Report urges halt to publication of judgments online concerning sexual abuse of children pending review amid concerns at “deeply troubling” information available and exposure of vulnerable to further risk

May 18, 2021

There should be a halt to posting judgments concerning the sexual abuse of children, and the removal of those already posted, pending a review and full implementation of guidance on these judgments, a report commissioned by the President of the Family Division, Sir Andrew McFarlane, as part of his Transparency Review has recommended.

The report, Privacy and safeguarding: evaluation of Practice Guidance (2018), also said there should be no automatic presumption of ‘posting’ of public law children judgments, and a pause in posting children judgments pending the operational changes set out in the report.

Written by Dr Julia Brophy and Dr Marisol Smith with Jagbir Jhutti-Johal, the report was funded by the Nuffield Foundation and published by CoramBAAF.

The Practice Guidance 2018 warns that unless these judgments are properly anonymised and graphic descriptions of sexual abuse/rape of children are summarised and abridged, information in these judgments can compromise the anonymity and future safety of children and young people.

“Even if the judgment does not include personal information about a child (for example, a name or age) sometimes information that is specific to a child or their family can be linked to information from other sources (for example, criminal proceedings against a family member) and this can enable the identification of a child,” the report said.

It warned that the information currently available in some family court judgments involving children – and shared online – was “deeply troubling” and might expose already vulnerable children to further risk.

In addition to the “two crucial priorities for judicial practice” of a halt to posting judgments concerning sexual abuse pending a review, and there being no automatic presumption of ‘posting’ of public law children judgments, the report makes recommendations for change including operations changes to better implement practice guidance.

The report calls, amongst other things, for:

An inter-department review of the crime-family interface to achieve an updated practice protocol with regard to the treatment of images (photographs), videos, and narrative of child sexual abuse in documents exchanged, and a judgment intended for the public arena. Use of a schedule of abuse (as used in images in criminal proceedings) should be explored regarding sexually explicit narrative.
With current safeguards “ineffective, and out of date”, family justice needs a vision to address the current dynamic landscape: the policy framework is provided by Checklist 1 (CL1), which aims to assist judges to reduce or eliminate risks to children of jigsaw identification, and Checklist 2 (CL2), which aims to better safeguard children/young people subject to sexual abuse by the use of a summary/abridgment of graphic descriptions of sexual abuse in a public document. “This needs to be delivered through training which should be fully ticketed. The public and young people need to know that judges are fully trained and responsive to this challenge and will exercise their discretion to protect the privacy and safeguarding needs of vulnerable children.”
In order to facilitate future monitoring of Practice Directions, judgments should reference Guidance within a sub-heading titled ‘Law and Guidance’. “Monitoring would be further aided if judicial citations were made more uniform, using a standardised system for all children judgments posted on BAILII. This should be a precursor to any resumption of posting judgments on BAILII concerning child sexual abuse as it would assist monitoring CL2, by making judgments concerning allegations of sexual abuse readily identifiable.”

The report includes the findings of a review of 30 judgments posted on the British and Irish Legal Information Institute (BAILII) website between 2017 and 2020 concerning 80 children. These judgments were drawn from all tiers of the family system.

All judgments were read and analysed by the research team, 12 were evaluated by young people; all findings by researchers were cross checked with those of young people, "results demonstrating a high degree of concurrence".

Overall six out of the 30 judgments were found to contain four or more ‘within county’ markers indicating the geographical location of children. Eighteen out of the 30 contained three or more indicators.

The young people who took part in the research expressed a range of concerns. These included:

The inclusion of ‘cultural markers’ in judgments
The continued naming of certain local authorities, some trial courts and certain local professionals
The fact that all communities have “known families”
The inclusion of extensive and specific details about criminal proceedings concerning parents/others in a household
The cumulative impact of a number of potentially ‘disclosive’ details
The level of detail and history of parental problems and failures in a public document. There is an urgent need to reconsider what was necessary in a public facing document.
The inclusion of “graphic, salacious and multiple descriptions” of sexual abuse of a child in a public document.

The report added that young people welcomed the criticism of professional practice where this failed to safeguard children but argued that ‘naming and shaming’ individuals was not in the interests of children, coming too late to benefit the subject children but with a potential to compromise their privacy, and safeguarding needs.