Few people know that before becoming a prominent family judge His Honour Judge Bellamy could be found “wummaging awound in the undergwoaf” giving judgment on rainforests and the life cycle of moss and fungi. Few people know this because it is not true. (“Well, gwapple me gwapenuts!” I hear you mutter).
However, it is true that whilst engaged in a bit of undergwoaf wummaging myself I discovered a really interesting article in the March issue of Family Law by the other Bellamy – His Honour Judge Clifford Bellamy: “Can The Press Be Trusted?” ([2011] Fam Law 260). It is the text of a speech given at the ALC conference in the latter part of last year, so many of you may have read / heard it before, but I had missed it until now. It puts in context the judgments in Re X, Y and Z (Care Proceedings: Costs) [2010] EWHC B22 (Fam) and Re S (A Child) [2010] EWHC B2 (Fam) (subsequently Re S (A Child) [2010] EWCA Civ 325 and Re S (Transfer of Residence) [2010] EWHC B19 (Fam)) and also the subsequent judgment in the case of Re L (A Child: Media Reporting) [2011] EWHC B8 (Fam) in which Bellamy was highly critical of the involvement of Telegraph journalist Christopher Booker.
Note: I have linked to many BaILII documents in this post – BaILII are appealing for funds so if you can give back a little please do.
Happily, the Association of Lawyers for Children are hosting the text of the speech on their website here, so even though some of us are still gnashing our teeth at the withdrawal of Family Law from our Lexis packages it can be accessed for free (I have uploaded the document here, out of an abundance of caution incase the link goes down in future).
Bellamy tracks the development of his views about press reporting of family cases in the context of his own judicial experience in the two cases cited above, and having quoted despairingly of some of the more inaccurate sensationalist international news coverage says that
“All of these headlines underline the point thatwhat the media reports will be retold — and retold around the world. What comesout of the Family Courts stays out. In the report referred to above, Julia Brophy noted that:
‘Almost all respondents said [that] children in cases will be fearful that very private, painful, humiliating, embarrassing and shameful information about their care and family will be placed on social networking sites. Children said anyone can download information from newspapers and post it on the internet. It will then be available forever — to be ‘googled’, downloaded, added to blog sites and circulated by text and e-mail at any time throughout a person’s life.’
The young people and children interviewed make a very valid point. We would be unwise to overlook the practical reality that in today’s world the power of the internet is greater than the power of the courts.”
Rather prescient as it turns out.
But what neither Bellamy nor Brophy acknowledge is that – regardless of what is permitted by statute, court rules or specific order – much of this material is out there ANYWAY, because there are so many out there who wilfully and flagrantly disregard the privacy rules and are dismissive of their purpose. If more responsible and accurate reporting can be permitted it will mitigate the damage done elsewhere. The more I ponder it the more I think it has to be a tandem approach – curtail the inappropriate and potentially harmful where necessary and justifiable, but be more ready to make permissive orders or give leave for certain classes of material to be published and for documents to be seen by the Press in order to facilitate better reporting (and thereby to deny those who use the restrictions as a smokescreen their excuse for sloppy journalism).
Bellamy goes on to conclude:
“I began 2010 as an enthusiast for greater openness and transparency in the Family Courts. I ended the year with questions and doubts. I hope that in 2011 I shall be allowed to retreat to the peace and tranquillity of my judicial bunker. But that still leaves the question raised in the title of my talk: can the press be trusted? I trust them not to give me a good kicking — or at least, not without some justification. However, when itcomes to the reporting of family cases, whether the press really can be trustedto use their power responsibly is another question entirely. The jury is still out.”
I wonder if Bellamy still trusts the press not to give him a good kicking? At least one journalist has had a pop, but not it seems to his face. The judicial bunker may not have been as tranquil of late as Bellamy had hoped.
The jury was out in October 2010. Is the verdict now in?
Bellamy says “can the press be trusted?I say “Can judges like Bellamy be trusted?” Answer a resounding “NO!”.
Bellamy attacked Christopher Booker for his two articles last year because he mentioned “only one small fracture” when in fact there were several metapheasel fractures thus implying he deliberatzly minimized the injuries to whitewash the parents !Bellamy knew quite well when he cast this slur that these extra fractures were not discovered until all the “experts” were called in to study the x-rays this year ,and at the time Christopher wrote neither he nor the parents could have known about them ;also neither Bellamy himself nor even the police knew about them at that time(see judgement)!
In other words Bellamy deliberately criticised Booker for not writing about fractures when he knew perfectly well they had NOT been discovered at the time Booker wrote the two articles ! A bit like criticising a reporter for not giving the result of a match before it had been played !
Given these facts ,I know who I would trust !
Sorry,I should also mention the “fearful children” who were asked the loaded question as to whether they would like their private affairs splashed all over the papers.
Nobody asked them if they thought their parents should be gagged and threatened with prison if they protested publicly when their children were removed !
Worse still nobody asked these kids if the children themselves should be gagged and prevented from saying publicly who treated them badly in care and what had been done to them !
In neither case I am sure, would the children have voted for gagging !
Ian Josephs, do you acknowledge that children might be harmed by parents “speaking out” to the press? By details of their private lives being shared with a wider audience through the media? Would you condone the actions of parents who did that, or are you just saying that prison is too severe a punishment for it?
I agree that their parents going to prison would almost certainly be a major source of distress, but how would you recommend that the courts ensure parents respect their right to privacy? I’m not saying that there isn’t a better way, just that I’m not sure I can easily think of a better one.
NOBODY should be gagged if they wish to protest against what they perceive as an injustice of any kind, perpetrated against them by the State.
To me that is a fundamental liberty that should never in any circumstance be curtailed.
The UK is the ONLY country in the world to gag mothers whose babies have been confiscated by the State.Even the UK did not perpetrate this GAGGING horror until the Children act 1989 and nobody was the worse for that before that date.
I think the privacy of a baby is of minimal importance compared with the damage it suffers when removed from its mother and is adopted by complete strangers.Surely any such mother feeling unjustly treated should have the right to cry out in protest from the rooftops?
Also why gag children in care and even when they leave care?Would they have voted for that too?Do turkeys vote for Xmas?
Children in care crying out to return home are gagged,but read about two (anonymised of course) in the Booker column in the next edition of the Sunday Telegraph.
Ask yourself L why the UK is the ONLY country IN THE WORLD to gag mothers and jail them secretly when their babies are taken?(200/year according to Harriet Harman when she was children’s Minister)
As for “privacy” L,if the “SS” consider that important why do they advertise children for adoption in the Daily Mirror,”Be my parent” and other magazines with colour photos ,dates of birth,first names,and character descriptions ensuring easy recognition by neighbours and the horrified parents themselves ?It’s because they are hypocrites who want “privacy” for themselves and the “goings on” in the family courts, not the children !
Well, I think your position is clear. Can I take it then that you would not seek to impose any privacy restriction at all where a baby has been subjected to serious sexual abuse by a parent? You think that would be okay? That the baby’s right to privacy (quite apart from other family members) is of “minimal importance” compared to the damage it has suffered from the abuse and will suffer from that abuse being made public?
You use emotive language like GAGGING as if there is no justice system (including sophisticated appellate system) to protect the rights of parents, and talk about mothers being jailed as if it is commonplace, when in fact it is the enforcement method of last resort. In most cases courts do not have to gag because parents operate with a degree of common sense and respect for the court rules (in which I include the making of applications through the appropriate channels to publish or release information to the press or elsewhere). The courts only need to “gag” where parents refuse to be bound by rules, and only need to imprison where rules and orders are subsequently disobeyed.
A mother who has been unjustly treated may have the right to cry out in protest as a matter of public interest, subject always to balancing the competing human rights of others, in particular the child. A mother who “feels” she has been unjustly treated may a) not be correct and b) not be best placed to objectively assess what should go into the public domain.
Incidentally, the key provision which empowers the court to imprison mothers is s12 Administration of Justice Act 1960, which although amended upon the implementation of the Children Act 1989 did provide for contempt of court in relation to predecessor proceedings. So I don’t think that the “gagging horror” is a function of the Children Act 1989, although I have no information to tell me whether or not contempt proceedings for this kind of thing have increased or declined since the CA was implemented.
Can we take it then that the source of any material to be published in Sunday’s Telegraph will have been you?
Familoo, you must be aware the injustices of the Family Court are caused by the secrecy, and the secrecy is considered essential to cover up. That is why it is so determinedly defended.
The “privacy” nonsense is an excuse brought out when they were challenged by The Times’ campaign.
This will always arise when there is no accountability.
The behaviour on the Ministry of Truth blog is outrageous.
The Outing of a northern council in the House of Commons exposed a case which if true would be a very serious scandal and mean a Serious Case Review.
Hardly surprisingly said council would want an injunction to cover up.
But it is getting near to home as far as the Family Court is concerned as it brings the actions of the judge in the case into serious question.
So it has to be kept of the front page at all costs.
The secrecy came from the mega-scandals of the
late ’80’s and early ’90’s and also cases whee the council was criticised for not doing anything.
This is why it was started in the Family Court because he scandals were headline news or on TV day after day.
As I say the SRA Scandal was the denouement of the Child Protection System.
But of course that is why we heard about them because thee was no secrecy in those days, only the rule that the parents and kids should not be identified.
Parents who have their children taken should like rape victims be given the choice of remaining anonymous or telling their story to the media.
In the example you give Familoo of a baby subjected to sexual abuse by a parent,the parents would be unlikely to boast about it if guilty but if they believed either or both had been unjustly accused they should have every right to complain publicly. I have never called for wide open family courts ,just that none of the participants should be legally gagged.
THE CHILDREN ACT 1989 SECTION 97 (2) amended the Administration of justice act 1960 as you say,but in my opinion the gag was never applied to parents in 1960 and only after 1989 were parents “forbidden to talk”
True,gagging is an emotive word to describe an emotive action!It infringes the right of free speech which is the hallmark of a democracy as opposed to a creeping dictatorship.Judges twist the “right to privacy undisturbed by the State” into a “gag on parents to stop them criticising the State!”How perverse can you get? As to the source of Christopher Booker’s material;well I cooperate with Christopher but I am certainly far from being his ONLY source .
Lastly,sorry to repeat myself,but like all those crying out for “family privacy” you never explain why it is ok for the “SS” to be granted permission to advertise literally hundreds of children in the Daily Mirror and other periodicals with colour photos,first names ,dates of birth,and character descriptions to be selected like pedigree dogs by potential adopters.Easy for neighbours,friends,and parents themselves to recognise I must believe the privacy is for the benefit of social workers not children until I get a more rational explanation.
The Children Act 1989 s97(2) does not amend the Administration of Justice Act 1960, it creates an entirely separate criminal offence of identifying a child the subject of proceedings (or of identifying his address or school). The Administration of Justice Act 1960 s12 makes it a civil contempt of court to publish material relating to proceedings wholly or mainly concerned with the upbringing of a child- regardless of whether or not the child is identifiable or identified. It is only s97(2) which ceases to apply at the conclusion of proceedings (Clayton v Clayton), whilst s12 AJA continues to have force indefinitely (not so as you would know it from the press).
Both parents and social services have to apply for permission to publish information. Local Authorities are not permitted to publish without permission of the court.
You will clearly continue to maintain the same views regardless of the rational explanations put forward, so I’m not sure that I’m going to respond to much more. The comment threads are becoming rather repetitive.
Dick and Ian, with all due respect, I think you are oversimplifying things. It’s not a simple choice between a child being removed from their parents or the parent speaking out; even if they speak out the court processes which might see their children removed still exist. The media can’t magically vanish away the Children’s Act and our court system, however much they might like to.
Secondly, I personally would like to see the family courts operate with a great deal more transparency. I don’t see why the identities of public authorities or expert witnesses, for instance, should remain a secret. I think courts should keep hold of papers so that in the future children can in out what happened to them – I have never read the assessments my case was based on because they were destroyed. I even think that in some circumstances it may be appropriate for families to speak to the press, so long as they remain anonymous themselves – protecting the identities of the child. But I firmly believe that the identities of the children should remain a secret. I believe this because I WAS a child in the family court system, and I know it would have made my life even more difficult at the time (and now) if my parents had been able to play out the very serious allegations they made about each other in the press. I don’t think the court got it right in my case, to be honest, I lost contact with a parent for a long long time. But at the same time, having the Daily Mail splash my life all over its pages wouldn’t have helped me in the slightest.
And finally, I’m not so sure that it’s true that once children reach 18 they themselves can’t speak out about family court proceedings? If that were true, I doubt anyone (most family court judges included) would think that was a good thing, and I’d be very surprised if anyone were actually prosecuted. Can you point to any prosecutions for this? The law isn’t perfect, but I do think you’re placing a lot of emphasis on the rights of adults to speak out, without thought for the effects on children.
I agree that identities need to be protected – both children and parent’s. However, there also needs to be accountability for the wrong doings – be it abuse of children by parents; or abuse of parent by Local Authority.
I have followed many of Christopher Booker’s articles, and I have never felt that he ever over stepped the mark. He protects the identity of people that have been catapulted into and awful situation.
I am sure that all sources of information are researched to ensure there is no misreporting of facts; certain facts of case information are altered to further protect the identities of person(s) involved.
As long as the person “cannot be identified” from reading the article- the law permits disclosure to the media and the media to print certain elements of the case Christopher Booker is an excellent columnist, who is articulate and precise with his writing. His reporting has given many people a sense of hope, that justice will be served.
Try to imagine how helpless, powerless, and emotionally beaten some of the parents feel – that have truly been wronged by Local Authority. Christopher Booker gives them “a voice”, Allows them to be heard – when Local Authority are trying to gag the parents by keeping them out of court. In mid-January he reported on a woman who lost her baby following a fall she had, rendering her temporarily paralysed. She did not use drugs, drink, or suffer mental illness – Yet local authority took her healthy un-abused child. When she was in hospital, paralysed, she received a call from a Social Worker telling her that her baby was going to be adopted in 6 weeks! SHE WAS PARALYSED! How unethical, unorthodox and unspeakable cruel was that!!!!
The pain and heartache this young mother must feel, to go from fighting for her own life to fighting for her daughter’s is, unimaginable.
In this instance – the employees who targeted her and violated both her and her child’s human rights – should be made accountable. “Name them and shame them” For it is the Local Authority involved who are a danger to children and parents alike
I have also read Ian Josephs website – and he provides people with valuable information which should have been made available to them, but had not. Parents are supposed to be provided information by the Local Authority, but in many instances is not. . Both Ian Josephs and Christopher Booker want justice to be served – and rightfully so. They are helping parents in otherwise “helpless” situations.
If the Government employees did their jobs – as they are getting paid to – and did them properly, there would not be a need for the media involved to expose the wrong doings
Both families and government employees ALL have a responsibility to protect our precious children. No child should be harmed by the hands of a parent, family member or carer/ guardian; likewise, no child should be harmed as a result of a complacent employee of the Local Authority. Our Children need to be protected, and we all equally have a duty of care to protect them from harm, neglect and/or abuse.
For a child’s well-being to remain our number one priority, we must stop this “Power Struggle” between adults and WORK TOGETHER. We cannot afford to be too proud to admit our mistakes and focus on what is important…because EVERY CHILD MATTERS!!!
Well how about the Daily Mirror,and “Be my parent” advertising children for adoption like pedigree dogs with colour photos,dates of birth,first names,and character descriptions?
Does this sound like concern for the privacy of children or for that of the “SS”??
Repetitive maybe ,but so far with no answer at all !
Do you disapprove of diligent efforts to find a suitable adoptive family for children who need new homes? Should not the Local Authority / adoption agency make all reasonable efforts to match children well?
Yes I do ! Forced adoption is an abomination and should be classed as a crime against humanity.I think however you deliberately misunderstand my point that the “SS” completely disregard the privacy of the children when it suits them because their real preoccupation is privacy and public anonymity for themselves !
I hear your position as being measured.
But as for the speech. Sure, we have a brave new world of open reporting, which the judge describes. The judge prevents the naming of a local authority (open ?), and then will change his mind if someone makes “a formal application to the court”. So how much does one of these cost ? And all that is extra money which does not guarantee that the application will yield a publishable return.
As the judge is pointing out, the world of publishing is very tightly constrained. What a wonderful contrast to the world of legal largesse !
So all we need for this open-ness thing is buckets of money for the lawyers to make applications, and for the news services to use economically suicidal amounts of manpower available to cover the court reporting in a responsible fashion. Yet despite this reasoning, i am not sure that the judge has his finger on the real problem.
I am grateful you provided the links to the cases, including the case of S. Not only is it profoundly miserable, but it raises some questions about how such cases should be dealt with. In my view, openness about such cases, how many there are, what the outcomes are, etc., are fundamental to be able to commence such a debate.
I take your point about the cost and labour of making applications, although in care cases parents will not have to find the legal fees as they will be publicly funded. I am going to try and do a blog post dealing with some of the practical hurdles you raise, but don’t have time to do this now.
yes, it is trafficking in children and racketeering.
Essentially the adoption industry is being supplied from children in Care.
Just to meet demand children are scheduled for Forced Adoption – which is why the term has come into use – at Full Care Order stage or taken into Care for this.
It is the practice to decide on this earlie and earlier, now 4 months.
Once started the adoption process is virtually impossible to stop.
Perhaps we could ask your opinion as a high-powered Family Court legal on this.
Here are two entirely hypothetical cases.
Yet another MSBP relaunch.
Mother accused of MSBP.
In all other respects have excellent home.
SS Dept. staff provably embroider evidence to bolster case.
Tame F C expert witness, one of those Julie Haines complains about, claims mother has Borderline Personality Disorder.
NHS psychs unable to detect it.
Children put up for Forced Adoption.
Child taken into Care at birth because of misuderstood comment by NHS worker.
Evidence against this through Care proceedings.
Then tame F C expert claims mother has Borderline Personality Disorder.
NHS psychs say ditto.
Children put up for Forced Adoption.
The children in most cases already have good homes and the SS Dept. is being anything but diligent and has not made all resonable efforts to get the chidren back home.
I might add this practise of trendy adverts in newspapers andd magazines, along with Adoption Shops and the “Forever Family” slogan, were the trendy features of compulsory adoption, as it was then called, when invented 40 years ago.
I’m not high powered and I’m an independent barrister not in the employ of the state.
No, I won’t comment on the examples you give, there is insufficient information to enable anybody to form a reasonable view.
Familoo, you accuse Ian of using emotive language – which he acknowledges – but I would suggest respectfully that you do the same when you refer to the ‘damage’ a baby ‘will suffer from that abuse being made public’. Where is the evidence for this? Unlike Ian I believe in wholly open family courts because I believe that the lack of accountability and scrutiny has reached a point where it overrides any privacy issues. I have never seen any evidence offered that removing anonymity has ever caused any ‘damage’ to a child, nor that any child has been protected from damage by anonymity (far from it). There has never been a successful prosecution under Section 97. I believe it is inconsistent to call for greater openness of the courts while also insisting on ‘privacy’. Michael Pelling called this the anonymisation fallacy which is worth presenting in detail. He wrote, ‘If you cannot publish your judgement including the names of parties then you cannot identify yourself and you cannot publicise the injustice you have suffered in the secret Family Courts.
‘Anonymous campaigning is almost a contradiction in terms! Suppose (which if the press had followed the law would have been the case) that the matter between the former Home Secretary David Blunkett and Kimberley Quinn had been covered rigorously according to the law with no identification of parties: the story would have been worthless and the press would not have wasted newsprint on it. You do not ‘protect‘ your child by concealing his name and his parents‘ names – you are rather insulting him and them; there is no evidence that harm will befall him. And you are allowing the state a right of censorship.’
At the European Court of Human Rights at his oral hearing in November 2000 Pelling asked, ‘Censorship is the first and strongest weapon of the totalitarian state; it was used in Nazi Germany and Soviet Russia; does the court want to be seen to be upholding such practices?‘
In the subsequent Grand Chamber application (refused) Pelling wrote, ‘A person‘s identity is perhaps his most precious possession as a human being. To rob him of his identity and reduce him to an anonymous cipher is degrading treatment worse than torture (the two often go together). Jews in the Nazi death camps were identified by numbers stamped or tattooed upon their bodies’.
He also wrote later, ‘The fact is that Section 97 does not exist to prevent publication of celebrity cases like Bob Geldof and Blunkett but to suppress the rights of the average [parent] to highlight the routine injustice which is being meted out in his case by the evil Family Court system of England and Wales. It is the legislative equivalent of tearing your tongue out by its roots. Do not be deceived: you are not helping your children or the children of others by allowing the State to rob you of their and your identity within the family justice system. This does not happen in Scotland and other Council of Europe jurisdictions: so why tolerate it in England and Wales?’
This, too, is emotive language, but in my view it is justified. Far too many campaigners for openness and justice in family law want there to be only half-openness and half-justice. That isn’t possible, and it isn’t supported by evidence. Don’t fall for the anonymisation fallacy.
you say: “you refer to the ‘damage’ a baby ‘will suffer from that abuse being made public’. Where is the evidence for this? Unlike Ian I believe in wholly open family courts because I believe that the lack of accountability and scrutiny has reached a point where it overrides any privacy issues. I have never seen any evidence offered that removing anonymity has ever caused any ‘damage’ to a child, nor that any child has been protected from damage by anonymity (far from it).”
I have first hand experience of it in cases where I have represented (for example) teenage children who have been mortified that their parents and supporters are publishing details about their private life, wishes etc on Facebook as part of a “campaign”, where all a child’s school friends and their parents can see it, where the anxiety about friends knowing what is happening at home is so great that it has caused physical conditions to be exacerbated, where children write directly to the court saying in effect “please make it stop” or “what I really want is x” (when the parents insist that what the child really wants is y) and where children refuse to talk openly to professionals when they feel that their confidence has been breached. Clearly I’m not going to give any detail of these cases precisely because of the children’s views about their privacy (and the usual constraints). I can think of plenty of other hypotheticals – children of exam age being doorstepped by journalist impacts on education, sexually abused children being marked out in local community and vulnerable to sexual predators (because they are victims and because they are rendered less willing to report again), children who have had extremely traumatic experiences at the hands of a violent parent put at risk because their whereabouts becomes apparent from material published, children suffering from neglect teased at school for being dirty etc. Leaving aside the specific scenarios described previously, an adult client said to me recently (a victim of dv applying for a non-mol) “it’s so humiliating having your life exposed and picked over like this”. That is what it’s like for an adult in a private case with no media attention. What is it like then for a child to be singled out like this? Again, I’m not saying there shouldn’t be much more material permitted to be published, but you asked for examples and I think there are many examples of where restriction on publication would be more than justified in order to prevent or reduce harm.
But I’m arguing about re-balancing the system and I believe that, on balance, children are at risk of greater harm from excessive privacy and confidentiality (secrecy, if you prefer) than they are from openness (‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial’).
I take the individual points about the children you describe, and I have had to keep my own son’s whereabouts confidential in order to protect him from another family member, so I don’t question what you say, but I believe there are better ways of protecting these children than secrecy. In my son’s case, for example, his safety would have been better served if the police and social services had taken seriously the concerns expressed by his mother and myself. That they didn’t is another failing of the system and one which should be publicised in the public interest.
Parental Facebook hate campaigns are a far cry from what I was really talking about which is making information available to researchers, academics, litigants and their legal representatives, and ensuring that judicial decisions are open to scrutiny. I can’t really see how a properly accountable system can retain areas of secrecy.
Nick, just so I’m clear, I’m not talking about use of facebook for a war between parents (which is common enough) but use of facebook to publicise what parents perceive as injustice, with the effect of causing quite acute anguish to a vulnerable teenager. And there are cases as you say where the better form of protection may be from other agencies than the court, but I don’t know how effective social services or the police can be in protecting against the anxiety caused by doorstepping journalists and paps.
As you know from previous discussions I’m not against greater openness, but I think the tricky question is how you achieve openness without damaging privacy and anonymity. I do think in most cases anonymity is likely to be necessary, but actually I’m trying to find time to do a blog post which makes some more concrete proposals for a new regulatory scheme (other things keep getting in the way!) but when I do get that post up I’d welcome your views as to whether the balance is right. When you actually start thinking about the mechanics of any alternative scheme it’s really quite a tough and delicate task.
Just to make my position clear;I am not against completely open family courts but I feel far more strongly about the outrageous gag applied to any person who feels unfairly treated by those courts.
I feel that this is an objective that campaigners can realistically hope to achieve since no other country in the world applies such a gag;
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