and complex medical evidence to mislead the court's analysis where children are returned to, rather than removed from, their family.  Such a case might be where children are  removed from their parents due to allegations of dangerous inflicted injury, and controversial medical evidence is heard resulting in a court decision to reunite the family on the basis that, on the balance of probability, the allegations are not made out.  One of the children is subsequently dreadfully injured in such a way that demonstrates that the original concerns were justified and the reliance on the medical evidence was unfortunately mistaken. It will be just as important to learn from these tragic circumstances, where children are  mistakenly reunited with their family, and which must be of equivalent vital public interest.

One can see that there may be circumstances, limited in time, in which full public discussion of such cases might be prejudicial to ongoing criminal proceedings.  But if all parties and identifying features are satisfactorily anonymised, should that justify a RRO that  goes further and prohibits any mention whatsoever of such  cases and even of the RRO?  Following the powerful logic in Re J, both principle and pragmatism would suggest that question should be answered in the negative. 

But if such an order did exist, whether in a separation or a reunification case, how would we, practitioners, the Press, the public, even know?  Again both principle and pragmatism would suggest the importance of ensuring that such super-injunctions are not made, and that any which have been made are reviewed and amended;  otherwise such secrecy within this new transparency runs the risk of fundamentally undermining its laudable ambitions.

To read Part 1 of this article, please click here. To read Part 2, please click here.