Transparency, as we are repeatedly being told, is now the name of the game for the family justice system. In all things we must be open, providing the public with a full picture of the activities of the system, thereby disproving the argument that we operate a system of secret and unaccountable justice.
This is all well and good but there is, of course, a problem: how do we operate an open system whilst at the same time protecting the children that are caught up within the system? After all, identifying children and disclosing personal details of their private lives (and the private lives of their parents) is hardly going to be conducive to their welfare.
This was the conundrum faced by Alex Verdan QC (sitting as a High Court judge) in the recent case Re Alcott, now better known as the case in which the actress Katy Ashworth was accused by her former partner of abducting their child (who is aged nearly three) from Australia. To very briefly recap, Ms Ashworth’s partner Ben Alcott claimed that she had agreed to live with him in Sydney and that her bringing the child to the UK amounted to an abduction. Mr Alcott therefore made an application under the Hague Convention on International Child Abduction for the child to be summarily returned to Australia. However, Alex Verdan QC found that the child was not habitually resident in Australia, and therefore dismissed the application.
All of that was contained in the main judgment in the case. However, there was a second judgment, dealing with the issue of publicity. Specifically, there was an application made on behalf of various newspapers which put four questions in issue:
- Should the judgments in the case be published?
- Should the parties be named?
- Should the child be named?
- Should the parties’ evidence be reported?
I will deal with each of these in that order.
I suppose the easiest question for Alex Verdan QC to answer was in respect of the publication of the judgments. In his practice guidance on Transparency in the Family Courts the President made quite clear that publication was to be encouraged, and here neither party objected. Permission was therefore given for the judgments to be published, although Alex Verdan QC made clear that his main judgment had been “carefully crafted to avoid the sensationalist detail”. As I said here the other day, I think it is a good thing that a case like this receives publicity in the general media, and obviously publication of the judgments, from which the media can extract accurate information (if they choose to do so), is a helpful thing.
However, linked to the issue of publication of the judgments was the more difficult question of whether the judgments should name the parties. The arguments put forward on behalf of the newspapers included the usual ones relating to public interest (Ms Ashworth is claimed to be a “public figure”, although I confess I had never heard of her previously) and also that the parties had already been identified by an Australian newspaper. Alex Verdan QC was persuaded by these arguments “on the unusual and specific facts of this case” and therefore directed that the parties should be named.
This, however, leads to what I find to be an odd outcome regarding the issue of naming the child. Alex Verdan QC found that the child did need some protection, and therefore directed that he should not be named in the judgments. He also made an order prohibiting the publication of the child’s name during his minority. However, as the identity of the parents is known it will be a simple matter for anyone to find out the identity of the child, if they don’t know it already. This seems to me to make any attempt to protect the child pointless. Alex Verdan QC justified his decision by saying that he thought the likelihood of harm was relatively low, and by pointing out that the reality was that identification was already possible, given the media reports that had already been published.
That just leaves the issue of the reporting of the parties’ evidence, which is perhaps the most interesting part of the publicity judgment. The application by the newspapers in this respect was refused, for the following reasons. Firstly, the main judgment “provided sufficient detail to explain the outcome and satisfy the legitimate public interest”. Secondly, there was no legitimate public interest in a report of the evidence which would be a significant interference with the parties right to respect for private and family life and pose a risk of harm to the child’s welfare if it was reported, given that the evidence included full details about his parents’ private lives. As Alex Verdan QC said:
“The real public interest in knowing about the detail of these matters is minimal; on the contrary the interest would be inappropriately inquisitive, prying, prurient and voyeuristic.”
And that is, of course, the main question with so many applications by the media in respect of reporting family cases: what is of genuine public interest, and what is not? The question is even more important where children are involved: it is bad enough to publish voyeuristic material that adversely affects adults, but it is another thing entirely if it adversely affects the welfare of a child.
So the effective outcome of all of this is that everything about the case goes into the public domain, save for the details of some of the evidence. That, I suppose, provides some protection for the child, but not a lot (after all, if it is known that there are salacious details to be had about a case, then there will be some who will seek them , or even manufacture them). However, whether the case has struck the right balance between promoting transparency and protecting the child, I’m not so sure. That is not to criticise Alex Verdan QC – he, like all family judges these days, found himself between the seemingly irresistible force of transparency and the once immoveable object of child protection.