I’ve just read a short judgment of Mr Justice Holman. It’s not a judgment that says anything of great legal importance. All it does is relax the terms of a reporting restriction order. However, the consequences of the judgment are significant, giving the media another blunt instrument with which to bash the family justice system.
My views on the great transparency debate will be well known to any regular reader of this blog (see, for example, this post). Now, its supporters say that more transparency is needed to enable the public to understand the workings of the family justice system. A laudable aim but, as we shall see, one that suffers from a significant delusion: the media are not interested in the true workings of the family justice system. All they are interested in (and this is hardly rocket science) is a story that will sell newspapers. The great newspaper-buying public don’t want to hear about how the family justice system really works, they just want to be reminded how awful our secretive family courts are, as they have been told (by the media) many times before. And if the story pulls on the heart-strings and has a salacious element, all the better.
And so it was here. The judgment, S v H & B, related to a case where a child, now aged nearly two, was conceived as a result of a private arrangement between two men who live together in a settled relationship (who I shall call ‘the fathers’), and a woman. The woman is the genetic mother of the child – she carried the child and bore her, and the child lived with her for a period following her birth. However, in April this year Ms Justice Russell made an order that the child should live with the fathers.
Ms Justice Russell also made a strict reporting restriction order, to protect the identity of the child and her carers. This order “put some considerable restrictions upon the mother’s freedom to communicate information about the proceedings”. It was made because information about the case had been published on social media, and Ms Justice Russell found that it was more likely than not that the source of the information had been the mother.
After the order was made the mother, funded by Associated Newspapers who publish, amongst other journals, the Daily Mail, applied to the court to vary the terms of the reporting restriction order. The application went before Mr Justice Holman. The parties agreed to the mother being able to communicate with the press with regard to the facts and circumstances of the case, provided that nothing is published which is likely directly or indirectly to identify the child or the fathers. It was also agreed that the mother could supply, and the press could publish, a photograph or photographs both of herself and of the child, provided that it is sufficiently pixelated or otherwise obscured that it is impossible to identify or recognise either her or the child. Mr Justice Holman discharged the original reporting restriction order and made a new one to reflect this agreement.
The Daily Mail has since published its story. Well, I say ‘its’ story – it is actually the mother’s story, beginning with an emotive description of how the child was wrenched from her arms “amid the bleak surroundings of a public coffee bar inside London’s High Court of Justice”. As such, it obviously presents only one side of the story, along with the Mail’s own comments about ‘secretive family courts’ “in which judges are imposing their own values on courts and all too often spurning centuries-old wisdom about family life”, a feminist judge who “is both unmarried and childless” (with the clear implication that these matters affect her judgment) and “the breakdown of values in modern Britain”. The pixelated picture of mother and child also appears, although it is of course indistinguishable from a pixelated picture of any mother and child.
What is not mentioned in the story, save in passing in a brief quote from one of the fathers, is the reason why Ms Justice Russell made the decision that she did. Like all family judges deciding issues relating to children, she considered what was in the child’s best interests. Taking into account all of the relevant factors, in particular those set out in the welfare checklist, she decided that it was in the child’s best interests to live with the fathers (as recommended by the child’s guardian). Nothing to do with imposing values upon anyone – just to do with what she considered was best for the child’s welfare. Quite different, then, from the impression given by the story in the Mail.