Keeping mum – new guidance to protect anonymity of children in family courts

Posted: 16/11/2016

The welfare of children has always been at the forefront of the family justice system. In May 2015 Kate Molan and Lucy Cummin wrote an article for New Law Journal called ‘Keep it in the family’ which was subsequently republished by LexisNexis for circulation at the Resolution conference.

The article detailed how the President of the Family Division, Sir James Munby, had issued a consultation paper aimed at understanding whether there was a need for the family courts to become more transparent as a way of instilling greater public confidence in the family justice system. The consultation dealt with four main issues, namely the publication of judgments, court listing descriptions, disclosure of confidential documents and hearings in public.

At the time of this article, the Association of Lawyers for Children (ALC), Resolution, and Penningtons Manches had all provided publicly available formal response papers and, understandably, the contents of the consultation paper generated a significant debate among practitioners and associated organisations. None of the three responses mentioned above supported an increased intrusion of the media in family proceedings.

A key document informing these responses was a report prepared by Dr Julia Brophy on the views of young people on media access to the court. Her report considered a number of specific issues including media access to family court hearings, restrictions on reporting during and after proceedings and the potential impact on children of increased media reporting.

The findings of the report suggested that, while young people and children have a good awareness about the media and ways in which news is transmitted, they regarded the media with an element of mistrust and viewed it as a commercially motivated industry. A significant problem highlighted by the Brophy report was that of "jigsaw identification" where the individual facts of a case, if published, could lead to children being identified and increasingly vulnerable as a result.

The issues of publication and anonymisation of judgments, and reporting restrictions in the family courts are as current as ever, with the recent case of Re X (A Child) (No 2) [2016] EWHC 1668 (Fam), [2016] All ER (D) 47 (Jul) providing guidance on applications for reporting restriction orders (RROs).

Re X (A Child) (No 2)

This case concerned an application for a RRO in respect of a judgment handed down in public by Munby P and which was sent by him to BAILLI. The fact that the judgment was openly handed down was explicitly recorded on the front of the judgment which did not contain the common rubric used for giving conditional permission for the reporting of judgments handed down in private. The judgment was circulated to the parties' legal representatives prior to being handed down, none of whom raised any issue about the judgment being given in open court or the absence of the usual headnote.

Once handed down, a legal blog posted a detailed report of the judgment in which the birth parents of the child concerned were named and a link was included to a newspaper article involving the birth parents. In light of the background, Munby P's judgment states clearly that the blog was fully entitled to publish the information and material and should not be criticised.

One of the solicitors then contacted BAILII asking for the judgment to be removed from the site to prevent broader awareness of the identity of those involved, following which BAILII contacted Munby P about whether they should agree to remove the judgment. Munby P duly informed BAILLI that it should not be taken down.

The local authority subsequently made an application to Munby P for an RRO and for an injunction preventing the identification of the child concerned (X), the birth parents and the adoptive parents. Upon this application, Munby P granted an RRO as sought which would be in force for a very short period of time. The return hearing heard arguments from the Press Association as to whether the RRO should remain in force until the next directions hearing in the substantive case.

Munby P concluded that the RRO should remain in force and anonymity should be maintained for the time being, despite the fact that the birth parents had already been identified in the public domain. The rationale for doing so was to ensure further protection for X and the adoptive parents from any enhanced publicity that may ensue. The RRO was extended until the conclusion of the next directions hearing.

Munby P's judgment in this case gives helpful guidance on making an application for a RRO, emphasising that parties must comply meticulously with the requirements of the practice direction (FPR 2010, PD12I), as concerns had been raised about a failure in such applications to give proper notification to the media. The notice must also give sufficient information about the identity of the child to allow the media to oppose the application for the RRO should they wish to do so.

Munby P described the request sent to BAILII to take down the judgment as misconceived and made it clear that it is the responsibility of the judge alone to decide whether to send a judgment to BAILII and also to ensure that the correct version is sent and has been appropriately anonymised. It is therefore also for the judge alone to decide whether BAILII should be invited to take a judgment down and any such request for removal must be made to the judge and not to BAILII. The case highlights the need for judges to give careful consideration to the level of anonymisation in judgments prior to publication.

Anonymisation of judgments

Munby P's clear pronouncement in Re X that it is the judges who bear responsibility for appropriately anonymising judgments is timely given that Dr Brophy prepared some draft guidance in her August 2016 report on the anonymisation of judgments with the support of the President of the Family Division (although the guidance is not, at present, judicially approved).

In preparing the guidance, Dr Brophy has taken advice from a number of senior judges, lawyers, welfare and clinical experts, and the National Youth Advocacy Service. The draft guidance is the latest part of a broader project pursued by Brophy about the privacy, welfare and safeguarding needs of children in the context of the "transparency agenda for family courts". The draft guidance draws on findings from a review of children judgments on BAILII in 2015 and 2016, looking at such issues as geographical or personal identifiers of individual children and the potential for jigsaw identification of children. The draft guidance also deals with descriptions of the sexual abuse of children in judgments intended for the family arena.

The objective of the guidance is to suggest practical ways to support judges in securing children's anonymity in judgments and it is structured by way of a checklist.

The checklist deals with some "dos and don'ts" for personal and geographical indicators in judgments and jigsaw identification, making suggestions on details such as protocols around the naming of individuals involved and dates of birth (which she classifies as high risk details which would assist in the identification of a child and which are rarely essential to report). Dates of birth are recommended to be cited only by a season or year and, in certain circumstances such as where children come from rural or minority ethnic communities, using the year only. Caution should also be taken when considering using full dates for other relevant events.

Brophy has a number of highly relevant suggestions for the identification of children in judgments who belong to a particular ethnic group or religion as such information can be an identifier with "beyond border implications" and an indicator of geographical location or community. Her sensible recommendation in this regard is that, where it is not relevant to the issues before the court, the ethnic group should not be referred to in the judgment and judges should consider using more generic wording and only refer to religion where substantive issues indicate that it is relevant and should be addressed.

Brophy's guidance also recommends against naming the local authority involved (as this may be a geographical identifier), detailed depictions of any issues or problems at school or education, and the naming of social workers, family support workers or local family resources or assessment centres which could assist in identifying a young person. Similarly specific details of treating physicians, expert witnesses and even the trial court and judge, should only remain in the judgment where any risks of jigsaw identification have been eliminated as far as possible.

Dr Brophy's draft guidance is hugely practical and should provide valuable assistance to judges in making decisions as to how to anonymise judgments sufficiently to protect both the parties and children involved. It is understood that the draft guidance will be considered by the President of the Family Division and will assist him in putting forward judicially-approved guidance in due course. More generally, the draft guidance will hopefully be of use to the President in driving forward the transparency agenda in the family arena while, at the same time, making sure that young people and children continue to be sufficiently safeguarded in the family courts.

This article was published in New Law Journal in October 2016.

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