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Transparency Guidance

You probably recall that the President of the Family Division is rather keen on transparency – he’s been saying so for many many years, he’s certainly no Johnny-come-lately on the issue, and was saying so for a long time as pretty much a lone voice.

He called for views on a proposal to publish every judgment in care proceedings decided by Circuit judges or above, and all Court of Protection judgments back in October, and those views have now been considered and the plan is going ahead.

In fact, from 3rd February, the overwhelming majority of judgments in care proceedings will be published on Bailii. These will be anonymised (by the poor saps who work for local authority legal departments, with the anonymising then being approved by the judge) and will be available for anyone who wants to read them.

I think that in principle this is a good thing – as the President has said many times, in the debate between those within the family justice system who say that confidentiality and respecting the child’s privacy is the point and those outside who say “secret courts – if there’s nothing to hide, why is it secret”  – the transparency camp have clearly won.

If we are to move the debate about family justice beyond “secret court, what have you got to hide” and into proper areas of where the family justice system is getting it wrong, and where it is getting it right, and what can be done differently, then publishing judgments is an idea whose time has come.

I am absolutely in favour of transparency and the public being able to see what is being done by the State in their name. Only by doing that can we properly test the system and to recalibrate if things are taking place that don’t have public backing, that are being done wrong. Every wrong decision in family justice is a huge tragedy, but at present we have very limited ability to see whether wrong decisions are a rarity or endemic.

 

Pink Tape writes very efficiently about the issue and the guidance here

 http://pinktape.co.uk/rants/and-suddenly-it-all-becomes-clear/

There are things that I worry about – not least being that we are going to go very fast from announcing it to doing it in 2 weeks, that the previously expressed views from children don’t seem to have played much of a part, how we prevent jurors from finding those judgments and contaminating the criminal trial,  that there doesn’t seem much in the way of safeguards about privacy (the President is of the view that as long as the name doesn’t get out, privacy of the child is preserved – I am slightly more cautious about the ability of the general public, journalists and determined people on the internet to put known facts together to be able to link Mr X with a genuine name), and a lack of clarity about the boundaries.

It is the latter one which troubles me, because I really think there are now gray areas – once the judgment is a public document, how direct does one have to be in highlighting that the person in that public document is the same as this very real person here.

For example, if what is currently forbidden is the parent (or anyone else) directly or indirectly identifying that the child in  Re B (Parents who snort Polyfilla) 2014 is called “Timmy Grout” but that publishing the judgment or facts in the judgment is fine, are any of these actions going to get people in trouble?

 

1. Pam Grout, the mother of Timmy, posts a link to the judgment on facebook, and makes no comment about it.

2. People add comments under the link saying “you were robbed Pam”

3. A member of Pam’s extended family posts a link to the judgment and says “Don’t talk to me about British justice”

4.A campaigner about family justice who lives abroad, say a resident of the Vatican posts a link on their website, hosted abroad, saying “Pam Grout was betrayed by the State, read the case here and see how the Judge stitched her up”

5. People living in England post links to that website

6. Pam Grout posts a link to the website on facebook, but with no comment, or someone posts a link on her facebook wall and she ticks “Like”

7. A person on Twitter says “This judgment LINK is awful. My friend Pam Trout had an awful experience in Court”

8. A newspaper runs a story about the case, quoting the judgment. In the comments section, someone says “Pam Grout is not a bad person”

9. A prominent tweeter posts “Why is Pam Grout trending? #innocent face”

10. An MP stands up in Parliament and says “Pam Grout is the mother in the well known miscarriage of justice that the Courts call Re B (Parents who snort polyfilla) 2014

11. Every newspaper in the land reports what the MP has said.

 

12. Or how about this – one of the children is 14 and tweets “I am the brother of  Timmy Grout, the Polyfilla boy” and that goes viral?  

Are any of these actually breaches, would there be sanctions? Or are all of these things okay, and the only breach would be Pam Grout saying in terms “My son Timmy was taken off me by social services”

If you are advising Pam, how confident are you in telling her which of those twelve things are breaches and which are not?

 

It may well be that we end up having a debate about whether, once these anonymised judgments are out there, that we are playing a semantic game in saying that the child is not identified, given that they clearly become IDENTIFIABLE by what’s already a simple process of putting two or three facts together.

If you live in Bon Temps, and are one of six children, and you are all taken into care, and children in your class know that this has happened to you, but they only know the lurid details if you chose to tell them; then it isn’t that hard for anyone who wants to know more to find it.   Because a  judgment is published about six children who were taken into care in Bon Temps at about the right time and the ages and genders of the siblings match up, it isn’t rocket science for people who know a few things about you – perhaps your friends, perhaps people at school who have taken an unhealthy interest in you or who dislike you, to be able to read a judgment about you online and learn about your family life, allegations that have been made – perhaps that you still wet the bed, maybe you self-harmed, perhaps you have been confused about your sexuality,  maybe your dad has mental health problems, maybe your mum smokes crack, perhaps that your uncle molested you?

Maybe that won’t just be in your childhood – perhaps a prospective love interest will search about you, perhaps a future employer, perhaps future work colleagues.  If the link between Timmy Grout and Polyfilla boy ever gets out into the public domain, that information will be there for years to come, capable of being found by anyone who wants to know a bit more about Timmy. 

Perhaps when we are all wearing Google-Glass or whatever supersedes it in five years time, every time anyone sees Timmy Grout in the street they will be alerted to who he is and what happened to him as a child and be able to read all about it.  {Google Glass is here now, and facial recognition software that sees a face and can take you to any websites they are mentioned on is already here – this sort of thing is going to be commonplace in the near future}

It may be that we reach a point where society says that the interests of transparency mean that anonymity can’t be totally preserved, and that if children’s identities are found out and that people who are not invited by them to know about their lives can find out the most intimate details themselves then that is a price worth paying for opening up our family justice system and ensuring that there are no secrets.  Maybe we will eventually get rid of the bar on identification completely.  

There are many people who think that this will be a good thing. Me, I’m mostly interested in what Timmy has to say about it.

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About suesspiciousminds

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

20 responses

  1. Ashamed to be British

    You’re making very valid points, but there cannot be a balance that gives us a ‘one size fits all’ with regards to the children, they are collaterol damage either way dont you think?
    What affects one child wont affect another
    I also think this is a very positive step forward, but no doubt for different reasons, I have noticed reluctance to committ parents to prison in order to prevent them speaking out against injustice within the family court system since their sentencing must be published on Baillii, hopefully this ruling will ensure social workers, expert witnesses and judges will be a little more careful on accepting lies, misleading evidence and falsified records knowing it’s open to public scrutiny

    This, for me is a major start to the beginning of the end of ‘child snatching’

    • Daylight is the best disinfectant and what better why to show justice being done. If something goes wrong there might even be accountability.

    • Yes, it is undoubtedly a difficult one to get right – I am in favour of transparency. And probably for exactly the same reason as you – if children are being removed for weak reasons and Courts aren’t in some areas properly putting the evidence to the test, it is absolutely right that this is exposed. Equally, we know from the past that it is easy for an issue to become “flavour of the month” and for actions to be taken when that issue arises which aren’t properly justified (for example, if anyone needs them – the Cleveland situation where a lone medic was able to misdiagnose sexual abuse, Orkney Satanic abuse allegations, the Roy Meadow probability calculations, the recent issues with Rochdale and grooming of teenage girls, many would add the Trinity of Shaking injuries to that list)

      But I think that it works very differently in London, where people can be anonymous, than it will in small towns and villages. Let’s be honest, if someone in your street has four children and then those children no longer live there, you can probably guess that the children are in care, but up until February, you would have had no way of finding out the circumstances and allegations. After February, if you live in a relatively small area, and that happens to you, anyone in your street that wants to put in an hour or two of work can read a judgment all about your family and know all of what can often be very painful information. And you know how people are – even if those allegations are disproved, if they happen to be about your partner being accused of sexual risk to children, others in your street knowing about the allegations is going to make a difference.

      I would have trialled it first with just North East, South West, Midlands – it is the geographic narrowing down that enables individual families to be identified with very little effort – if you know that someone local to you has been in Court, you can work out which case is about them (as each case will identify number of children, gender of children and ages, and you know the year of the case)

      The counter argument to that is of course, that in seeing whether mistakes are being made, knowing whether there are certain problem areas or indeed bad performance by specific local authorities comes into it. I would certainly say that if a judgment is critical of a Local Authority, it is right that that authority be identified.

      I am still unclear, finally, and this probably warrants its own blog – if the mum, dad and child are all of the view that they don’t want the judgment published because even a small risk of local people working out who they are is not worth taking, and the case raises no issues of wider public interest and there is no request by the press – how is the Court to deal with that? Does the Court just publish in the teeth of opposition from all of the real people concerned? Where the heck is article 8 in all of that?

      • Probably where ever articles 5, 6,10, 12, 13, 14, 17 are laying around.

      • Ashamed to be British

        Indeed, yes that is something to ponder and I’d agree it could be a whole new blog. I see the reasoning behind your post being that I live in what can only be described as a large hamlet.

        Of course, the only way I can see that this is fairly opened to public scrutiny, is to expose the LA’s name and a summary of misfeasance, misconduct and contempt (read lies) .

        If Sir Munby wants true transparency, then there must be strict criminal consequence for anyone providing false evidence that may lead to a different decision being made, as set out in the government guidelines regarding child protection plans, they could be placed within the publicised judgement for the public to follow up on … just a thought, but again I do think it would be worthy of a new blog and/or debate

  2. On the question of “How we prevent jurors from finding those judgments and contaminating the criminal trial..” and your last two paragraphs, I wonder if a reasonable analogy is the publishing of income tax information. That’s normal and not an issue in Norway but gives us a fit of the vapours here. It’s a question of what the norms are and of course now they are changing.

    You know, I’m sure, the well known psychological suppression theory, whereby someone is told “Don’t think of a polar bear” and then of course that’s all they can think about?
    http://www.psychologytoday.com/blog/mental-mishaps/201009/dont-think-about-it

    Surely the better way in a criminal trial would be to invite the jury to think about it, explain it and then show them why it isn’t relevant. Remember Rodney King?

  3. Children are being advertised openly by adoption agencies and branded about like a cattle market in adoption parties. These children are being identified by distraught parents and relatives.

    1/ Tim Grout may not have used ‘Polyfilla’. It may well be a false allegation by the social worker. Tim Grout may be happy to see his case in the public domain as the court allowed him to be branded with all sorts to destroy him for child removal purposes.

    2-11 For Tim Grout it may not bring his children back but friends and relatives would KNOW he did not snort ‘Pollyfilla’ but he didnt have a chance to prove his case in the secret courts or gain the interest to show his innocence due to the fact no social worker ever gets prosecuted for contempt or perjury. Anyway the LA hired a psychologist etc to back up their lies and create even more. When Tim Grout complained to the police they said they cannot arrest social workers.

  4. Same as Grump. He may not have been molested by his uncle, it may have got on his medical records by a corrupt employee or by sheer gossip and a social worker wanting to believe it or add to his/her case. But no-one listened to Grump in the secret courts,
    Other stories may have been spread around because the dad to Grump was anti-drugs and it upset some low level ‘plasterers’ who rung social services to cause him grief and trouble.
    Mini Grump may have wet the bed in care right into adulthood, but stopped when out of care and back with his family. It may be that Mini Grump suffered physical and emotional abuse in care and not only wet the bed but pooed himself too. Mini Grump would not care about it going public because they have now taken his children too on the false care order made when he was a child.
    Ex care kids often lose their children they are easy targets for the corrupt and negligent social services So the family of Grumps are very happy with Judge Mumby for allowing the case to go into the public domain. Everyone that knows the Grumps know the Judgement was a bad one based on false evidence,
    Its been a long time waiting to see the light from the dark shadows of the family courts.
    Grump family and all friends are hoping that once cases are in the public domain it will bring many damaged families some justice.

  5. My questions now are.
    1/ Will these judgements in the public domain lead to social workers being prosecuted for contempt and perjury.
    2/ Will the public and media allow the families some justice
    3/ Will the publishing of judgements into the public domain does it
    mean the wrongly judged parents have a better chance of seeking deframmation charges against those who committed the crimes against them
    4/ Or has the new legislation stitched that one up to the point that the LAs can lie about people and even have it published in the public domain.
    (Noticed that the deframmation law has been changed to ‘severe damage caused only’.
    So who decides what is defined as ‘severe damage’.

    • Hi Sheila, there’s absolutely no reason now why a Court who found that a social worker had lied in evidence couldn’t make a referral to the Attorney General for the offence of perjury. Nothing whatsoever prevents that, or gives a social worker any more protection than any other witness in court proceedings. Prosecutions for perjury generally are pretty rare, and even more so in the civil courts – if you think about what a finding in a civil court that a witness has lied means, it is that the Judge decides it is “more likely than not” that they lied, whereas the test for obtaining a conviction is in effect that there is no reasonable doubt. Having said that, I think that any professional who gave evidence and a Judge found that they had LIED (rather than were mistaken, or that the Judge disagrees with their opinion) would find themselves in quite some difficulty professionally. I would expect that disciplinary proceedings would be taken, and although I am not an employment lawyer, I would suspect that given that part of a role of a social worker is giving evidence that to lie in Court would be potentially gross misconduct.

      It is actually pretty rare for a Judge to baldy state that someone is lying, rather than that where there is a conflict in the evidence of person A and person B, person B’s account is the one accepted by the Court because of…

      I’ve talked about defamation before on the blog, and you cannot claim for defamation for things said in Court, or said to your lawyer in preparation for Court. That is quite well illustrated by the recent criminal trial where an outside observer might well think that two famous people were able to use that protection to say things about the other in their acrimonious separation that if they had said outside Court might well have been defamatory.

      • Ashamed to be British

        Unfortunately not. I know of several (100’s) of cases where blatant lies can be proven (mine included, it has taken me 6 years and a lot of grief to force the LA to put ONE right) unfortunately judges usually refuse to see the evidence, or ignore the evidence they do see, like I said, this needs to become a very strict law, virtually guaranteeing the proven liar straight into proceedings, be it the professionals or the family

      • there’s absolutely no reason now why a Court who found that a social worker had lied in evidence couldn’t make a referral to the Attorney General for the offence of perjury. Nothing whatsoever prevents that, or gives a social worker any more protection than any other witness in court proceedings.

        Then why are the Judges not passing the offences by the social workers to the Attorney General. Why do the police NOT investigate cases of contempt and perjury by social workers, why do MPs not act on it with the legislation.

        In police swoops, judges, mps, teachers and the like were found guilty of being in a paedo ring.

        Prosecutions for perjury generally are pretty rare, and even more so in the civil courts
        Not only are social workers protected by their LAs but also by Judges, MPs by not creating the legislation to prosecute and failing to support legal aid to bring civil charges.

      • Prosecutions for perjury generally are pretty rare, and even more so in the civil courts
        How often do the courts bring social workers to swear under oath.
        When do Judges contact the A.G.
        Where is the law that allows a social worker to be prosecuted and where is the legal aid to do this and the solicitors to take the case forward.
        Why is there protection for the damaged parents under the ‘public interest’ in law.
        Why can Judges refuse leave to appeal where damaged and wrongfully removed children and forcibly adopted.
        And why again is there no protection for birth parents AND the children.
        And why are children being forcibly adopted for the courts to be proven in the wrong yet adoptions are not being reversed.

      • It is actually pretty rare for a Judge to baldy state that someone is lying, rather than that where there is a conflict in the evidence of person A and person B, person B’s account is the one accepted by the Court because of…

        Lies can be proven by cross reference of paperwork. A lier fails to remember all preceeding lies and will cover up with a different story.
        False allegations can be proven beyond all doubt.
        Perjury can be proven by history of social worker statements and changing of statements, withholding of important evidence in the parents favour, not admitting a act and then slowly admitting under oath that the events was NOT as previous statements given to the court. (Unless of course the Judge wants to assume that the social worker would not remember the facts on the day but remember them accuractly many months later…uuhm, dont think so.) Especially as they end up saying the same many months later as the parent.

      • So when the Judgements go public, it still does not amount to deframmation in the public domain.
        And it is still not contempt and deframmation if that social worker goes to people NOT party to proceedings and gets a false statement about the birth parent AND even submits it to court.
        Did the social worker not commit an offence.

  6. The problem with opinion surveys…

    When you mention “the previously expressed views from children”, are you referring to a survey, conducted by a big child protection organization such as Cafcass (I don’t remember exactly who ordered the poll but it was that sort of institution), where nearly all youngsters said they would object to their names and histories being made public? I think they were not asked the right kind of question.

    To clarify the point: if you ask me whether I would object to being cut up with a knife, I’ll say I would. But this should not be taken to mean that I would object to surgery when it is needed!

    Likewise, in the case with this poll, the question should be tailored to indicate that the type of publicity at issue is the one which occurs only in very specific circumstances.

    Moreover, imagine a poll when these same youngsters are asked: “When you have a child of your own, do you think the State should have the right to take it off you?” Will they vote “yes”?

  7. Pingback: Transparency Guidance | Children In Law | Scoop.it

  8. Views of children were expressed in the study commissioned by the Children’s Commissioner for England published in 2010. These views were very sympathetic to their own parents but they were wary of the prospect of publicity. It was not a ‘poll’.

  9. mistakes how about intentional foul play by the so called professionals and even submitting mistruths perjury it is a pandemic situation not a rarity

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