Pulling back the curtain of privacy in family and Court of Protection proceedings

family and court of protection guidelinesStephen Grant | Halsbury's Law Exchange

By Lucy Reed

New guidance on transparency in proceedings has been published by the President of the Family Division and of the Court of Protection, Sir James Munby.

The two sets of guidance entitled “Transparency in the Family Courts: Publication of Judgments” and “Transparency in the Court of Protection: Publication of Judgments” come into force on 3 February 2014.

Both of the new guidance documents link to the very helpful and comprehensive 2011 paper The Family Courts: Media Access & Reporting, which sets out the law in this difficult area and repays being read in full.

It can be seen from the titles that the focus of this guidance is on judgments, rather than issues of transparency more broadly. What is also plain is that further guidance is likely to follow, and such guidance is likely to pull back the curtain of privacy in family and Court of Protection proceedings yet further.

The Guidance can be seen as part of a continuum, the latest in a series of pronouncements from the President – first as High Court Judge, latterly as President giving judgment, and also through the various “Views” from the President’s Chambers. The President has long been known to favour reform and, so, the Guidance should come as no surprise.

In September last, in the case of Re J (A Child) the President gave guidance that remains pertinent. That was a case which: 

[raised] important questions about the extent to which the public should be able to read and see what disgruntled parents say when they speak out about what they see as deficiencies in the family justice system, particularly when, as here, their complaints are about the care system. The case also [raised] important questions about how the court should adapt its practice to the realities of the internet, and in particular social media. 

The background was of a parent involved in care proceedings publishing material on the internet concerning both the subject child and of siblings who had been placed for adoption as a result of earlier proceedings, and material which was critical of the care system and which was “abusive, insulting, threatening and, indeed, highly offensive” to the social worker.

In Re J, the President said of transparency generally, that, “There is a pressing need for more transparency, indeed for much more transparency, in the family justice system”. He articulated points about the public’s right to know what was being done in its name, the need to permit public debate about miscarriages of justice, and of the need to promote public confidence in the system. The remedy to complaints about secret justice and of declining public confidence is – said the President – not secrecy, but publicity.

Also reiterated in Re J was the proposition that it is no part of the role of the judge to seek to exercise editorial control over the media, notwithstanding the fear or reality of tendentious or inaccurate reporting. The court’s role is limited to determining what can be lawfully reported. The family court should not be injuncting the publication of material on the basis that it is robust, colourful, intemperate or vulgar. Nor should it act to restrict publication of material on grounds it may be defamatory or criminal – those are matters to be dealt with elsewhere.

The President was alive to the fact that the development of the internet, “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”.

The President confirmed in that judgment that there was no reason, in principle, why injunctive relief should not be sought against foreign internet providers, including under the umbrella of contra mundum injunctions (although there is important guidance about questions of service contained in the judgment).

In the course of the judgment in Re J the President reminded us that, “just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers”, and that, although, “The court may…by an appropriate injunction, afford anonymity to other participants in the process, for example, an expert, a local authority, or a social worker…such injunctions…will not readily be granted”.

Hence, it has for some time been absolutely plain that “class claims” in respect of anonymity for social workers or experts “will not succeed”. Rather, they will be the exception to the rule and must be justified by reference to the particular circumstances or particular vulnerabilities of specific individuals.

In that case the court made a contra mundum order, but did so in more limited terms than originally sought, and only after close scrutiny of the purpose and justification for each part of the draft order. This case serves, therefore, to re-emphasise that applications for reporting restriction orders must be carefully thought through and based upon the child’s need for anonymity and privacy; attention must be paid to the specifics of drafting – broad brush blanket orders will not do, and nor will the mere fact of actual or threatened publication of information about the case suffice.

More recently, the President dealt with applications for reporting restriction orders connected with the widely reported case of P (A Child) (dubbed the “Italian C-section” case). The President, following much “strident” and some “inaccurate” reporting of the case, reiterated and quoted the points made in Re J regarding the question of transparency and the proper limits upon the courts limited role in restraining the press, pausing to observe however (apparently by way of subtle criticism) that “comment is free, but the facts are sacred”.

In P (A Child) the President identified that the mother had a compelling argument for being able to speak out, whilst the child had an equally compelling argument for privacy. The question was how to balance and reconcile the two. P’s welfare demanded that neither she nor her carers should be identified – but neither the media nor the mother needed to identify P or the carers in order to tell the story as they wished. It was on this basis, then, that a limited reporting restriction order was made, permitting limited identification of the mother, but not the child.

At paras 43 to 45 of the judgment in P (A Child), the President said: 

Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country. 

The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public? 

The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.

Against that backdrop then arrive, just a month later, the two new pieces of Practice Guidance. And, unsurprisingly, they deal as a preliminary issue with the question of judgments, as foreshadowed in P (A Child) – which of course involved both the Family Court and the Court of Protection.

Probably for practical reasons, the Guidance applies at this stage only to the judgments of Circuit Judges and High Court Judges. And so, ironically, we cannot expect immediately to see the judgment of the District Judge who made the initial interim care order in the P (A Child) case or, at any rate, not as a result of this Practice Guidance.

However, for those judgments to which it does apply there will now be mandatory publication of anonymised judgments where, in the view of the judge, there is a public interest in doing so.

Secondly, in any cases falling into particular categories (which broadly correlate with those which may be controversial, or in which there is likely to be a public interest in publication) and where a judgment already exists in written form (or a transcript has been ordered), the starting point is that permission should be given for the judgment to be published, unless there are compelling reasons not to do so.

Thirdly, the starting point for other judgments is permission to publish on application by a party or the media.

Where a judgment is published, “public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named”. It appears that this is intended to include social workers because, “anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families, unless there are compelling reasons to do so”. This is of course consistent with Re J.

Children should not normally be named unless specific permission is given. It seems likely that a parent who wishes to identify themselves will be given permission to do so providing that can be done without risk of identifying the child (for example, where a parent has been exonerated).

The Guidance makes provision for the legal representative of the Applicant in the proceedings, or in the application (as appropriate) to carry out the anonymisation, and for the costs to be at public expense, joint expense or the Applicant’s expense depending on the circumstances.

The Guidance for Court of Protection cases is in similar terms.

It seems highly likely that, in future, lawyers for all parties involved in these proceedings will need to be more on top of this area of law than hitherto and ready to deal with issues or applications as they arise –  this is most likely in cases which fall into a specified category, and where a judgment is handed down in writing but a party objects to publication, or where there are disputes about the extent of anonymisation required to protect the identity or placement of the child.

The Guidance is unlikely to bite regularly in private law cases except where there has been, “a substantial contested fact-finding hearing at which serious allegations, for example allegations of significant physical, emotional or sexual harm, have been determined” – but, in future, the Guidelines may be refined or expanded. There will still, however, be a need to be alive to these issues in such cases, although it is unclear how the practical issues such as cost and anonymisation will operate where there are unrepresented parties.

Although the Practice Guidance issued so far does not deal with reporting restriction orders, that Guidance must be understood in the context of cases like Re J and P (A Child) (and the extensive authority that they each cite), and in the knowledge that, where more judgments are published, more issues surrounding what can and cannot be reported or discussed online or in print will inevitably arise.

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