Terrorism, transparency and the protection of children

Family Law|May 23rd 2016

I don’t think I’ve ever written a post about four paragraphs in a judgment before, but there’s always a first time…

I was going to write this post about an entire law report that was published on Friday. However, I’m not going to get past the first four paragraphs, as there is so much going in those paragraphs that there is more than enough to fill a post.

The judgment is that of Mr Justice Hayden in Re S, which was actually handed down last August. It concerned a local authority’s application to extend a reporting restriction order made by Mr Justice Moor, in a case involving the radicalisation of minors. For more details of the case, see this post.

I will go through each of those four paragraphs in turn.

The child at the centre of the case was arrested by the police in connection with terrorist offences. Mr Justice Hayden’s first paragraph tells us that, unfortunately, two national newspapers identified the child as having been arrested. One of the newspaper articles was in hard copy, and the other online. The online article was removed but, as we all know, it is virtually impossible to remove all trace of anything that appears online.

Moving on to the second paragraph, we are told that the local authority took the view that it would not require any great degree of ingenuity to make the association between the arrest and the family (wardship) proceedings concerning the child. This demonstrates the difficulties that can arise when the same child is subject to two different legal procedures, one criminal and one family; more of which in a moment.

Mr Justice Hayden then makes “a few general observations”, and these are the real subject of this post.

Firstly, he says that concerns relating to the radicalisation of minors are a new facet of child protection. He continues:

“Nonetheless, it is important that the professionals involved hold fast to tried and tested principles of comprehensive risk assessment and guard against the kind of moral panic that can all too quickly be generated by what are for many, not just the families involved, highly emotive issues.”

This is essential. The problem may be new, but the legal framework regarding the protection of children has not altered: all involved in these cases must use the same principles as they always do – these cases concern child protection, not matters of national security, which are the concern of the security forces.

In his third paragraph Mr Justice Hayden moves on to the issue of transparency:

“The family justice system has, in recent years, taken great strides to ensure that its work becomes properly transparent to public scrutiny. There is however, and will always be, a tension between that important objective and the equally important obligation to protect children subject to proceedings…”

Confirming what I said here last Thursday, the court, he says, must consistently focus upon the importance of the right of freedom of expression under Article 10 of the European Convention on Human Rights, as well as the right to respect for private and family life under Article 8, “which it instinctively protects”. However, he goes on, the press also has a duty to “recognise that the protection of vulnerable children will always be given considerable weight in a mature, democratic society.”

He concludes:

“The tension between promoting a transparent family justice system and protecting vulnerable children is an essentially healthy one and will always require a careful parallel analysis of competing rights and interests.”

In the fourth paragraph Mr Justice Hayden turns to the issue of criminal and family proceedings. As he points out, such a scenario is not unusual. However, he says, radicalisation of minors “is an issue that the public is understandably anxious about and wherever possible, within the framework that I have just broadly outlined, openness should be the load star.” Despite that, he goes on to agree with the local authority’s assessment that here “protecting the privacy of these children in order to ensure their safety and general welfare must be the priority”:

“I am inclined to think that is the right course but I also consider that the journey of understanding these cases requires to be travelled in a way which promotes wider public understanding of these issues. To inhibit proper public scrutiny of these cases may have unacceptable consequences. An over cautious approach to the protection of children’s privacy may generate mistrust and suspicion. It can, of course, also create a vacuum of information which can be exploited by those with a nefarious agenda.”

Accordingly, in the rest of his judgment Mr Justice Hayden goes through the legal framework and the reasoning behind his decision to extend the reporting restriction order in some detail. I wonder, however, how many members of the media will even read what he says, let alone report upon it. The ideal of promoting public understanding is all very well in theory…

If you want to read beyond the first four paragraphs of Re S, the full judgment can be found here.

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