What next for media access to the family courts?
On 01 December 2013 the press ‘broke’ the ‘saga of baby snatched from the womb’. We were told firstly by the Sunday Telegraph, that a mother who suffered ‘something of a panic attack’ five weeks later was forcibly sedated and woke up hours later having had a caesarean section, and her baby taken into care. It was stated that the Court had given social workers permission to arrange the operation, then the mother was escorted back to Italy and the child placed for adoption in quick succession. The MP John Hemming was quoted as saying ‘I think this has a fair chance of being the worst case of human-rights abuse I’ve ever seen’ and that he hoped this ‘would shock people out of their complacency about the corrupt practices in the family court’. As someone who spends a lot of time in the family courts acting for parents and children in care proceedings, I wanted to know more as the ‘facts’ in the press did not seem to add up. I overheard many conversations about this case, given my job I have been asked about it by friends and family, with the majority believing what they had read in the national newspapers that Social Services had unfairly and unjustly arranged for this mother to be forcibly separated from her baby, in the most extreme and distressing of circumstances. The articles that were written were emotive and, we now know, factually inaccurate, vilifying the ‘actions’ of Essex County Council. They were written at the time before the Judgments had been published.
We now know that in fact it was the treating health trust that applied to the court for permission to operate on the mother, the mother was represented through the Official Solicitor and by Queens Counsel, a senior barrister, within the application for permission to perform the caesarean section. It was only after the birth that Essex County Council applied to the Court for an interim care order because the mother was not well enough to provide that care. A judgment in the care proceedings was later made public and we learnt that the mother’s elder two children were living with their grandmother due to the mother being unable to look after them.
The adoption proceedings are on-going and have been reserved to the President of the Family Division Sir James Munby. He has provided Judgment following an application by Essex County Council for an injunction to restrict further reporting (P (A Child) 2013 EWHC 4048 (Fam) 17 December 2013). He considered three competing interests: the public’s interest; the mother’s wish to tell her story; and the child’s claim to privacy and anonymity. He looked at how to balance these competing demands and decided that the mother’s name could be made public but the child must remain anonymous.
The President has now issued guidance on transparency in the family courts and the publication of judgments
This leaves family lawyers wondering whether these developments will serve the public interest, or whether what is interesting for the public will win out. The President’s view is clear: ‘many more judgments must be published’. Currently many family law judgments are available free to the media and the public (through the British and Irish Legal Information Institute athttp://www.bailii.org/) and yet they are rarely reported. Perhaps they are not sensationalist enough to sell papers, but if the aim is to promote a better understanding of what the family courts do, surely it is the ‘everyday cases’ that should be highlighted?
What impact would any widening of reporting rights have on the children involved in these cases? The most important factor should be the views of those children and the potential impact on them of having their identity disclosed.
In research undertaken in 2010 by Dr Julia Brophy (“The views of children and young people regarding media access to family courts, Office of the Children’s Commissioner for England” http://www.childrenscommissioner.gov.uk/content/publications/content_397), almost all children and young people in that independent study feared that information about their case, which may be embarrassing or painful, could appear on the internet or social media sites. There are also fears that children will not talk openly and freely with Social Workers, Guardians or clinicians if they are told that the press may report on their case.
The media already has access to the family courts. At present there are still restrictions on what can be reported, something that clearly troubles some sections of the media. I am sure the media would not intentionally publish something that would lead to a child’s identity being made known, but mistakes happen and anonymity is not guaranteed simply by leaving out names and addresses.
There is also the question of accuracy in any reporting. The initial reporting on the caesarean case must make us cautious, when in the age of the internet there is no getting the genie back in the bottle if a mistake is made. This case suggests that only sensationalist stories will be reported, that would do nothing to provide the public with an accurate view of what is happening on the ground in family law courts up and down the country.