Re. J (A Child): the family justice system meets the “realities of the internet”

Family Law|September 5th 2013

A new judgment handed down by Lord Justice Munby examines, in his words, “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.” Of particular note to readers is the Family Division president’s detailed look at how the court should adapt its practice to “the realities of the internet, and in particular social media.”

Background

Re. J (A Child) [2013] EWHC 2894 (Fam)  centres upon J, a child born in April 2013. J has three older siblings, L, C and W, all of whom have been the subject of care proceedings. Both J and W, who was born in April 2012, were made subject to emergency protection orders on the day of birth.

The father of the four children has published “much material” about the children on the internet. After W was born, he took photographs of W and a social worker in the hospital delivery suite. He published these photographs, along with the social worker’s name, on Facebook. In May 2012 he published a copy of a letter written to him by Staffordshire County Council, also on Facebook. The text that accompanied the photograph read:

“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 following month a contra mundum (worldwide) reporting restriction, which remains in effect until 2030, was made in relation in W.

In April 2013, J was born at home and the father announced the birth on Facebook. His update included the words: “SS banging on the door we’re not answering” and “ss gone to get epo”. He filmed the execution of the emergency protection order later that day – covertly, according to the local authority – and the video was published on YouTube by a website called UK Column Live. J was referred to by name in the video. The video was “much ‘shared'” on Facebook. An interview with the J’s parents, in which J and W were identified by name, was subsequently published online by UK Column Live.

In June 2013 the father admitted breaches of the order made in 2012, and was sentenced to six weeks’ imprisonment for each breach. The sentences were suspended on condition that the father complied with the various orders and undertakings.

Although some of the material was removed, other material about J and the other children remained on the internet, for example on UK Column Live and also on Facebook.

 

Application

In June 2013, Staffordshire County Council applied for a contra mundum reporting restriction in relation to J. It was proposed that the restriction would remain in force until 2031, when J turned 18. The draft order contained the following paragraphs:

3. This order prohibits 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) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to

this order;

(ii) The Child’s parents (“the parents”), whose details are set out in Schedule 2 to this order;

(iii) Any individual having day-to-day care or medical responsibility for the Child (“a carer”);

(iv) The Local Authority named in Schedule 3 of this order;

(v) Any employee of the Local Authority named in Schedule 4 of this order;

(vi) The Child’s Children’s Guardian named in Schedule 5 of this order;

(vii) Any venue at which the parents have contact with the child.

(b) Any picture, image, voice and/or video recording of and including the child, the child’s parents, any employees of the Local Authority as specified above and the Children’s Guardian.

(c) Any other particulars or information relating to the child

IF, BUT ONLY IF, such publication is likely whether directly or indirectly to lead to the identification of the child as being:

(i) A child subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002; and/or

(ii) A child who is or has been the subject of allegations of abuse; and/or

(iii) A child who has been removed from the care of her [sic] parents; and/or

(iv) A child whose contact with her parents has been prohibited or restricted

No publication of the text or a summary of this order (except for service of the order …) shall include any of the matters referred to in this paragraph.

4. This order prohibits any person from seeking any information whether directly or indirectly relating to the child or the parents or a carer from any of the following:

(a) The child;

(b) The parents;

(c) A carer.

The application came before Sir James Munby for a hearing on 27 June 2013. The judge approved the application but ordered some of its key paragraphs to be struck out, for the reasons below.

Transparency and the internet

In his judgment, Sir James Munby pointed to the fallibility of human justice and  highlighted the “pressing need” for increased transparency within the family justice system:

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

The judge continued:

It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. 

Pointing out that freedom of speech is “not something to be awarded to those who are thought deserving and denied to those who are thought undeserving”, he concluded that the remedy was “more speech, not enforced silence”.

Sir James Munby also emphasised that material published online was published there indefinitely and, particularly when internet providers were located in other countries, it could be a challenge to enforce orders relating to materials published online when those orders were made in England and Wales.

 

The discussion

It was highlighted that the court should not exercise its powers to grant a contra mundum injunction if the interests of the child can be protected by an order under section 39 of the Children and Young Persons Act 1933 – but  that the “rather elderly” section 39 did not extend to the internet or social media.

Sir James Munby also took exception to the paragraphs in the draft order which aimed to prevent the identification of the local authority, any employee of the local authority, the Children’s Guardian (a Cafcass employee) and other details relating to the local authority’s role in the removal of the child. His comments were scathing:

In the first place, I simply fail to see how naming the local authority, the social workers, the local authority’s legal representative or the children’s guardian, or even all of them, can in any realistic way be said to make it “likely” that J will be identified, even indirectly. The risk is merely fanciful. But if this is so, then inclusion of reference to them is apt to mislead. The casual reader may think that the order prohibits the naming of any of them. The more careful reader will realise that this is not so, but may nonetheless assume that the court thought that naming them might lead to the identification of the child and may thus be deterred from doing so for fear of falling foul of the order. Either way, the effect is highly undesirable, tending as it does to confer indirectly the very anonymity which the court did not intend. All this verbiage must be removed, for otherwise it is likely to have a seriously chilling effect. When I put the point to Mr MacDonald [Alistair MacDonald QC, acting for the local authority] he did not demur. A similar point can be made about paragraphs 3(a)(iii) and (vii) and 3(c). The wording of paragraph 3(c) in particular – “any other particulars or information relating to the child” – is very wide, indeed unlimited. It would potentially embrace almost everything in paragraphs 3(a)(iii)-(vii) were they to be omitted, as well as much more besides. So if they are to go, so too should paragraph 3(c). Surely all that is needed at most are paragraphs 3(a)(i) and (ii) and the first part of paragraph 3(b).

As a quite separate point, what is the justification for including paragraph 4, in particular paragraph 4(b)? It is very widely phrased, preventing anyone from seeking, for example from the father, “any information” relating not merely to J but also to the father himself. The father wishes to share such information with others and, so long as he keeps within the confines of section 12 of the 1960 Act, why should he not be able to do so? And why should those who may wish to hear his views not be permitted to approach him? On one view this is in effect, if not intention, a means of indirectly gagging the father so that what from the local authority’s perspective are his unpalatable views are less likely to see the light of day. It is one thing to say that something shall not be published if and insofar as it is prejudicial to J; this is very different and far more sweeping.

However the central issue was identified as follows: “Is there justification for extending J’s anonymity beyond the point, almost certainly in the near future, at which section 97 of the 1989 Act ceases to bite?”

Section 97 of the Children Act 1989 prohibits the publication of “material which is likely, or intended, to identify a child.”  The prohibition comes to an end when proceedings have been concluded but the court may, if appropriate, extend the child’s anonymity.

Submissions from Alistair Macdonald QC, for the local authority, made the following arguments:

  • Neither section 97 nor the injunctions granted against the father had been sufficient to control the appearance of the material on the internet.
  • The publicity and identifying materials could discourage potential adoptors of J.
  • The graphic material available to all online could mean that when J is older, J is bullied.
  • The publication that had already taken place, along with potential future publications, engaged J’s Article 8 rights (the right to respect for one’s private and family life) under the European Convention on Human Rights.

Decision

Sir James Munby ruled that an order was justified – but not an order as “wide” as that sought by Staffordshire County Council.

Because of the age of the child in the case – a newborn, when filming took place – he identified a “crucial difference” between restraining publication of the child’s name and publication of images of the child:

The reality is that although anyone can identify a baby by its name it is almost impossible, unless you are the parent, to distinguish between photographs of children of that age who have the same general appearance. Second, the reality, at least with current domestic technology where searches of the internet are by word (name) and not image, is that unless you have a name, or a mass of other identifying details, it is going to be very difficult, if not impossible, to locate anonymous postings about an individual. Third, in a case such as this, although there may be a powerful argument for asserting that the baby who features in a filmed episode should not be named, there are at least as powerful arguments for asserting that the publication on the internet of film such as I am concerned with here, commenting on the operation of the care system and conveying a no doubt powerful and disturbing message, should not be prevented merely because it includes images of the baby.

 Accordingly, he ruled 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.”

He granted a contra mundum injunction, to last until J’s 18th birthday, but ordered that the following paragraphs of the draft were to be omitted:

3. This order prohibits 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) The names and addresses of:

(i) The Child, whose details as set out in Schedule 1 to

this order;

(ii) The Child’s parents (“the parents”), whose details are set out in Schedule 2 to this order;

(iii) Any individual having day-to-day care or medical responsibility for the Child (“a carer”);

(iv) The Local Authority named in Schedule 3 of this order;

(v) Any employee of the Local Authority named in Schedule 4 of this order;

(vi) The Child’s Children’s Guardian named in Schedule 5 of this order;

(vii) Any venue at which the parents have contact with the child.

(b) Any picture, image, voice and/or video recording of and including the child, the child’s parents, any employees of the Local Authority as specified above and the Children’s Guardian.

(c) Any other particulars or information relating to the child

IF, BUT ONLY IF, such publication is likely whether directly or indirectly to lead to the identification of the child as being:

(i) A child subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002; and/or

(ii) A child who is or has been the subject of allegations of abuse; and/or

(iii) A child who has been removed from the care of her [sic] parents; and/or

(iv) A child whose contact with her parents has been prohibited or restricted

No publication of the text or a summary of this order (except for service of the order …) shall include any of the matters referred to in this paragraph.

4. This order prohibits any person from seeking any information whether directly or indirectly relating to the child or the parents or a carer from any of the following:

(a) The child;

(b) The parents;

(c) A carer.

 

Summary

  • Pressing need for transparency.
  • Open and public debate in the media is essential.
  • There is a clear and obvious public interest in maintaining the confidence of the public-at-large in the Courts.We need “more speech, not enforced silence.”
  • Freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving.

 

Note: this post about the judgment was compiled by the Stowe Family Law team.

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Comments(5)

  1. Luke says:

    This seems to be a sensible decision by the Judge to me – and frankly a rebuke to the Local Authority which clearly wants to operate without any form of public scrutiny – which in my experience is not untypical of Local Authorities…

  2. Stitchedup says:

    “Pointing out that freedom of speech is “not something to be awarded to those who are thought deserving and denied to those who are thought undeserving”, he concluded that the remedy was “more speech, not enforced silence”.”

    Having had at least two posts moderated out recently I guess I fall into the category of “undeserving” given I have a conviction for talking to my ex after she started a conversation with me. Claealrly put into the ames category as a violent wife beater or FGM practitioner. This is why family law and the professionals involved come in for so much criticism.

  3. Stitchedup says:

    Taken from my loal paper this week

    http://www.barry-today.co.uk/news.cfm?id=30584&headline=Mother%20is%20jailed%20for%20making%20false%20allegation

    Mother is jailed for making false allegation

    Friday, 06 September 2013

  4. Stitchedup says:

    “In his judgment, Sir James Munby pointed to the fallibility of human justice and highlighted the “pressing need” for increased transparency within the family justice system”

    Fallible indeed!

  5. Tulsa Divorce Lawyer Matt Ingham says:

    Here in Tulsa Oklahoma USA our family justice system has made huge strides the past 7 – 8 years with regard to internet advancements and accessibility.

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