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Talk about a revolution: the internet and children proceedings

Jennifer Kotilaine, barrister of 3PB, reflects on the various ways in which the application of children law has adapted to the internet and social media and on the further adaptations that may lie ahead.

Jennifer Kotilaine, barrister, 3PB

Jennifer Kotilaine, barrister, 3PB 

'Over the last twenty years we have lived through a revolution. [ . . .] It is probably far too soon to be assessing the true implications of all this, and there is no need for me even to attempt to do so. [ . . .] [The internet] poses enormous challenges. The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies. We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles.' Munby P in Re J (A Child) [2013] EWHC 2694 (Fam) [41]-[43]

While the true implications of this revolution may not yet be known, twenty years is certainly a long enough time to begin to reflect on the various ways in which the internet has come to affect our lives.  Indeed, the revolution has now lasted long enough for the EU to announce recently that it will be carrying out a public consultation on the future of the internet.  In the narrow context of children proceedings, it is surely time for practitioners to take stock of both how the law has adapted to the internet and what further adaptations lie ahead.

The internet is undoubtedly a mixed blessing.  It is an unparalleled source of information which is available to anyone with an internet connection. As Munby P observes in Re J at [42]: 'the internet allows anyone, effectively at the click of a mouse, to publish whatever they wish to the entire world—or at least to everyone who has access to the internet.'   But the internet is not only about the sharing of information, it is also allows its users to communicate in a way that was unthinkable until recently.  Email is now 'old school', used by family lawyers, judges, and other dinosaurs.  People rely instead on text messaging or various social media platforms to contact each other using messages, photos, videos,  WhatsApp, Instagram, Twitter, SnapChat, Tumblr, Flickr, Grindr, Tinder, Blender: these are just a fraction of the various social media platforms available. Facebook alone had 1.32 billion daily active users and 2.01 billion monthly users in June 2017—this is more than the users of all other social media platforms combined.

The freedom of information and open communication that has contributed to the success of the internet revolution is very much at odds with the highly regulated and closed environment of the family court. Although conflict between parties is what brings matters to court, this conflict is contained and managed by case management and the court process. The messiness of human life and the very issues that may give rise to proceedings have to be explored by the family court in a contained way. Decisions are made on the basis of information which is necessarily limited: a few reports, some assessments, medical information, witness statements, oral evidence, submissions and other advocacy. Limits on this information are necessary so that matters may be determined and concluded.  However outside of court where people live their lives, information flows freely, communication is unlimited, human connections are unregulated.  There is inevitably a fundamental tension between how people actually live and how they will be judged in court. 

The internet can both aggravate and alleviate this tension. This article will consider the internet as a source of information both outside proceedings, ie as a platform for broadcasting information to the wider world, and also within the proceedings as evidence of behaviour, relationships and events. It will also consider the internet as a means of communication--particularly after proceedings have concluded. It will argue that while the court is well equipped to deal with issues relating to information (either as broadcasting or evidence) during the proceedings, it has not—in the context of care proceedings—adequately faced up to the residual issues relating to communication between family members in the months and years after proceedings have ended. This raises serious questions about the power of the court to determine and prospectively regulate family relationships.

As an information sharing tool, the internet is boundless. A piece of information can be broadcast via social media to other users of the same media who can then share this information with others.  This multiple, compounding effect of broadcasting is nearly impossible to manage. Indeed this is why some pieces of information (often videos but also text and photographs) can go 'viral': information can replicate itself potentially endlessly, far out of the control of the originator of the broadcast. 

For this reason it is no wonder that, in the context of family proceedings, the court may be anxious to limit information arising from these proceedings from ending up in the public domain where it can no longer be controlled and where it may well harm some, at least, of the parties involved, particularly (but not exclusively) the subject children.  However there is a balance that must be struck between the need to protect the subject children and the need to ensure some degree of transparency in family proceedings—transparency which can be achieved on the internet by the click of a button.

Re J is the leading case on reporting restrictions and the internet in care proceedings. It was an application by a local authority for a contra mundum injunction in respect of a child to have effect until the child turned 18. In his judgment Munby P discusses (among many other things) the importance of transparency in the family proceedings, commenting on

'the need for the public to be confronted with what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases.  Such cases, by definition, involve interference, intrusion by the state by local authorities and by the court, into family life. In this context the arguments in favour of publicity—in favour of openness, public scrutiny and public accountability –are particularly compelling.' [27] [ .  . .] The workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 474 'matter of public interest which can and should be discussed publicly.' Many of the issues litigated in the family justice system require open and public debate in the media. I repeat what I said in Harris v Harris, A-G v Harris [2001] 2 FLR 895, para [360] – [389], about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system. And the same goes, of course, for criticism of local authorities and others. [36]'

In Re J, a balance was struck between the public interest in the state's interference with family life and the welfare interest of J, the subject child, by prohibiting the naming of the subject child while allowing the publication of images of the child.  The said images included a video of J being removed from the parents on an Emergency Protection Order.  However since the child was one day old at the time of removal, it was held that J was not easily identified on the basis that all babies look pretty much the same 'unless you are the parent' [para 81]. Furthermore, internet searches are carried out by name rather than image so 'unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual.' [para 81]

Munby J's approach to this case shows how the law has adapted in the face of technology. His reasoning centres around the identifiability of the subject child rather than the fact that the recording is made and distributed without the consent of the child. He does not view the making and posting of the video as a prima facie wrong.  In occupying himself with issues of the public interest and the parents' freedom to express their grievances against the State, he inevitably reduces the child to a piece of data.  As long as the data is not readily identifiable or searchable, it is in the public interest for the data to be published for all to see.  As he says at para 81, 'although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.'

The right to freedom of expression, albeit limited expression, in family law proceedings is spelled out in the very recent case of Southend BC v O & W  (Online Petition) [2017] EWHC 1949 (Fam).  This case explores Article 8 and 10 rights in the context of an internet petition on the website which is addressed to the Government and Parliament. In this case, care proceedings had already concluded with care and placement orders being made to the local authority.  The parents put up a petition on  and, after an application for injunctive relief made by the local authority, agreed to an order prohibiting them from publishing information about the care proceedings and the placement proceedings on any social media sites, including Facebook. The parents also agreed to remove material that had already been published on Facebook and to remove the pictures, names and ages of the children that had been published on their petition. However they did not agree to remove their amended petition which read as follows:

'In May 2017 family court granted, a full care order and placement order on all 4 of my beautiful children, despite me having solid evidence and this case was heard without evidence of emotional harm, neglect so I am applying to appeal to higher court so I can put evidence before a judge to prove to them i have never neglected my children , nor would i ever put them at risk of any sort of harm (i love my children with all my heart <3 my focus on life is them) Having my children is my greatest achievement, they are my saviour they switched my focus from the outside to the inside. My children are gifts, they remind me of what's important. please help by signing this petition to reunite my family.<3'

MacDonald J agreed that the amended petition could remain on the website, notwithstanding the fact that the mother was identified and some of the signatories to the petition had included the first names of the children in their comments.  He held that the Article 10 right of the parents to freedom of expression outweighed the Article 8 right of the children to respect their private and family life.  In his balancing exercise, he spoke of 'the importance of parents who are the subject of state intervention being able to express their views about [it], the constitutional importance of the right to petition Parliament and the Government for redress with respect to a personal grievance and the importance of the ability of a parent to make clear who is speaking out or seeking to petition for redress' and determined that 'it cannot be said that in this case that compelling the parents to take down their online petition directed at Parliament and Government, or compelling them to remove from the petition the mother's name and the responses that utilise the forenames of the children represents a proportionate response to the risk to the psychological integrity, personal development, development of social relationships and physical and social identity of the children present by the limited amount of information concerning the children that the petition now contains.' [para 62]

It must be noted that in this case, contrary to fundamental legal principles, the local authority had not adduced any 'cogent evidence' [para 49, italics his] about how these specific children would be negatively affected by the petition in its current form remaining on the internet.  The court did not therefore have evidence on which to determine that there was a justification for interfering with the parents' Article 10 rights.  He said that 'Whilst it is, of course, possible to formulate a number of common-sense assumptions with respect to the potential impact on each of the children of persons accessing the online petition, the reality is that the justifications on which the local authority seeks to rely [ . . .] are poorly evidenced and largely speculative in nature.' [para 49, italics his]

In a further departure from basic legal principles, the local authority had contacted some of the maternal family (who were among the 160 signatories to the petition) by letter in terms that they were bound by the earlier order prohibiting the parents from naming the children in the petition.  The allocated social worker, having first checked with the legal department, had sent a letter to various members of the maternal family telling them that the earlier order prohibited them from signing the petition. MacDonald J said that the action of the legal department in this regard 'are to be strongly deprecated. It is a matter of grave concern that a local authority would seek to pass off an order of this court as something that it is not.' [para 8]

The ease of publishing on the internet emboldens parents while unnerving the State. Faced with parents who seek to exercise their Article 10 rights for potentially all the world to see, local authorities must be careful not to become so defensive (or arrogant) that they forget fundamental legal principles. Evidence, not merely assumption or speculation, is required in order to justify an interference with a parent's Article 10 right. And injunctive relief against the parents does not extend to non-parties who are exercising their own rights to sign a petition and comment, even if some comments contain the name of child. At the conclusion of his judgment, MacDonald J relies on Re J saying that 'in the face of challenges presented by the Internet we cannot simply abandon basic legal principles' and observing that 'in a mature family justice system the weight afforded to the right to freedom of expression must be recognised and engaged with.' [para 64]

Evidentially, the internet and social media in particular can be very helpful in proceedings. Parties can and indeed do rely on information contained in social media posts as evidence of behaviour or relationships.  People use social media frequently—indeed, sometimes compulsively—and over a long period of time, normally without ever considering that this information could ever be used in the context of court proceedings. Facebook allows not only for communication through words but also captures information through photographs and videos.  Although privacy settings are available (and indeed recommended), they are often not used or, if they are, the information is available to those in a closed group of 'friends', some of whom may not be so friendly after all once proceedings are issued.  Information from social media can affect the outcome of cases—either due to the substance of what is being communicated or due the fact that there has been social media activity at all.  Although there are many social media platforms, the reported cases (below) all focus on evidence from Facebook.

As practitioners are already aware, the substance of Facebook exchanges can be highly significant in children proceedings insofar as they are evidence of the contemporaneous motivation and understanding of the parties. In Re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam), messages between the parents allowed the court to determine the motivation of the parties, finding that 'it was the father who tried to keep the child's needs in focus and considered important topics such as educational provision and opportunities for the child to socialise.' [para 26] In Re V (2015, unreported), 'voluminous' Facebook records of a first respondent mother were relied on by a local authority to establish her understanding when moving from her native Lithuania to the UK where it was clear that from the Facebook messages that her children were at risk of sexual abuse. HHJ Simon Wood said of the Facebook exchanges that 'any protective parent would, or should, have seen the danger lurking therein, the prurient and suggestive enquiries and proposals which went beyond normal sexual activity even between adults who were on the lookout for it. [. . .] it leads to the gravest concern as to what the mother was thinking in taking up offers of help from such people.' [para 122]

A more legally determinative finding was made on the basis of messages between parents in Re D (A Child) (Habitual Residence: Consent and Acquiescence) [2015] EWHC 1562. Here the court found that the mother had in her messages to the father acquiesced, in the sense given by the guidance of Lord Browne-Wilkinson in Re H (Abduction: Acquiescence) [1998] AC 72, to the child's continued retention in England by his father for the purposes of art 13(a) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. [para 71]

Apart from the content of Facebook postings, Facebook activity in itself has also been evidentially relevant in children proceedings in establishing the priorities of a party. In Re P (A Child) (Care Proceedings: Appeal) [2016] EWCA Civ 3, it was held that mother's social media activity whilst looking after the child in a mother and baby foster placement was sufficient evidence for the judge to conclude that she was living a separate life from her parenting responsibilities and that this, coupled with the backdrop of chronic neglect of older siblings, was a significant risk to P who was made the subject of care and placement orders. [paras 54-55]

Finally, apart from evidence of motivation, understanding, and priorities, Facebook and other social media can be a useful tool for establishing the existence (if not location) of parents who otherwise cannot be found. In Re  T [2017] EWFC 19, it emerged at a final hearing of an adoption application that no notice of the adoption proceedings was ever issued to the child's birth mother contrary to s 141 of the Adoption and Children Act 2002.  Two days before the final hearing, the father's partner managed by way of 'a very simple search' to identify the child's mother on Facebook and speak to her on the telephone. The mother had had no idea about the proceedings, having never been contacted either by the local authority or the guardian.  Having clarified the position in respect of social workers and CAFCASS officers, Holman J said that 'in the modern era, Facebook may well be a route to somebody such as a birth parent whose whereabouts are unknown and who requires to be served with notice of adoption proceedings. I do not for one moment suggest that Facebook should be the first method used, but it does seem to be a useful tool in the armoury which can certainly be resorted to long before a conclusion is reached that it is impossible to locate the whereabouts of birth parent.' [para 21]

Until relatively recently, one could be certain that once a child was removed from a family (either by way of foster care or adoption) contact with the original family could be limited. However the internet revolution has irrevocably changed such fundamental assumptions.  Now, through a little googling or searching on social media, it is possible for a child to remain in or re-establish communication with family members either through her own means or in response to approaches from family.  Although at the conclusion of children proceedings, contact may be ordered at a particular level and frequency, either direct or indirect, supervised or unsupervised, the reality is that these orders can easily be subverted by the internet with potentially devastating effects on children and their placements as vividly set out by Mrs Justice Eleanor King (as she then was) in her lecture 'May I be your Facebook Friend? Life Stories and Social Media' on 27 June 2013.

Communication via social media can leap over any court sanctioned arrangements in a way that cannot easily be monitored by carers, if at all.  Such communication can be advanced by the actions of a family member who a child does not expect or indeed want to hear from as in Re B (A Child) (Foster Placement: Restraining Orders) [2013] EWCA Civ 166 where a Facebook friend request was made of a child in care by her father.  In describing the effect on the child of the request McFarlane LJ relied on her affidavit to the court which explains 'how she wanted to delete the message as soon as she saw it and achieved deletion of it before she told the foster carer or the social worker. [ . . ] There is a reference to her skin crawling which has a convincing tone about it.' [paras 8, 16] 

A longitudinal (18 year) study at the University of East Anglia on Contact After Adoption has considered examples of social media being used to make contact after adoption.  It identified three purposes of such contact: to gain information about another party, to communicate with another party, to search for and seek a meeting with another party. It found that in some cases, contact with birth family via social media could be beneficial where children have the support of their adoptive parents.  Such contact, whether initiated by the child or the birth family, could also be very unhelpful when the child or young person was unprepared and therefore ill equipped to cope. Being contacted 'out of the blue' on social media was difficult for both the adopted child and also the birth family and could be destabilising. But where a child is prepared and supported, and where some limited contact is already in place, communication by social media could be a useful 'add on' to existing arrangements.

The Children and Families Act 2014 inserted ss 51A and B in the Adoption and Children Act 2002 to deal with post adoption contact. Section 51A(2) allows the court to prohibit contact with a child post adoption although it is difficult to see how any such prohibition can be meaningfully enforced in this age of social media.  The Contact After Adoption study makes reference to 'unmet needs' of some adopted children and birth families and those being the impetus for communication over social media.  It is likely that there are similar 'unmet needs' for children in foster care who maintain links with their family through limited direct contact. These needs may well continue to be unmet despite court orders and may drive children and family members to reach out to each other in ways that are imperceptible to carers and professionals. 

Judges and professionals therefore need to do more to explicitly consider the possibility and indeed likelihood of communication via social media particularly in cases of older children who already know who their parents and other relatives are. In Re G (A Child) [2014] EWCA Civ 1173, McFarlane LJ held that the first instance judge had failed to carry out an adequate evaluation of the potential of unstructured social media contact between a 10 year old girl [E] in long term foster care and her parents and older sister in the UK. Direct contact with her UK relatives had been refused in favour of E maintaining contact with younger siblings who were being adopted abroad. At para 34 he said that 'the potential for unstructured contact via social media was insufficiently assessed given its potential to cut across the embargo on contact with the natural family. The assertion that the adopters could "manage the risk" (coming as it did from the guardian's report of what the adoption social worker had said to her) was an insufficient basis upon which to understand what would occur in such a situation.'

The ubiquitousness of social media as an easy means of communication is leading some to question whether the concept of adoption as giving a child a 'forever family' can be maintained, particularly for older children who already have knowledge and understanding of their birth family.   In his lecture Holding the risk: The balance between child protection and the right to family life (9 March 2017) McFarlane LJ questions (without answering) whether adoption is the best option for older children where it is 'likely that that consequences of their earlier experience will be played out as they come to terms with the sense of their own identity whilst traversing the choppy waters of adolescence in the adoptive home.  The difficulties facing adopter and adopted children in this regard have been made significantly more difficult in recent years with the ever-increasing facility to trace and make contact (in an uncontrolled way) with individuals over the internet or via social media. [ . . .] The challenges [ . . .] are likely to increase and become yet more sophisticated as the irreversible march of technological developments in this area of our lives continues.'   He says that the 'erosion in the hitherto impermeable seal around the adoptive placement created by social media' contributes to the question of whether our current model of adoption is indeed one that can be sustained for older children who may not have the benefit of adequate support once in placement—either for themselves or for their adopters.  McFarlane LJ is clear that it is not for judges or lawyers to provide answers to these questions, and that answers can come only from research.  However, in the circumstances it is submitted that it seems appropriate for all involved in children proceedings to continue to raise these questions, be they professionals, lawyers, or judges.

So, after 20 years, where has the internet 'revolution' taken children proceedings? The internet has made it easier for parents to exercise their Article 10 rights in making public their views on the State's interference with their private lives, with certain limitations on the identification of the relevant child(ren). It has also made it easier for courts to determine motivation, intention and level of understanding of the parties through examination of social media (read here: Facebook) evidence.  Facebook can even be a tool for locating parties to proceedings who may not otherwise be found.  In these contexts, the basic legal principles stay the same: contra mundum injunctive relief is available in certain circumstances and not in others, derogations from Art 10 rights must be justified by proper evidence rather than speculation or assumption, Facebook evidence can be relied on and tested in court, etc.  However in the context of social media communication post public law proceedings, certain legal principles may begin to give way. These include the court's power to limit contact in the best interests of child and the ability of adoption to create a 'forever family', particularly for an older child, by permanently severing links with the birth family. Twenty years on from the advent of the internet revolution, McFarlane LJ in his lecture observes that the 'irreversible march' of social media in our lives continues apace.  It will be interesting to see how the law relating to children develops and adapts in response over the next 20 years as the revolution continues.