Children Schools & Fudge Act 2010?

Further to my previous post on the passing of the Children Schools & Families Act 2010, The Times has published an article about the new provisions which is spot on: it identifies – importantly – that the new law, when it is brought into force, will in fact be more restrictive than the existing privacy rules covering children proceedings. In particular, not only will anonymity rules apply to the children themselves, but they will also apply to anyone involved in the proceedings, apart from professional witnesses.

So much for open justice. The Times says ‘a Fudge’, I’m inclined to agree.

PS Does anybody know when this is likely to be brought into force?

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But it’s an enormous and complex topic to cover in an hour, and there was an aspect of this debate that I wish had been explored more thoroughly. Much of the discussion was based on the supposed dichotomy between journalists (reputable) and bloggers (boo, hiss) and the assumption that all things bad are represented by the internet bogeyman. The Bill it seems, will remove (inadvertently perhaps?) the power of the court to permit access to persons other than ‘accredited media representatives’, which theoretically at least can presently be used to permit access to the responsible blogger without the benefit of a press card. It is of course imperative that whatever the rules permit to be heard, disclosed or published, safeguards should be in place to promote responsible reporting and minimise unbalanced coverage. But, in much the same way that many held misplaced expectations that the press would be a conduit for educating the public at large about the day to day work of the family justice system (is it really a surprise that they don’t report a range of cases across the board but select only those with the power to sell papers?), there seems to be a misplaced perception that we can or should draw some bright line between the ‘journalists’ and ‘the bloggers’.

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First: Journalists and bloggers alike publish, via their different media, information for their own purposes. They none of them serve the interests of the family justice system in educating or informing the public: although their interests may coincide from time to time they are not coterminous.

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Second: Much journalism in the so-called ‘reputable’ press is scandalously unbalanced, sloppy, and sensationalist. A good portion of it is probably in breach of the restrictions on publishing material likely to identify a child. Similarly, an enormous amount of poorly written, inappropriate, biased and frankly crackers material is published by bloggers on the internet on this topic, often by disgruntled litigants or campaigners. The worst blogs are more extreme than the worst newspaper reports, but the worst newspaper reports probably reach far many more pairs of eyes than any single truly dodgy blog. But in each category there are a number of responsible, thorough and professional writers who can be relied on to report in an appropriate way. As Joshua Rozenberg pointed out journalism is not a ‘Profession’ with a regulatory body. A press card is not necessarily a marker of good quality, and media access rules based on it draw a somewhat arbitrary line. Even Joshua Rozenberg, prize winning legal reporter, was at one point on the wrong side of that line because he was freelance and had no press card. And by way of a further example Charon QC, a notable blawger (law blogger) does have a press card.

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Third: In practice a certain category of individuals who publish via blogs or websites do not consider themselves contrained by the rules in the same way that professional journalists (and their employers) may do. They may post the detail of their own cases, photographs of their children, names, and catalogues of injustice (perceived or real), the names of experts or social workers and the contents of their reports. They either do not know that the rules apply or they do not care. And the sharing of inappropriate information on sites like facebook is now endemic. Whilst I am hugely uncomfortable about some of the material I have found publicly available on the internet, tortured rules trying to prevent what is already happening – and frankly will continue to happen – is a distraction. If there is material published on the internet that is inappropriate or contrary to the rules we should give teeth to the existing prohibitions on such publications and enforce those breaches rather than creating broad a new set of rules which will then go unheeded by the rogue bloggers just like the last set. We are in danger of throwing out the baby with the bath water, because 

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Fourth: The drive to reform in this area has multiple aims – to increase public confidence in the system by way of greater transparency and by educating the public about what happens inside the family courts. The penny seems to be dropping that newspapers aren’t going to do this job. Even Camilla Cavendish (self appointed champion of the open courts campaign) appears to have got bored reporting about family courts (nothing since 9 July) And frankly they don’t have the reach. The internet is a hotbed of debate about family law, about the court system, about CAFCASS, about social services, lawyers, judges…We can’t simply pretend this debate is not happening if we expect to increase public confidence in the system. What we ought to be doing is contributing to and informing these debates, using the internet and the blogosphere rather than consigning it to the naughty corner. If you want to reach the cynics, the confused and the disillusioned put it out there on the net. Mr Justice Coleridge cracked a joke today about lawyers not even knowing how to switch on their computers. We have got to get switched on to this and stop hiding behind our bundles.

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I’m not advocating the disclosure of court reports or documents to either bloggers or ’real’ journalists. I’m not advocating access of the public to the courts. We have a responsibility to children – and to families in general – to protect their privacy and their wellbeing (I’ve posted about this before). And I don’t profess to offer an opinion on how we do this in practice – it is a really difficult one to crack. But I do think that the lack of public confidence in our family courts is something we need urgently to tackle, and that we need to be more wide ranging and more creative in our thinking. Dr Brophy proposed that we needed to get more involved in communities. She’s right on that, but unfortunately all she could suggest was more Court Open Days, which are positive but are simply not going to have any significant impact on the scale of the problem.

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One further point. I think its unhelpful to talk about ‘PR’ as one of the panellists did today. This is not about opening up the courts in order to demonstrate that the family courts are great. It’s not just an exercise in validating ourselves as professionals. It’s about people understanding what happens and why, and of being able to get an understanding of how robust and fair the system is – but also an understanding of where and why that system falls down. I don’t think its about putting the court system in a positive light. I think it’s about being honest and about engaging in dialogue. We all know that although there is much to be proud of the system is in fact far from perfect, although this may be in different aspects or for different reasons than are perceived by the unhappy ex-litigant. To pretend the family justice system is not struggling with significant problems would be disingenuous and transparent in the wrong sense of the word.

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Following on from today’s discussion I’d like to prompt a debate amongst professionals working in the family justice system about this – lawyers, judges, social workers, court staff. Right here on this blog. And of course anyone who reads this blog is welcome to chip in.

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How should we harness the power of the internet and how can we engage meaningfully with the public through the  internet and bloggers, web fora etc? How can those of us working in the family court system help in increasing the quality, reliability and balance of the information available to those whose main source of information on this topic is the internet? How can we use the internet to enhance our own understanding of what the public think of the system and why?

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Who will start me off with a comment?

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It should go without saying that in the course of the announcement Mr Straw took the opportunity to lob a gratuitous shot at lawyers about legal aid, wheeling out the same old misleading figures. And now it seems he is also having a go at the notion that multiple parties should be afforded representation in children cases. Why not go the whole hog and just scrap the judicial scrutiny of the removal of children from their parents and make it an adminstrative process? Or better still why not let the media report the cases freely, each paper taking on the case for a different party and decide the case on the basis of newspaper sales? Much cheaper and much more transparent – both key goals achieved!

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Am I sounding a bit sarky this morning? It’s been a long week…

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What I suppose was not lost on the parties in that case (who both supported a media ban) was that although there may be nothing terribly exciting or newsworthy about the divorce itself the rules permitting media access would give free reign for the prurient eye of the media to roam through the embarrassing details and little extravagances of expenditure that might be the kernel of a story in a desperate hour. Of course the media would not have access to the documents themselves (at least not without prior successful application to the court) but cross examination in ancillary relief cases may well have highlighted this and that – enough to get their teeth into.

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No doubt the media will be more interested in reporting the costs of caribbean cruises or private jets that make up the expenditure of the rich and famous than of the detail of Mrs Blogg’s monthly tesco bill, but I don’t really see that wealth or celebrity ought to raise an entitlement to privacy that is not afforded to the rest of us. Whether silken lingerie or tesco kecks none of us much wants to wash our dirty laundry in public, but rules is rules and the clear policy behind them was to open up the hearings to the media. In the course of time once the new regime has bedded down we will perhaps see a proper refocussing of energies (and costs) into applying for reporting restrictions, where appropriate, rather than attempts to ban the media from attending in the first place which appear not to be finding much favour with the courts.

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Before you go describing the details of your case online make sure that what you are about to post is within the law. There may be lots in the press about the opening up of the family justice system, but it is actually very easy to fall foul of the law about publishing information about court cases concerning children – the law applies not just to reporters but also to you as a parent. If you do publish information about the case, whether in blog form or otherwise, you won’t be the first person to do so. But be warned, like those who have gone before you, even if you are careful not to name names you are likely to be committing a contempt of court and possibly a criminal offence.

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I have come across detailed journals about the journey of children and their parents through the court system, and I often get comments that I moderate off my blog because if published they would offend against the law. It’s a worry that people think they can publish what they like as long as it’s anonymous, and this post is intented to raise a few flags to those people, so they can be better informed about what the law says about their actions**. Hence the blogger’s guide to writing about family proceedings:

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So, here are Ten Things You Should Know:

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1 Apart from allowing the media access to court hearings on 27 April 2009, pretty much nothing else has changed. Reporting restrictions where children are concerned still apply.

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2 Reporting restrictions apply to individuals, including parents, as well as just reporters and thet are more complex than just saying ‘the child, who can’t be named for legal reasons’ etc.

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3 It is a criminal offence to publish information intended to or likely to identify a child as involved in Children Act proceedings (s97(2) Children Act 1989).

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4 It is a contempt of court to publish information relating to proceedings wholly or mainly concerning the upbringing of any child (s12 Administration of Justice Act 1960). You can be punished for contempt of court by imprisonment. Any communication of information to someone else, whether orally or in writing is a ‘publication’. ‘Information relating to proceedings’ means details of what has gone on in court, including what the judge, witnesses or experts have said or written in court documents. It is ok to give the gist of the issue in the case e.g. that the case concerned decisions about where the child should live or how often they should see their parents. It is not ok to give details of allegations made by the parties, for example about violence or the standard of parenting given by one parent.

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5 It is ok to publish information identifying a child as having previously been involved in Children Act proceedings once the case has finished (Clayton v Clayton 2006) e.g. My daughter Sarah Smith was the subject of an application by me for residence (Be warned though, Jack Straw has said he will abolish this exception although it seems unlikely that he will find time to amend the law any time soon).

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6 However, it is still a contempt of court to publish information about what has gone on in the court case even after the court case is finished – s12 Administration of Justice Act 1960 applies indefinitely.

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7 The court has a wide power to make specific orders to relax or restrict the application of the law set out above. If you want to publish something that the law prevents you from publishing you will need to apply to the judge dealing with the case. If you are publishing material that comes to the attention of others involved in the case you may find yourself on the wrong end of an application for an injunction, and possibly with costs implications.

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8 If the press approach you to speak to them, do not rely on the media to know what is and is not lawful. Even respectable national papers regularly publish material that is in breach of the law.

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9 You are not entitled to disclose court documents to the press or to publish them online. You can disclose them to somebody confidentially if you need to do that in order to obtain advice support or assistance in the conduct of your case, but you must make sure that anyone you disclose documents to in this way knows that the material is confidential and must not be passed any further. You should look at rule 11.1 – 11.9 FPR 1991 to see what can be disclosed and when. Giving details of your case to other parents for help on an online support forum is probably not within the rules even if the forum is members only, but on the other hand the Court of Appeal have taken a relatively sympathetic approach to this type of activity in the past, when it was clear that a useful purpose was being served by the forum (see Re G [2003] EWCA Civ 489). Using a forum to run down the other parent is likely to meet with a less sympathetic approach.

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10 Consider what impact any publication will have on the child, and consider what impact it may have on the court’s view of you if it is drawn to their attention. It may prove very unhelpful if the Judge thinks you are on a crusade for justice that has distracted you from the practical needs of your child. Consider also how publishing material will HELP you secure justice or what unwanted attention it might attract.

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So those are my ten points – it is often superficially attractive to get all your disgruntlements off your chest, and to gripe about how unfair the system is. And it is all too easy to forget who may be reading what you have posted in a careless moment. At least if you do decide to publish and be damned you can do it from a position of first having a rough understanding what the law says about it.

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Postscript: Number 11 on the list is that points 1 – 10 are a very very broad brush and quite superficial summary of what is actually quite  a subtle area of law. This is the Nutshells version only.

** NB: This post is a summary of the law concerning disclosure and publication of information in relation to family proceedings concerning children. As with everything on this blog it should not be treated as legal advice and I would suggest that anyone in doubt should 1) seek legal advice about the specifics of your case and 2) hold off on publication until that doubt is resolved.

POST SCRIPT NO 2: Don’t forget the law is due to change, on a date to be announced…See here.

I am increasingly cnvinced that there is a market to be cornered in educating journalists about s12 Administration of Justice Act 1960. And, given the frequency with which it is ignored, a case for it’s early reform.

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On the way back from said soup run, I noticed the Guardian has finally picked up on the story, reporting the rule changes I thought rather inaccurately (suggesting that there had been a blanket ban on reporting (there wasn’t) which has now been lifted (in fact nothing has changed as far as reporting is concerned, apart from the political context in which the pre-existing discretion will now be exercised) conflating media access with reporting rights. Also see Guardian Online commentary here. (you see it’s not just The Times I grumble about).

Not a few people were so caught up whooping at the successful drawing back of the cloak of secrecy that they failed to pay attention to what was actually being announced and what was actually possible in the timescale between announcement (Dec) and implementation (next Fri). Is that a ‘con-trick’? No. Reporting restrictions were ALWAYS going to take longer than four months to sort out because the law concerning the reporting of proceedings concerning children is spread across several different pieces of primary legislation (Administration of Justice Act 1960, Children Act 1989, Children & Young Persons Act 1933, Contempt of Court Act 1980 etc). The easy bit: media access – well that could be fixed simply by tweaking the rules quick as you like.  

Far from a case of ‘hoodwinking’ as suggested by Mr Hemmings MP (who ought really to know that statute requires amendment by Parliament and that the process of amending primary legislation can be laborious and slow), the limitations on the changes announced for implementation in April this year ought to have been obvious to anyone paying proper attention from the outset.

The media have been misled, says Mr Hemmings. Perhaps they have, but at the risk of siding with Jack Straw – not by the Government. One might venture to suggest that ‘the media’ have been so busy dancing their little victory dance that they have gone almost to the day of implementation without really scrutinising the proposals and public statements to see what they actually promise. One might also note (with just a little snidey grin) that this does not instill confidence in the ability of the media to thoroughly and comprehensively analyse and present sensitive or complex material arising from family proceedings for the purposes of fair and appropriate reporting. But that would just be catty.

Mr Hemmings is right. Significant change on a day to day level will come only when the law relating to reporting restrictions is reformed. And it remains to be seen what shape that reform will take. The process of legislative reform of reporting restrictions is likely be complex, controversial and time consuming. Watch this space – carefully. And DOooooo pay attention. There will be a test.