Anonymity and human interest stories. And Re K – part 3
There’s an interesting new judgment up on Bailli – Re K (A Child: Wardship: Publicity) 2013
I can’t write much about the case because of a tangential involvement, but it raises some interesting principles, particularly given where we are with the President’s consultation on transparency and publishing anonymised judgments as a matter of course. So, I’ll be discussing the issues in the case, rather than the merits of what the parents were arguing.
I wrote about the care proceedings here
And a later follow-up on the Court of Appeal decision that Wardship was the right answer for the child, not the Care Order made at first instance.
Keeping things very short, the parents in the case obtained a judgment that was very very critical of the Local Authority and the way that the Local Authority had treated them. The parents say that this has continued, even after those damning judgments. This was obviously something that the press were interested in, and because the judgment was reported and available on Bailli in an anonymised transcript, the press could legitimately report the facts of the case; PROVIDED that they did not name or take steps that would lead someone to be able to identify the true names of the people concerned.
So far so good. But of course, the Press are more interested in the human element of the story, and it becomes a more interesting story if they are able to report and the readers are able to read, how the mother and father in that case felt about their experiences – what was it like to be in that position, how did it feel, how did they have to struggle . The bare facts, without any human element to bring those bare facts to life is a less compelling story.
We are people, and we are interested in people, not merely bare facts. If you are Holly Willoughby (and if you are, I love your work, ma’am) then discussing this case on “This Morning” is a damn sight more interesting and compelling if the parents in the case are on the sofa next to you, or even in a video-link as silouhettes that you can interact with.
So, in this case, the parents were keen to campaign about their experiences, whilst preserving anonymity, and spread what many people might consider to be a vital two pronged message about family justice – 1. That professionals can get things badly wrong and 2. That by fighting your case properly you can nonetheless achieve justice through the courts. And even, the third – that doing that can be exhausting, draining, expensive and it takes many many months before the truth is reached.
If that can be done whilst preserving the anonymity of the child, that would be a good thing. These parents have a judgment setting out the facts and they in essence won their case and it is no longer an argument about how the Local Authority behaved but an established fact that they behaved badly towards these parents.
Now, in order to disseminate that message, the parents really need to be able to speak out, to give interviews, to give comments, to give statements. Can they do that, on the existing law, provided that they don’t identify the child ?
I’m going to use the analogy of Bruce Wayne and Batman here, to make it a bit easier to follow. Bruce Wayne can never go on television and say that he is Batman. Batman can never go on television and say that he is Bruce Wayne. But Batman can go on television and talk about what it is like to be Batman – PROVIDED he doesn’t say that he is Bruce Wayne. (I’m sorry if you don’t know who Bruce Wayne or Batman are, the analogy won’t help you at all. Think instead, that the parent wants to be on tv saying “I am Mr X, from this particular case about Mr X” but that he doesn’t want to say “I am [My real name] and I am also Mr X, from this particular case about Mr X”)
In this analogy, the published judgment is all about Batman, and talks about Batman and never mentions Bruce Wayne, the identity of Bruce Wayne is completely concealed in the judgment and cannot be disclosed.
So, can a parent go on television and say “I am the parent in this reported case, here’s my story – I AM BATMAN” as long as they do so as Batman, and don’t mention that they are Bruce Wayne? If they would be recognised from a visual image, they might have to be dressed as Batman (metaphorically – some element of disguise that stops them being readily identified)
That all seems to hinge on what is called the ‘rubric’ – that is effectively the basis on which the anonymised judgment is made public. In this case, it said this :-
‘The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.’
So, the parents in the case manifestly and plainly can’t go on television and say “Hello everyone, I am Bruce Wayne, and I am also Batman” ( I am the Father in the celebrated case of X, and my real name is whatevertherealnameis).
But can they go on television and say “I am the father in the celebrated case of X, where the father is referred to as Batman. I am Batman”
The parents sought clarification from the Court as to what was acceptable, of course not wanting to breach any confidentiality or commit contempt of Court. From the point of view of statutory law, them going on television as Batman, to talk about being Batman was fine.
The whole notion of the rubric is a bit perplexing. It of course isn’t a creature of statute, although it borrows the words and the concepts of those pieces of statute that provide a cloak of anonymity to the identity of the true names and identifying information about the parties and more importantly the child. So, is the rubric anything more than just words – does it have any effect in law?
This is what the President said in a reported case, which touched on what the legal standing of the rubric was :-
The legal effect of this rubric is uncertain. That is an issue that was considered by Munby J in Re B, X Council v B and Others  1 FLR 482. At para  he said:
‘Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.’
[I admire that chutzpah of identifying that there is an important issue and then without drawing breath deciding not to consider that issue]
That therefore, is that, for the time being. Where a judgment is published on the basis of a rubric, those wanting to make use of the information contained in the judgment are bound by it. (I wonder idly, whether once the Presidents changes come in, and judgments are routinely published, whether rubrics will still be issued – it will no longer be a situation of the Court generously agreeing to publish the judgment on the basis of a rubric, but a blanket assumption that all judgments would ordinarily be published)
But that still leave us, and more importantly, the parents, in doubt as to whether they can speak as Batman, and wearing Batman’s cloak of anonymity, providing they do nothing that lets slip that they are REALLY Bruce Wayne.
The LA in this case were arguing that the parents were prohibited from declaring that they were Batman, and that they could give interviews saying that they had been involved in A CASE but could not point towards them being the parents in THIS CASE (which of course would be an insanely dull interview)
. It is worth also reading the judgment for the issue of the child’s very strong views that publicity of any kind about her case was not something she wanted and considered would be damaging.
I have to say, that the judgment could be plainer towards the end, but it seems to me that the Judge comes down in support of the parents being able to declare that they were Batman (i.e that they were the parents in THIS CASE and could talk about THIS case, as long as they did so in that character, and not using their real identities or anything that might identify them)
· So far as concerns the actions of this local authority, in my earlier judgment I set out a catalogue of poor social work practice, of failure to engage appropriately with these parents, of failure to keep them informed, of arriving at hasty, ill-informed and flawed judgments about them and of marginalising them. Against that background, not only do the parents have a legitimate interest in telling their story, the public has a right to hear their story.
· The case also raises wider issues of equal if not greater importance, particularly when seen in the context of the current public debate about delays in adoption and the shortage of prospective adopters. As I noted earlier these wider issues include, for example, the importance of providing prospective adopters with full, detailed and relevant information about a child’s background before placing her for adoption, the level of post-adoption support available to adopters of children with complex needs and challenging behaviours, the vulnerability of late adoptions to placement breakdown, the significance and impact of RAD on a child’s behaviour and the therapeutic support required by such children. These are all issues which are of genuine and legitimate public interest.
· In A v Ward at para  Munby LJ made the point that “The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which…has to be brought into account as a very weighty factor in any application of the balancing exercise.” In this case I am in no doubt that the balance comes down in favour of allowing the parents to discuss the case with the media.
· Miss Moseley seeks to persuade me that I should attach conditions to any permission I grant to the parents. I have given that careful consideration. I have come to the conclusion that the rubric set out at the beginning of my earlier judgment is sufficient. That rubric makes it plain that in any media reporting K, her parents and her adoptive sisters may not be identified by name or location. The additional requirement that “in particular the anonymity of the children and the adult members of their family must be strictly preserved” means that the media must take particular care not to report information not contained in the published judgment if that information may lead to the identification of K and her parents.
There remain gray areas, and this will become more and more pressing once judgments are routinely available.
What if, whilst giving their interview in the cloak of Batman, a neighbour recognises their voice or their style of speech? What if that neighbour comes up to them and says “Hey, Bruce Wayne, I saw Batman being interviewed on tv today – that was you! You’re Batman”
Is it a breach of the rubric for the parent to say “Yes, you’re right, that was me, I am Batman?”
Is it a breach if the neighbour then tweets “Hey everyone, you know that bloke who was on This Morning – the Batman guy. He’s really my neighbour Bruce Wayne”?
[My last substantial law blog was about defamation, and here’s an interesting one, which ties into the next one I’m going to write. If I, or someone like me, writes about a person named as Mr X in a published judgment, and I say things about Mr X which go further than the judgment, those things are capable of being defamatory. But they are only defamatory if some of the readers know who Mr X is. Given that he is anonymous, am I only defaming the legal creature of Mr X, rather than the real human being who lies behind that pseudonym, whose true identity is not known to anyone? Can the real Mr X sue me for defamation? Is he breaching the rubric by sending me a solicitors letter saying “Our client Bruce Wayne, who is the Mr X you refer to in your article, is of the view that your words about him were defamatory” ? Is all hypothetical, since I don’t go further than the judgments, but I of course do have my own opinion when I join the dots of the judgments as to what sort of person Mr X might be, I just don’t voice it. I do wonder though, whether it is possible for me to defame Bruce Wayne by what I say about Mr X, when nobody knows that Bruce Wayne and Mr X are the same person]
Will add this comment, since I was asked by someone smart whether the Administration of Justice Act would kick in – the answer is that this only prevents someone discussing the facts of the case, and that prevention goes when the judge authorises publication of an anonymised transcript. And as we know, s97 exists only whilst the case is still running. That leaves only the “rubric” or a party seeking a Reporting Restriction Order as being the prohibition.
From the case, the Judge sums it all up well
“The court’s approach
There is now a considerable body of jurisprudence on the key statutory provisions (s 97(2) of the Children Act 1989, s 12 of the Administration of Justice Act 1960) and on the balancing of the competing interests protected by Art 8 and Art 10 of the European Convention.
So far as is material, s 97(2) of the Children Act 1989 provides that:
‘No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify –
(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child …’
The decision of the Court of Appeal in Clayton v Clayton  EWCA Civ 878,  Fam 83,  3 WLR 599,  1 FLR 11 makes it clear that the prohibition contained in s 97(2) comes to an end when the proceedings come to an end. In K’s case the care proceedings came to an end on 22 November 2012 when the Court of Appeal discharged the care order I had made on 27 July 2012. At that point the protection afforded by s.97(2) also came to an end. The Court of Appeal could have extended that protection. It didn’t.
In place of the care order, K was made a ward of court. The effect of that decision is that the only remaining automatic statutory restrictions on publication are those imposed by s 12 of the Administration of Justice Act 1960. So far as is material, s 12 provides that:
“(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –
(a) where the proceedings …
(i) relate to the exercise of the High Court with respect to minors…
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.”
Although s.12 imposes restrictions upon discussion of the facts and evidence relating to the proceedings, it does not prevent publication of the names of the parties, the children or the witnesses. That was made clear by Munby J (as he then was) in Re B (A Child) (Disclosure)  2 FLR 142.
The protection afforded by s.12 is without limit of time.
The court has the power to relax the restrictions imposed by s.12. That is what I did when placing on Bailii an anonymised version of my earlier judgment”
This is why I march my elephants across the Himalayas, it seems that the approach the parents in this matter want to take has been achieved previously, Re. Webster v Norfolk, and their terrible miscarriage of Justice, they were allowed to publish, they even sat on the sofa on This Morning
Should you not have used the Iron Man / Tony Stark analogy here