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Transparency and vampire-ish creatures

Where we are following the President’s decision in Re J (A Child) 2013

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/2694.html

 

 (Or, as the Daily Mail have reported it, on their front page,  providing a link to the contentious video in question “Top Judge’s War on Secret Courts”   – I note with interest that their online version of the newspaper in amongst promoting this story heavily also speculates as to whether testicle-chomping piranhas are about to invade English rivers.  I didn’t read that article, but I suspect the answer is no)

 The broad sweep of the case appears to be that a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable. 

I suspect the hearts of the Local Authority sank when they realised that their application for an injunction was to be heard by the President, much as those people long ago who brought their case about nuisance and cricket balls from the local cricket club breaking their coldframes must have had a sinking feeling when Lord Denning strode into Court wearing his MCC tie.

The narrow issue in the case was whether the Court should grant an injunction preventing the publication in the Press or on the internet, of material and in particular a video showing the moments of removal of a baby from the parents by social workers and police officers.

 

As one can see from the Daily Mail coverage, the application was not entirely successful, and had pretty much the Streisand Effect   (the term given when an attempt to avoid bad publicity brings instead an avalanche of even more publicity).

 

Where the Court ended up was that an injunction until the child’s 18th birthday was made in these terms

 

“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;

 

 

(Leaving completely hanging the “whether directly or indirectly” element. Once the video appears on the website of a national newspaper, even if it pixellates the faces of the parents, you get to see an awful lot that would allow their neighbours to identify the parents and thus the child, particularly given that the date of birth of the child and home county  is now in the national  public domain.  I suspect that the ‘indirectly’ part of this is where the difficult semantic arguments are going to be had in future.  What if, for example, the father now puts on his Facebook page  or Twitter “Can’t believe I’m in the Daily Mail today!”   – is he indirectly identifying himself as the father in the case, and hence identifying the child?)

 The case is quite important, because it involves a campaign of publicity which the Court has effectively endorsed (short of anything which directly or indirectly identifies the child) NOT following a judgment which concludes that the parents criticisms and complaints are bourne out  (such as in Webster or Al Alas Wray) but in the midst of proceedings. The Court has not yet reached any decisions about the future of the child, or whether the parents complaints are justified.

I suspect the view of some of my regular commenters will be that this case is long overdue (and perhaps even that the restriction on names goes too far)

 Here is a particularly good soundbite from the parents facebook and video campaign cited in the judgment. It has a sort of Poe / Lovecraftian quality about it.

 

“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.”

 

 

The judgment sets out the details of the child’s birth and the parents efforts to publicise the injustice that they considered was occurring

 

  1. 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.
  1. 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.

 

As those who use the internet know, once something has been published on the internet, it can never be 100% scrubbed clean. If J’s name was published on the internet by UK Column Live, then even if it is now removed, it is discoverable by anyone who really wants to find it.

 

One might think that the audience for UK Column Live, a website run from Plymouth, campaigning hard about what is often called forced adoption, would be fairly limited (though undoubtedly much larger than my own), probably to fellow campaigners and parents who have felt aggrieved by their own experiences. The Daily Mail front page is a rather different matter – anyone who walks into a newsagent or supermarket today will see it.  Once the circulation of the story increases, the potential for someone identifying the child as a result increases exponentially.

  The judgment deals with some very interesting aspects – the first is really the case for transparency, an issue dear to the President’s heart and one which he has adjudicated on several times in the past. This is the furthest he has gone – he makes a number of points here with which I agree, when setting out how vital it is for the public to be able to know what is being done in its name.   (I have underlined what I consider to be the most important passage)

 

  1. The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.
  1. One is the right of the public to know, 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. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; London Borough of Barnet v Y and X [2006] 2 FLR 998, para [166].
  1. I have said this many times in the past but it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which family judges are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. When a family judge makes a placement order or an adoption order in relation to a twenty-year old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 or even 70 years, and the baby for what may be upwards of 80 or even 90 years. We must be vigilant to guard against the risks.
  1. This takes me on to the next point. 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.
  1. 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.

  1. 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.”

  1. This takes me on to the next point. It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases.
  1. In relation to the pragmatic realities, I repeat what I said in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497, para [133]:

“… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. 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, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise.”

  1. The family lawyer’s reaction to complaints of ‘secret justice’ tends to be that the charge is unfair, that it confuses a system which is private with one which is secret. This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in what Holmes J famously referred to as the “competition of the market”: Abrams v United States (1919) 250 US 616, 630. The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts. As I went on to say:

“… where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77:

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.”

  1. In short, the remedy is publicity, “more speech, not enforced silence.”
  1. The second matter is this. 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, “matters 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, Attorney–General v Harris [2001] 2 FLR 895, paras [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.
  1. This takes me to the third matter. It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish. As I explained in Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89]:

“A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise ‘responsible’ reporting whilst censoring what some are pleased to call ‘irresponsible’ reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895, at [373]), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised [in Re W (Wardship: Publication of Information) [1992] 1 FLR 99] a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public.”

As the Strasbourg court has repeatedly said, “journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation:” see, for example, Bergens Tidende v Norway (2001) 31 EHRR 16, para 49.

  1. Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language: see on all this Harris v Harris, Attorney–General v Harris [2001] 2 FLR 895, para [372] and Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89].
  1. It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory or because its dissemination involves the commission of a criminal offence. If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction. If a criminal offence has been committed, the appropriate course is the commencement of criminal proceedings. If it is suggested that publication should be restrained as involving a criminal offence, that is a matter for the Law Officers.
  1. The publicist – I speak generally, not of the present case – may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving. As Lord Oliver of Aylmerton robustly observed in Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248, 1320:

“the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved.”

The remedy, to repeat, is publicity for the truth which lies concealed behind the unfounded complaints, “more speech, not enforced silence.”

 

 

(I do think, however, that a fairly simple case for the distinction between privacy and secrecy can be drawn, in relation to preserving the anonymity of children’s identities. Although the vast majority of the public will never go anywhere near care proceedings or social services and thus the issues are outside their usual experience, most people have known someone who has divorced.  In a divorce case, most people would agree that it would be wrong for their neighbours or work colleagues to be able to read the lurid and scurrilous allegations set out in the divorce petition or to read the details of what the husband has paid out in his bank statements disclosed into the ancillary relief proceedings. They would understand that the public don’t get to see that because it is PRIVATE. )

 

 

The Judge goes on to make some comments about the Internet, and the massive changes it has made to the world of transparency.

 

  1. 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. It suffices for present purposes to make three points, building on what Tugendhat J said in MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB), para [11]. First, 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. No longer does the campaigner have to persuade a publisher, newspaper or broadcaster to disseminate the message. So there is very little editorial control. The consequence is that the internet is awash with material couched in the most exaggerated, extreme, offensive and often defamatory terms, much of which has only a tenuous connection with objectively verifiable truth. Second, material once placed on the internet remains there indefinitely and, because of powerful search engines, is easily accessible by anyone wanting to track it down. Third, internet providers are often located outside the jurisdiction, in countries where practical difficulties or principled objections stand in the way of enforcing orders of this court.
  1. All of this, it goes without saying, 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. For example, and despite the highly objectionable nature of much of what is on the internet, we must, at least in the forensic context with which I am here concerned, cleave to the fundamentally important principles referred to in paras [37]-[40] above.

 

 

 

The Judge then goes on to consider the ability of injunctions to control what is published in other countries.  I think that these passages will be particularly interesting to one of my regular commenters, whose website is hosted in Monaco

 

  1. But at the outset I make clear that there is, in principle, no objection to the English court in an appropriate case granting injunctive relief against a foreign-based internet website provider. Mr MacDonald has helpfully drawn my attention to XY v Facebook Ireland Limited [2012] NIQB 96, HL (A Minor) v Facebook Incorporated and others [2013] NIQB 25 and Tamiz v Google Inc , affirmed [2013] EWCA Civ 68, [2013] 1 WLR 2151. Other relevant cases are G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), [2010] EMLR 14, and Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753.
  1. I can likewise see absolutely no reason why the same principle should not apply equally in the case of what has come to be known as a contra mundum injunction. In my judgment there is, in principle, no objection to the English court in an appropriate case granting a contra mundum injunction against the world at large, including against foreign-based internet website providers.

 

 

(In short, a UK court CAN injunct a publisher, or internet site in another country not to publish material, but one then has to consider the ability of the Court to ENFORCE that injunction if it is breached. The Judge effectively raises the issues but says that resolution of them is for another day, but gives guidance on what the applicant would NEED to do if seeking an injunction to take effect against a person or organisation outside of the UK jurisdiction)

 

  1. I turn to the question of discretion. There is a tension here. On the one hand the starting point is that the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent’s likely disobedience to the order. Romer LJ put the point forcefully in Re Liddell (page 374):

“It has been further contended that even so this order can never be enforced against Mrs Liddell if she chooses to disobey it and that the sequestration of her income would not be for the benefit of the children. It is not the habit of this Court in considering whether or not it will make an order to contemplate the possibility that it will not be obeyed.”[2]

  1. On the other hand, and because equity does not act in vain, the court will not grant an injunction which is ineffectual or, to use the Latin, a mere brutum fulmen. As Kerr LJ put it in the passage from which I have already quoted, “our courts will not make orders which they cannot enforce.”
  1. What approach should the court adopt in coming to a decision as to how to exercise its discretion? This is a matter for another day, when there is fuller argument than was appropriate in the present case. Here I merely note that in Wookey Butler-Sloss LJ said that “there must be a real possibility that the order, if made, will be enforceable,” while in Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, para [35], Arden LJ said that “the court must be astute to see that there is a real prospect that something will be gained.”
  1. Drawing the threads together, the court is going to need evidence on two distinct matters. First, in relation to jurisdiction, the court will expect the applicant to put before the court evidence that service by email or letter or as the case may be is permitted by the law of the relevant foreign country: Bacon v Automattic Inc and others [2011] EWHC 1072 (QB), [2012] 1 WLR 753, para [53]. Second, in relation to discretion, the court will need evidence as to the applicable law and practice in the foreign court, evidence as to the nature of any proposed proceedings to be commenced in the foreign jurisdiction, and evidence as to whether the foreign court would be likely to enforce the injunction: compare Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499. Where the injunction, as here, engages freedom of speech, the evidence will also have to detail the foreign jurisdiction’s approach to such matters. Given the First Amendment, this is obviously particularly important in the case of the United States of America: cf the comments of His Honour Judge Parkes QC in Davison v Habeeb and others [2011] EWHC 3031 (QB), para [69].
  1. If what is being sought is an injunction against named defendants it will usually be appropriate for all this evidence to be available before the court is invited to grant the injunction. If, however, what is being sought is, as in the present case, an injunction in contra mundum form, it may be more appropriate to adopt the same procedure as with worldwide freezing (Mareva) orders: see Dadourian Group International Inc v Simms and others (Practice Note) [2006] EWCA Civ 399, [2006] 1 WLR 2499, and the form of freezing injunction in the Annex to CPR PD 25A.
  1. There the practice is to require the applicant to give the court an undertaking that “The Applicant will not without the permission of the court seek to enforce this order in any country outside England and Wales” and to include the following in the order:

“Persons outside England and Wales

(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court –

(a) the Respondent or his officer or agent appointed by power of attorney;

(b) any person who –

(i) is subject to the jurisdiction of this court;

(ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and

(iii) is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and

(c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.”

The detailed evidential investigation of foreign law and procedure can then be postponed until such time as the applicant seeks permission from the English court to enforce abroad.

 

On the final matter, that of whether publication of the video was lawful given that the baby’s face could be seen, the Judge said this :-

 

  1. There is, however, in my judgment, a crucial difference in a case such as this, where we are concerned with a baby a day old (though the same point will no doubt apply to somewhat older children), between restraining publication of the child’s name and restraining publication of visual images of the child. There are three reasons for this. First, the reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that 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. Third, in a case such as this, 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.
  1. Assessing these three factors together, there 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.

 

Leaving us with the situation where the Daily Mail and other newspapers, can run the story of this case on their front page, provide stills from the video and use their websites to link to the video PROVIDED that they do not give the child’s name.

 

Short of defamation actions (which are not at all easy to get off the ground), given that the injunction here did not restrict the publication of the details of social workers names and the Court ruled that

 

I simply fail to see how naming the local authority, the social workers, the local authority’s legal representative or the children’s guardian, or even all of them, can in any realistic way be said to make it “likely” that J will be identified, even indirectly. The risk is merely fanciful

 

This case is obviously a major shift for campaigners and a major headache for Local Authorities.

 

 

It is also very clear that in any application for an injunction or Reporting Restriction Order in future, this case is going to be cited as a compelling reason NOT to make such an order, and the evidence of harm or risk of harm to the child will need to be very clearly set out.

 

 

It is, to me, really interesting to compare this case with the Vicky Haigh judgments. In that case, Vicky Haigh ran the risk of prison for her internet campaigning and a friend of hers who was assisting her in the campaign DID actually go to prison (albeit briefly). That judgment was made by our last President, only two years ago, and related to a mother who was running a campaign on the internet about her court dispute, including making allegations which were unfounded about the father being a sexual risk to children.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2011/B16.html

 

One can’t help but wonder the extent to which these two cases differ so vastly in such a short space of time.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

24 responses

  1. Ashamed to be British

    One must consider that Vicky did not have the advantage of L J Munby’s recent order on her side at the time, but Mr R did.
    I would like to point out at this stage also, that Mr R did not say the things he is accused of, I remember the conversation clearly and also remember who made the comment of the vulture looming (which I feel was a clear, true and apt description of the image in front of us)

    I’m sure Mr R will be bringing it to the attention of L J Munby that the Local Authority in question, not only misled him into believing it was he who made this comment, (they had the screenshot) but they have also made a fool of our highest family court judge.

    He is entitled imo of course, to feel enraged that his honesty & transparency policy is already being manipulated to falsely imprison a man who is innocent of typing these words, whether L J Munby decides to punish those who have actually committed the criminal offense of misconduct, perjury and providing misleading evidence is entirely up to him, however one would hope that to bring such a serious case as imprisonment of the innocent to the courts, in order to silence him, relying on unfactual evidence, would not be dismissed entirely.

  2. Hopefully more local authorities will be named and shamed in this way. Those who flout procedure, and law, for their own ends. Those who steal children from loving families based on nothing more than some perceived future risk of harm. As though they hold crystal balls which enable them to see into the future.

  3. toni macleod aka stella

    well done Paul and Asha for getting there case this much publicity (hmmm would that be indirectly enough ……she says tongue in cheek 😉 )

    fantastic achievement for all campaigners in my opinion and you can bet your bottom dollar i will be using this more and more for numerous cases i am working on at least 6 alone this next month will be getting this judgement in their faces !

    MORE SPEECH NOT ENFORCED SILENCE is the most important piece that sticks in my mind especially given ………the RE M (a child) 26th June 2013 case risk of what the mother may say !!!!

    stella xx

  4. The door to transparency is only opening chink by chink. It is crucial that expert opinions, and the names of experts providing evidence should be made public. Having sat for six years hearing evidence on the GMC’s professional conduct committee, I have been deeply shocked at the quality of expert evidence commissioned by local authorities (for a handsome fee) unchallenged by parents’ solicitors, and which the family court judge was only too willing to believe. Compared with medical negligence cases, heard in open court, where expert evidence is hotly disputed by well-informed lawyers and opposing expert opinions, family courts have provided a risible standard of justice.
    More praise to Sir James Mumby. But why have other judges been so silent for so long, and so willing to commit decent parents to prison?
    Jean Robinson, President, Association for Improvements in the Maternity Services

    • Ashamed to be British

      Jean Robinson, I would love to talk to you. There is far more to all of this, watch this space is my advice 🙂

      Sista to toni macleod aka stella

    • Toni Macleod aka Stella

      sorry for my ignorance to your comment until now

      strange you may say this given that during numerous assessments and reports i have been told i have no mental health or personality disorders however late last year i had one shrink state i had a ‘mixed type personality disorder’ BUT more interestingly he has since when i requested his presence in court to cross examine him wrote not once but three times to the court and local authority themselves stating and i quote ” he was not happy he was forced to write the report under duress did not stand by anything that was written would not partake in proceedings and refused to allow his report be used’

      funny old one that perhaps some of them do have a conscience after all regardless of how many pretty pennies they are offered to sell their souls

      but i do agree GMC should be more closely monitoring their staff xx

  5. Pingback: Transparency and vampire-ish creatures | Childr...

  6. This is the Response from Staffordshire County Council unfortunately it was taken down within minutes of it being put up,

    Response to High Court ruling on county council injunction to protect child’s identity

    Posted on Friday 6th September 2013

    Earlier this year, Staffordshire County Council applied for an injunction to protect the identity of a child who had been taken into care, as the parents had named and posted footage of the child on the internet.

    We argued that the naming of Staffordshire County Council and the social worker involved may risk identification of the child, but the judge did not accept this posed a significant risk.

    He did however, rule in favour of the important substance of our case, which was that the identity of the child as it grows older and the child’s parents should not be published or broadcast, whether in the print or broadcast media or on any website

    It also clarifies that an injunction can be applied for against internationally hosted sites, such as Facebook, but enforcement would have to come from the court which has jurisdiction.

    It is critical to point out that in his ruling, Sir James Munby did not dispute the decision to take the child into care. Staffordshire County Council will only take a child into care as an absolute last resort, and to protect the safety and wellbeing of that child. We have to obtain a Care Order from the courts to enable us to do that.

    Philip Atkins, Leader of Staffordshire County Council said:

    “The safety and well-being of children in Staffordshire is our number one concern and the key part of our application was that this child should not be identified on the internet or in the media as it grows older and the judge absolutely agreed with this.

    “We make absolutely no apologies for acting in the interests of the children in our care and we would rather err on the side of caution where necessary.

    “We also asked to prevent the identification of staff and the authority, not to protect ourselves, but because we believed there was a risk it could identify the child.

    “While it is important for people to be able tell their “story” the interests and the welfare of children must remain the priority for local authorities, the media and websites.

    “It is important to explain that at no time was there any criticism from the judge of the county council for taking the child into care. We only take this course of action when there are significant concerns for the welfare of that child and to do that we must first provide evidence to the courts to obtain a care order from a judge.”

    What I would just like to adjudicate on here with regards to this response,
    Pres. Munby was NOT asked or requested to pass comment, rule, judge or other to the merits of the initial care proceedings, it would have been highly inappropriate of him if he had done so, a Judge can only determine matters at hand and on the application before him/her, that application was an against the world injunction, nothing more nothing less,

    Pres. Munby did not make criticisms on a whole, that would be different if he was asked through application to do so.

    For Staffordshire to pass comment like the ones they have, would draw further criticisms, “we” do not know if another Judge previously assigned to the case had passed comment on the merits,

    I can see why the response was possibly taken down.

  7. Councils are like the customer – alwaus right!

  8. Or even always!

  9. Ashamed to be British

    Jerry

    You possibly have the sharpest mind I have ever come across, it’s a pleasure to be an associate

  10. Munby LJ is spot on about the intrusive nature of the jurisdiction which family court judges exercise and the need for freedom for their decisions to be scruticinsed in the press or on blogs.

    However, it seems to me that the logical consequence of those observations should be that the parents’ right of freedom of expression, and the public interest in open discussion of the issues surrounding the forcible removal of children from their parents, over-ride the privacy interest of the child in not being identified (at any rate when one is dealing with babies).

    While I agree that such identification does infringe the child’s privacy, that seems the lesser evil. What real evidence is there that children are harmed by this? No-one is going to blame a baby for the deficiencies of its parents. On the other hand, denying an adult the right to describe and protest about the state forcibly removing their child from their care is a grave infringement of their right to freedom of expression.

    The analogy with divoce proceedings is not apt, because there is no public interest in the detail of those being revealed. In most cases, both parents do not want it, and the principles underlying the jurisdiction exercised in such cases is uncontroversial. The situation is completely different in family cases, where it is a highly controversial matter whether or in what circumstances the state should be entitled to remove a child from its parents.

    I think the law should be changed to allow identification of the child where the judge considers that the public interest outweighs the privacy interests of the child.

  11. Ashamed to be British

    However, as in the case of F(children) not published for some bizarre reason, the mother of L & R, (which I may write, as the court provided her with this identity themselves), was gagged AFTER the press has released several publications which identifies the mother fully! The public cannot unsee what they have seen, nor unread what they have read.
    This fact was agreed by the Judge, who directly told the Local Authority that the mother was not in control of the Internet, nor was she expected to take punishment for the action of others who had shared the press release, Quite rightly so.
    Not satisfied with this, the Local Authority then attempted to commit her to prison on three separate occasions, all unsuccessful, due to the attempts being made on invalid orders as admitted by the judge in case herself.
    We must conclude therefore, that there are no lengths certain local Authorities will go to, in order to silence a parent who wishes to campaign or bring attention to what they feel is a complete miscarriage of justice in removing his or her child(ren)

    • Toni Macleod aka Stella

      yes i know that case very very well (Mrs M the mkf says tongue in cheek ….. 😉 )

      the la’s have a habit of trying to use committal to prison on many folks as a threat 7 times in less than a month is my record ….although lincolnshire cc threatened in regards to the Re F (children) case etc and after an unexpected reply from me choose never to mention it again and to refuse to accept any my calls querying when i could have my committal hearing i will summarise my email below i cant for the life of me understand why they wouldnt allow me a committal hearing !?

      fantastic cant wait a full open public hearing to commit me to prison for exposing the abuse you have inflicted on a child in your care i shall of course invite the media and public as is my right and wil be free to say anything i want to during that hearing cant thank you enough can you let me know immediately so i can start handing out invitations

      or something very similar ….some la’s are just no fun 😉 lmfao xx

      • Ashamed to be British

        Hmmm … The case where the mother wasn’t allowed the MKF?? Isn’t that an Art 6 Breach to disallow the right to representation?!

      • I do wonder whether that case (which was of course decided by Wall LJ) would have the same outcome if it played out again. I suspect as long as the people involved stayed away from identifying the children, directly or indirectly, the fact that the proposed McK F was a campaigner against forced adoption might not be in the light of Re J a reason to refuse to permit her to be involved. Although they are both High Court authorities, Re J is of course the later one, so where there is a conflict or perceived conflict, Re J might well win out. As I said at the time, provided the McK F isn’t breaking the law, people ought to have the ability to go to whom they choose for assistance – a Judge might well think that they were misguided to do so, but parents ought to be able to make their own choice (provided the law about identifying children isn’t broken)

  12. I think, as time draws on, we will see greater transparency.

    In cases where a child is placed for adoption, I can’t see the risk in allowing the parents to self-identify. While I doubt that many dissatisfied parents would elect to give an impartial and accurate account of the shortcomings that led to their child being adopted, the judgments in these cases could be published to BAILII and an opportunity to read an alterative account. (Although whether much of the press would take it is perhaps debatable…)

    Similarly, I’ve never understood why experts cannot be named. I take the view that the naming of the social workers/guardian should be permitted (as should naming the legal representatives) except in exceptional circumstances, and the LA should have to make a case as to why naming the local authority might pose a risk to the child. I suspect that in the lifetime of my career this will become the norm.

    On the overarching issue, my view is that the question of transparency in the family courts is really one of policy, not legal principle, better suited to amendment by legislation than precedent. I’d happy to work with whatever system our elected politicians chose to give us—not least because I take the view that decisions by elected representatives carry a greater authority with the public

    But I, the primary proponents of increased transparency seem to often come from the “the family courts are corrupt and evil and so are all the people who work in them” brigade. As lawyers in the system, it’s easy to simply reject these people as fruitcakes—and of course we have a vested interest in doing so because we don’t accept their account. But we should be able to divorce the messenger and the message. I take the view that the justice dispensed in the family courts is of a perfectly satisfactory quality, and that the professionals who work in it do a good job in frequently difficult circumstances (but then I would, wouldn’t I). Having said that, my own sense of professional pride makes me want to ensure that the system that I respect is able to command public respect.

    If one flicks through the comments below the Daily Mail articles, there still seems to be a general confidence about the family courts. However, I think that in order to maintain this confidence we do need to see greater transparency and more discussion. Not least because, I believe, if the public were able to see more of the family justice system confidence in it would only increase.

    That’s not a very child-centred view though.

    • Hi Jim, thank you for the comment.

      I suspect, given RE J, that the days of anonymity for social workers and experts are either over or numbered. The judge specifically says that he considers the risk that the child would be identified through naming the social worker to be fanciful, and it is pretty clear that the President considers only the identification (directly or indirectly) is off the table at the moment. Everything else is fair game. He outright says at one point that the remedy for defamatory comments being published is defamation; which seems something of a green light for a parent who has no means (and is thus not worth sueing).

      I do see where the President is coming from, and think that if anonymity can be preserved, allowing the public to see behind the curtain would be helpful. If there is something rotten in the state of Denmark, public scrutiny will address is, and if all there is are many people crying wolf, the public can see that too. My concern is that anonymity, in an internet age is not so easy; and once the names are out there, there’s not much one can do about it. I am fairly sure that anyone with two hours to spare and curiosity to want to find out, can learn the names of the parents in Re J, and hence the name of the child.

      For example, as we well know from the super-injunctions case, a willing MP can name people in the Commons and the press are then free to report that thereafter. Or those who find the name with a little bit of digging can publicise it on Twitter, and nobody in the super-injunction case who tweeted the name ever had any consequences (I differentiate between this and Sally Bercow, since what she tweeted was defamatory/capable of being defamatory, rather than just naming someone she shouldn’t have done. *innocent face)

      (I too, would rather that Parliament had decided the issue of transparency rather than the President. I think there’s a very important debate to be had here, and one which didn’t really get covered in the Family Justice Review at all. I think that ship has sailed though.)

      The allowing the child to be named post adoption is an interesting one – the child of course gets a new name and identity, and probably can’t be identified through their old name by peers, neighbours, potential employers. I think there is a good case for that, and it is not an argument that I’ve seen tried in the past. (Of course, the Websters who were permitted to name themselves and give extensive media interviews, did have children who had been adopted, so it may have been touched on in that case)

  13. Toni Macleod aka Stella

    You’s seem to be forgetting the recent Re IA (a child) 2013 judgement where indeed the social worker WAS named and indeed SHAMED by the judge !!

    If memory serves me correctly paragraph 95 onwards bring a vast amount of ass whooping to that LA social worker 😉

    along the lines of poor quality, superficial and, most worryingly of all, did not reflect the key principles which underpin the workings of the family justice system in commenting on her work then went on to say …

    the judge found Ms Kanii to be quite extraordinarily uncompromising. Interested only in repeating her own view and seemingly unwilling to countenance she may have misjudged anyone. Overall, I would have to say she was quite arrogant. She delivered her evidence at breakneck pace and could not be persuaded to slow down notwithstanding several reminders. She referred to the mother throughout as “Mom” which seemed to me somewhat disrespectful. But the most important matter of all is that on any objective analysis, Ms Kanii simply made significant errors of judgment in her appraisal of the mother as well as the maternal grandmother.

    MRS JUSTICE PAUFFLEY we the parents salute you !!! lol

    http://www.bailii.org/ew/cases/EWHC/Fam/2013/2499.html for all of you that havent the good fortune to giggle at it so far !! xx

    • There have always been cases where social workers got named, but they historically were the exception rather than the norm. I suspect, following RE J, that as Jim suggests, the LA would actually need to produce evidence as to why naming the social worker would be contrary to the child’s interests (as opposed to the Judge deciding that there’s a legitimate public interest in naming the social worker). This could become rather significant when the President’s policy of publishing anonymised judgments in every case kicks into being. I think most professionals had envisaged that the anonymisation process would include professionals, I am less sure of that now. That would mean, potentially, that where a parent is allocated Mrs Flo Bod, or Mr Frank Barleymow as their social worker, they can go onto Baiili and research any other child protection judgments where that worker was the social worker.

      Re IA is indeed worth a read, I have blogged about it recently, and yes, that social worker took a huge pasting.

  14. Pingback: Cardiff Law School - Transparency in the family courts – online videos of children and social workers – Dr Julie Doughty

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