Transparency – a lesson from the Family Division

Most of us are unequivocally and absolutely in favour of transparency, writes Nicholas Dobson. We rejoice in the powerful purgative disinfectant of daylight, considering it a thoroughly ‘Good Thing’.

That is of course so long as it concerns the affairs of others. For when it comes to ourselves, we may possibly feel a touch more circumspect. So, for instance, Tony Blair, speaking on 25 March 1996 at the Campaign for Freedom of Information's Annual Awards Ceremony (before he and his party came to power), waxed lyrical about the Freedom of Information Act Labour was proposing if it won the forthcoming election:

"Our commitment to a Freedom of Information Act is clear, and I reaffirm it here tonight. We want to end the obsessive and unnecessary secrecy which surrounds government activity and make government information available to the public unless there are good reasons not to do so. So the presumption is that information should be, rather than should not be, released."

And, concluding his speech on an upbeat note, he asserted that:

"A Freedom of Information Act is not just important in itself. It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people and delivering not just more open government but more effective, more efficient, government for the future."

However, if as someone once said, a week is a long time in politics, then four years is an eternity on steroids. For in his September 2010 autobiography, Blair’s evangelistic enthusiasm for Freedom of Information had sickened well beyond the bounds of mortality:

"Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it."

For once he had:

". . . appreciated the full enormity of the blunder, I used to say - more than a little unfairly - to any civil servant who would listen: Where was Sir Humphrey when I needed him? We had legislated in the first throes of power. How could you, knowing what you know have allowed us to do such a thing so utterly undermining of sensible government?"

But although Tony Blair may bitterly regret opening what he now seems to regard as Pandora’s Open Government Box, transparency in public affairs is now the expectation of the age. There is a clear expectation that public information and lawful comment should not be suppressed in the absence of sound justification. And the courts tend to reflect the zeitgeist.

Re J (A Child) [2013] EWHC 2694 (Fam)

So it was (in a different context) that on 5 September 2013, Sir James Munby, President of the Family Division gave a thoughtful and thorough judgment in a case concerning Staffordshire County Council 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."

His Lordship noted that 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 case concerned a child, J, who was born in April 2013. Two of J’s siblings had been adopted (following care and placement orders) and a third, born in April 2012, was made the subject of an emergency protection order on the day of birth. J’s father had posted much material about J’s siblings on the internet, using language which ‘on occasions was abusive, insulting, threatening and, indeed, highly offensive’. Images of the children and social workers had been posted and in May 2012, the father posted on Facebook a copy of a letter written to him by the local authority with accompanying text referring to the social worker as follows:

"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 father announced J’s 4 April 2013 birth on Facebook, including the words: "SS banging on the door we're not answering" and "ss gone to get epo". Munby LJ very much doubted that ‘SS' was here being used as an innocent acronym for the local authority's social services. For 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." However, whilst grossly offensive and insulting, no such finding was made against the father. Nevertheless, the Court was willing to proceed on the assumption that the father’s intent was to encourage readers to make the comparison.

The local authority’s application

The Council therefore sought a reporting restriction order, an injunction ‘contra mundum’ (affecting the whole world) in extremely wide terms if the reporting etc is likely to lead to the identification of the child in relevant legal proceedings or related specified contexts. This applied to J until the child’s 18th birthday and sought to prohibit "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 very extensive suite of information.

This included the names and addresses, not only of the child and its parents but also anyone having day to day care or medical responsibility for the child, the local authority in question or any employee or other specified class of such person (including social workers and the authority’s legal representative), the child’s Guardian and any venue at which the parents have contact with the child. Also prohibited was any "picture, image, voice and/or video recording of and including the child, the child's parents, any employees of the Local Authority.... and the Children's Guardian" and any ".... other particulars or information relating to the child".

Legal framework

The Court noted that: ". . .the 'automatic restraints' on the publication of information relating to proceedings under the Children Act 1989 are to be found in section 97 of that Act and section 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of "material which is intended, or likely, to identify" the child. But this prohibition comes to an end once the proceedings have been concluded . . . Section 12 does not protect the identity of anyone involved in the proceedings, not even the child. . . So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers."

Whilst the court has power "both to relax and to add to the ‘automatic restraints’’, in exercising this jurisdiction, the court must conduct a balancing exercise necessitating (per Lord Steyn in Re S [2004] UKHL 47) "an intense focus on the comparative importance of the specific rights being claimed in the individual case". For it is "necessary to measure the nature of the impact.… on the child" of what is in prospect.

However, whilst the court may by an appropriate injunction afford anonymity to other participants in the process, this "should not be extended to experts, local authorities and social workers unless there are compelling reasons".

Transparency

Sir James Munby gave a pungent evaluation of the need for transparency in the relevant context. In the course of this he made the observations detailed below. Because of their importance in this context (and arguably beyond) I have quoted from and outlined his comments extensively.

• There is a pressing need for more transparency, indeed for much more transparency, in the family justice system.
• 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.
• Although the courts "strive to avoid miscarriages of justices" nevertheless, "human justice is inevitably fallible".
• Consequently, 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".
• Open and public debate in the media is essential.
• Sir James emphasised "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".
• 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.
• 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.
• 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.
• Consequently: "freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving."
• The remedy. . . is publicity for the truth which lies concealed behind the unfounded complaints, "more speech, not enforced silence." [1]
• As to the age of the internet, Sir James said the "law must develop and adapt, as it always has done down the years in response to other revolutionary technologies". It is unacceptable simply to "throw up our hands in despair and moan that the internet is uncontrollable". Basic legal principles (including freedom of expression and transparency) must be adhered to.

The court’s decision

His Lordship considered the relevant law surrounding injunctions and foreign defendants. He noted (per Butler-Sloss LJ in Wookey v. Wookey [1991] 2 FLR 319) that an "injunction must serve a useful purpose for the person seeking the relief and there must be a real possibility that the order, if made, will be enforceable by the process in personam.". And there are two separate principles in play:

1. The person who is to be injuncted must be amenable to the court's jurisdiction.
2. Because equity does not act in vain, the court will not grant an injunction which is idle and ineffectual.

Bearing in mind earlier comments on transparency, Sir James said that "an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented on the internet, nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be". For the only justification is if restraint is required to protect J’s Article 8 rights and in particular the child’s privacy and anonymity.

In all the circumstances (and bearing in mind that although a baby can be identified by name it is almost impossible for anyone but a parent to identify a child at that stage merely by appearance), the Court considered that there seemed to be: ".... 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."

Sir James said that the effect of this is that:

1. the essential vice – the identification of the child – is in large measure prevented;
2. internet searches are most unlikely to provide any meaningful 'link' in the searcher's mind with the particular child; and
3. 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.

Consequently, he granted a ‘contra mundum’ injunction covering the width of publication sought and to last until J’s 18th birthday. However, this was simply in relation to the names and addresses of the child and the child’s parents.

Comment

Local authorities and their staff (and particularly, for these purposes, those involved in child protection) work unremittingly hard in a vital and frequently stressful area of work where they often feel "damned if they do and damned if they don’t" by both public and press. Caution about publicity is therefore entirely appropriate and understandable.

Nevertheless, this judgment does provide some valuable proportionality context. This is so that the real purpose of family law secrecy and confidentiality is not confused and broadened beyond its proper bounds to prevent publication of material which, whilst possibly abusive or insulting to the authority or its staff, nevertheless does not affect the legitimate interests of the child in question. As the Court pointed out, there are alternative remedies for criminal or defamatory publications.

Constantly to be borne in mind is (as Sir James put it) "the right of the public to know, the need for the public to be confronted with, what is being done in its name". For public power is of course conferred for the benefit of the public and not for that of those who wield it.

Dr Nicholas Dobson is a Consultant with Freeth Cartwright LLP specialising in local and public law. He is also Communications Officer for Lawyers in Local Government.

© Nicholas Dobson

Staffordshire County Council, the law firm that brought the proceedings, are also writing an article on the case for Local Government Lawyer.