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Family Law Week: Re O (A Child: The Vienna Convention on Consular Relations 1963 [2021] EWHC 908

Home > Judgments Re O (A Child: The Vienna Convention on Consular Relations 1963 [2021] EWHC 908 The court was concerned with O who was born in 2007 and thus 13 years old at the time of judgment. She is a citizen of the Democratic Republic of the Congo ('DRC') and arrived in the UK around 2nd August 2020. It appears that O’s father died in prison in 2018 and in July 2020 O, her brothers and mother were arrested. O evaded detention and was cared for by a friend of her mother’s K, who eventually brought her to the UK and left her at a bus stop. ___ On the 4th August she was taken into police protection and then placed in local authority foster care. On 14th September the local authority left a message at the Embassy of the DRC in London, notifying them that one of their citizens had been placed in foster care, but received no reply. On 12th November 2020 the court made an interim care order. O missed her family but did not wish to return to the DRC as she believed she would risk being killed if she returned and was strongly opposed to the authorities in DRC being given any information about her. The court found no reason to doubt her account of 'horrific' experiences. O was doing well in and the care plan was for her to remain in foster care and receive psychological help. The discrete issue for the court was to decide if the local authority is under a duty to notify the Congolese authorities that O is the subject of public law proceedings. The local authority and the children's guardian, both sought a declaration that such non-notification was lawful and proportionate The court reserved full judgment until the Issues Resolution Hearing (IRH) but decided on an interim basis that Article 37 of the Vienna Convention on Consular Relations 1963 ('The Vienna Convention') was engaged and that respect for international Conventions would normally impose a duty upon the local authority to inform the relevant authorities in the DRC, but in the circumstances of this case it was 'plainly not in her best interests' to do so. Following the IRH the Judge confirmed this interim decision and provided fuller reasons. The court examined closely the relevant provisions of the Vienna Convention. Article 36 provides that States should keep other States informed with regard to the nationals of one State who end up detained in the other, and that consular officers shall be free to communicate with and visit those nationals of their State. Article 37 imposes a duty on the State who is dealing with a foreign national to inform that person's consulate without delay if a guardian or trustee has been appointed for a minor or person otherwise lacking capacity. However, this is 'without prejudice' to the operation of laws and regulations of the State concerning such appointments. The court therefore confirmed that Article 36 was not engaged but Article 37(b) was. The court referred to the judgment of the former President Sir James Munby in the case of Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam). He set out at paras 47-48 the requirements of 'good practice' in this area which was to allow free communication and access between a foreign national and their consular authority. The court should normally accede to any request by the foreign state for an accredited official to attend hearings and obtain relevant documents. The court should make sure that the relevant consular authority has been told about the foreign national child who is represented by a guardian or litigation friend.  If the court wishes to adopt a different approach then it is essential to hear submissions and set out clearly the reasons for its decision. The court would need to balance the need for local authorities to respect its obligations under the Vienna Convention (see In Re JL and AO [2016] EWHC 440) while at the same time considering circumstances where the foreign State ought not to be informed. An example of this was given at page six of advice given in July 2014 by the Department for Education,  "Working with foreign authorities: child protection cases and care orders": "Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment." The Vienna Convention, has not been incorporated it into domestic law by an Act of Parliament and so the court therefore needed to consider what binding force it had. As a general and important principle of public policy, the UK should respect the comity of nations and obey an instrument binding under public international law. Therefore the domestic courts are bound to consider Article 37 of the Vienna Convention as a 'necessary but not sufficient consideration in applying domestic legislative duties'. In this case, the court found that Article 37(b) did not impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals. O's case was an example of one of those rare cases where 'it would wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority.' Case summary by Sarah Phillimore, Barrister, St John's Chambers For full case, please see BAILII
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‘My baby was taken away for months over tiny bruises and a fracture that didn’t exist’ | News | The Sunday Times

‘My baby was taken away for months over tiny bruises and a fracture that didn’t exist’ | News | The Sunday Times | Children In Law |
A couple had their baby taken away for nearly three months after tiny bruises on his shins at his eight-week health check set off a child-abuse investigation.They missed his first Christmas and went...
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Adoption: 'Our sons' birth family turned them against us'

Adoption: 'Our sons' birth family turned them against us' | Children In Law |
There are calls for more support for adoptees - as social media searches for birth families rise.
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Care Orders at home, and abandoning search for missing children

Care Orders at home, and abandoning search for missing children | Children In Law |
This is a decision by MacDonald J Manchester City Council v D (Application for Permission Withdraw Proceedings after Abduction) [2021] EWHC 1191 (Fam) (11 May 2021) ( It was a case where three children who were at home with the parents under Interim Care Orders were removed to Pakistan...
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Undoing an adoption order | The Transparency Project

Undoing an adoption order | The Transparency Project | Children In Law |
It’s well known that adoption orders made in England and Wales cannot be ‘unmade’. That is partly why they are sometimes described as extreme, draconian or ‘the last resort’ if made against birth parents’ wishes. We have written about this, and the very few exceptions, here and here. A new judgment from Mrs Justice Theis has just been published, AX v BX & Ors (Revocation of Adoption Order) (Rev 1) [2021] EWHC 1121 (Fam), in which she does set aside adoption orders, and she helpfully reiterates the principles. She describes this application as one to ‘revoke’ the orders but I tend to use the term ‘set aside’ to distinguish this type of application from one to revoke placement orders. A problem is that there is no legislation to define this type of application – it has to be made under the inherent jurisdiction (or possibly as a very late appeal out of time). In the Adoption and Children Act 2002, an application to ‘unmake’ a placement order is clearly to ‘revoke’ and an application to ‘stop’ an adoption order being made is clearly to ‘oppose’, even though the grounds are similar. The important thing to note about this new case is that the adoptees are aged 16 and 18 and were adopted ten years ago. So a very different situation from one where it is likely to be in a young child’s welfare to stay in a settled adoptive home. Background to this case A and B were adopted in 2011, when they were aged eight and six respectively, by Mr and Mrs X. The adoption broke down in 2018 and A has subsequently been living with her birth mother and half siblings and B with another birth relative. At the stage of this application, everyone supported the adoption being set aside. Evidence was submitted about a lack of support at an early stage for the adoptive family. Support for adoptive placements at the early stage, including sensitive management of any transition from foster care, has been shown to be crucial in long term success. (This research is discussed in the recent Family Justice Council seminars). Sadly, A had been removed from a three year foster placement where she had been having contact with her mother to losing all contact with them and she gave evidence that she hadn’t wanted to be adopted. She now has a son who is part of her birth family and the fact that all official documentation records her as the child of Mr and Mrs X cause her great distress. Mr and Mrs X were greatly upset by the breakdown but are now also distressed if and when contacted by agencies as A and B’s parents. Theis J emphasised that although these unusual facts and the highly exceptional circumstances led her to the conclusion that the orders should be set aside, the legal principles were essential to that decision and she restated these at para 80. Legal principles At para 80: (1) An adoption order is a transformative order that changes the child’s status in a way that is intended to be legally permanent. (2) Once made the effect of an adoption order is to extinguish any parental responsibility of the natural parents and any continuing legal relationship between the natural parent and the child. By virtue of s 67 ACA 2002 the child is treated in law as if born as the child of the adoptive parent(s). (3) The only statutory ground for revocation is provided by s 55 ACA 2002 when, pursuant to s 1(7) ACA 2002, the court’s paramount consideration is child’s welfare throughout his life. (4) There are strong public policy reasons for not permitting the revocation of adoption orders once made based on (i) the intended permanent and lifelong nature of such orders; (ii) the damage to the lifelong commitment of adopters if there was a possibility of challenge to the validity of the order, and (iii) the impact on the availability of prospective adopters if they thought the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made. (5) There is jurisdiction to revoke an adoption order under the inherent jurisdiction of the High Court. Any discretion is severely curtailed where an adoption order has been lawfully and properly made and can only be exercised ‘in highly exceptional and very particular circumstances’ (per Webster [149]) (6) Although each case will turn on its own facts, the highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to matters such as a fundamental breach of natural justice. (7) Welfare can, in appropriate cases, be taken into account in deciding whether to exercise the court’s discretion where the highly exceptional and particular circumstances of the case justify it (see Re M, Re B, Re PK and Re O). The extent to which it can, or should be taken into account will vary, depending on the circumstances of the particular case. Decision Applying these principles, the judge concluded that the only factor weighing against the application were public policy considerations; although important, these have to be balanced with the other considerations. Even bearing in mind the important public policy considerations, in these highly exceptional and very particular circumstances. the balancing exercise came down firmly in favour of the orders being set aside. The age of these adoptees is one of the relevant factors. There are some interesting points raised about the use of the inherent jurisdiction to protect someone who has already reached the age of 18, but to have arrived at different outcomes for A and B would have been wrong. It is interesting that Theis J identifies section 1(5) of the Adoption and Children Act 2002 (the child’s welfare is paramount) as the single statutory basis for an application that was clearly never envisaged in that Act. Comment As Polly Morgan has written (Polly Morgan (2020) ZH v HS & Ors (Application to Revoke Adoption Order): three groups of revocation cases, Journal of Social Welfare and Family Law, 42:2, 246-248, DOI: 10.1080/09649069.2020.1751935), it is possible to try to categorise attempts to set aside an adoption into three types: procedural irregularities that have led to a breach of natural justice (may succeed); where the adoption was ill-starred; and where there was a mistake in the court finding the threshold criteria in the care case had been reached (as in Webster). The case of A and B would come within the ill-starred category. However as Polly wrote, such applications are normally: …doomed to failure. In Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 the child, as an adult, sought to appeal his adoption by an Orthodox Jewish couple on the basis of mistake of fact, after discovering his Muslim Arab heritage. The Court of Appeal held that To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would … undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child. The same reasoning has been applied in several subsequent cases, such as Re PW [2013] 1 FLR 96, an unsuccessful application 51 years out of time made on the basis that adoption had had a devastating effect on the applicant adoptee; and Re W (A Child) (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), an unsuccessful application based on psychological benefit to the child in circumstances in which she had been rejected by her adoptive parents. The outlier is PK v Mr and Mrs K [2015] EWHC 2316 (Fam), which also involved an application based on the benefit to the child, but which was successful in ‘highly exceptional and very particular circumstances’ including adopter abandonment and birth family reunification. The outlier of PK appears to have been joined by a second ‘exceptional’ case, for A and B. Image: Thanks to Nick Youngson, the Blue Diamond Gallery, under Creative Commons licence We have a small favour to ask!  The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.  We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.  Thanks for reading!
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Recurrent care proceedings: five key areas for reflection from the research

Recurrent care proceedings: five key areas for reflection from the research | Children In Law |
All professionals involved in the family justice system have long been aware that some parents will experience more than one set of care proceedings. Some parents return to court on many occasions and lose multiple children to public or kinship care, or to adoption. This cycle of returning to court and having subsequent children removed is now commonly referred to as ‘recurrent care proceedings’. There is a growing body of research providing evidence of the prevalence of recurrent proceedings in England and Wales, the circumstances of the mothers and fathers who experience recurrent proceedings, and the impact on them of having children removed in this way. There is also growing evidence from evaluations and from a recent mapping study of the range of services now in existence to support parents who have experienced, or are at risk of experiencing, recurrent proceedings. The evaluations also provide an insight into effective ways of working with parents who have experienced recurrent proceedings. The mapping and evaluations also highlight the gaps in provision for fathers. Most services focused initially on mothers, and although an increasing number of services work with couples, there is little provision specifically for fathers. This briefing note brings together the key messages from this research. It also raises points for reflection for family justice practitioners about the response to mothers and fathers who experience recurrent proceedings.
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Cafcass granted extra £8m for 2021-22 to tackle record caseloads

Cafcass granted extra £8m for 2021-22 to tackle record caseloads | Children In Law |
Family courts body Cafcass to allocate extra Ministry of Justice funding on recruiting social workers to meet demand and alleviate pressures with number of open cases at record high...
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Lies and Lucas in the Family Court

Lies and Lucas in the Family Court | Children In Law |
Andrew Bagchi QC and Anna Lavelle examine an important Court of Appeal ruling on fact-finding hearings and Lucas directions, and considerations of children giving oral evidence in family proceedings.
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Directors give partial backing to proposed asylum reforms for unaccompanied children

Directors give partial backing to proposed asylum reforms for unaccompanied children | Children In Law |
ADCS supports use of evidence-based scientific age assessments, changing criteria for initial checks by immigration officers and establishing national board to oversee system, amid widespread opposition to changes from social work groups and charities...
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Mother wins appeal over lack of due process when she applied for leave to oppose adoption order

Mother wins appeal over lack of due process when she applied for leave to oppose adoption order | Children In Law |
A mother who wished to contest an adoption order was not afforded due process by the Family Court, the Court of Appeal has found.
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Family Law Week: A County Council v M & H & T [2021] EWFC 35

Home > Judgments A County Council v M & H & T [2021] EWFC 35 A local authority’s application not to assess a grandmother as a carer was granted and the grandmother’s application for a Special Guardianship Order or a Child Arrangements Order was dismissed. ___ Due to their young age and an unplanned pregnancy discovered late in the day (amongst other matters), H's parents approached the local authority before the birth of H to arrange an adoption. H was placed with 'foster to adopt' parents.  On learning of this, the paternal grandmother told the social worker she wished to care for H. The parents objected on grounds which included that the grandmother was a single parent of limited means who had suffered episodes of depression. The wider paternal family did not support the grandmother's application. The grandmother then applied for a Special Guardianship Order or a Child Arrangements Order in respect to H, a seven-month-old child. The local authority applied under the inherent jurisdiction for permission not to assess the grandmother as a potential carer. The matter came before Mrs Justice Judd for determination on submissions. The court considered the local authority's duty, under the Adoption and Children Act 2002, to consider the child's wider family as potential carers. Account was also taken of the Adoption Agencies Regulations 2005 and relevant case law. The judge assessed the Children Act 1989, section 10 in regard to applications for leave to apply for a section 8 order. The judge noted: parents do not have a right to have their child adopted; family members do not have a right to an assessment nor, without leave, a right to apply for a child arrangements order. She found that to grant the grandmother's application "would risk disruption to such an extent that H would be harmed" and would "lead to delay to a permanent outcome for H with, in my judgment, very little likelihood of the grandmother's application being successful, even though it would be an alternative to adoption." [50] Due to a careful analysis of H's situation by the Guardian, the judge had sufficient information to determine the grandmother's application without the need for a full enquiry or assessment. The local authority's application was granted and that of the grandmother was dismissed. Case summary by Dr Sara Hunton, Barrister, Field Court Chambers For full case summary, please see BAILII
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‘Fully reporting the evidence heard in care cases requires an expensive and time-consuming application process’ | The Transparency Project

‘Fully reporting the evidence heard in care cases requires an expensive and time-consuming application process’ | The Transparency Project | Children In Law |
This is the view of the Sunday Times in its editorial today, ‘The Sunday Times view on public transparency: A secrecy fixation shrouds decisions that affect us all’, which features a report by Emily Dugan, ‘Our baby was taken from us for months – for a skull fracture that didn’t even exist: A Cardiff couple endured a nightmare after tiny bruises on their son’s legs led to an inquiry into suspected child abuse’. Both these pieces are behind a paywall. We anticipate a court judgment to be published on BAILII shortly, when we will be able to write about the case. The case concerns a misdiagnosis of a fracture in an eight-week-old baby that led to an application for a care order and his being removed from his parents and older brother for three months. The article sets out details of a serious miscarriage of justice and traumatic experience that directly resulted from a mistake made by a hospital paediatrician. It is understandable that the Times says that knowledge of such matters is in the public interest. However, as Emily concludes: ‘Even when parents have been exonerated by the court and had parental responsibility restored, they are not free to talk about what happened to them. A review of transparency in the family court by its president is under way. Change cannot come quickly enough.’ The editorial comments that the publisher had to make a court application and incur significant legal costs to allow Emily’s article to be published, even though the family supported her and were not to be identified. Nevertheless the Cardiff and Vale University Health Board ‘spent taxpayers money’ trying, through the courts, to stop the publicity. [EDITED 17.05.2021. For clarification, the Health Board did not oppose publication in general but wanted a further costly hearing about identifying individual professionals, a hearing which the judge refused, but the article does not name them in any event.] The parents would have been prevented by section 12 of the Administration of Justice Act 1960 from telling a journalist what happened in the court proceedings, or showing her the court papers. Even if they did, she would have not been able to write about it publicly if the section 12 order had not been lifted or partly lifted by a judge – this would be the expensive court process to which the editorial refers. We recently published Sir James Munby’s submission to the Transparency Review, in which he examines the damaging effects of section 12 on public confidence in family justice. More explanation should be possible when we see the judgment. In the meantime, Emily’s report is notable not only for having seen the light of day, but also for its depth and balance.
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Landmark laws to keep children safe, stop racial hate and protect democracy online published

Landmark laws to keep children safe, stop racial hate and protect democracy online published | Children In Law |
The Online Safety Bill will help protect young people and clamp down on racist abuse online, while safeguarding freedom of expression.
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Current provision of Domestic Abuse Perpetrator Programmes

Prior to the pandemic, the family justice system was under enormous pressure with increases in numbers across all areas of public and private family law.[…]...
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Webinar: Newborn babies in care proceedings

Webinar: Newborn babies in care proceedings | Children In Law |
Webinar: Newborn babies in care proceedings 26th May 2021 17:00 - 26th May 2021 18:30 The separation of mothers and babies within hours or days of an infant’s birth is a very severe form of intervention in family life, fraught with ethical, legal and procedural challenges. Nuffield FJO research, carried out by academic teams from Lancaster University and Swansea University since 2018, has revealed that the number of newborn babies who are subject to care proceedings in England and Wales has increased – by more than double in the last decade. The discovery of significant variation in applications to court across the regions has prompted additional concern. Meanwhile, new research to be published this month examines the widespread and increasing use of hearings for the first time. At this webinar, participants will hear from the researchers behind the Nuffield FJO studies as well as from a range of professionals and family members. They will discuss how vulnerable mothers and babies could be better supported to stay together, or humanely and sensitively cared for when that is not a safe option. Practical insights which can help inform decision making will be shared, with the opportunity to join a discussion session at the end. The free webinar will be presented by: Lisa Harker, Director of Nuffield Family Justice Observatory Professor Karen Broadhurst, Director, Centre for Child and Family Justice Research, Lancaster University Dr Lucy Griffiths, Senior Lecturer, Swansea University With a welcome by Sir James Munby, Chair of Nuffield Family Justice Observatory Please register in advance here to join the webinar.
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New ‘Parents Promise’ Initiative launches | The Transparency Project

New ‘Parents Promise’ Initiative launches | The Transparency Project | Children In Law |
More couples discuss what they would do if they won the lottery than how they would co-parent their children in the event of separation, says the Positive Parenting Alliance – a coalition of over 20 children’s mental health charities, separated parenting groups, relationship charities and other invested stakeholders. Now they have created ‘The Parents Promise’ to better protect children affected by family separation, aimed at reducing the long term emotional and developmental impacts that adversarial separation can have on children. Their aims are long-term : “to promote conversation and a change in the UK culture around divorce and separation.  From one that is often adversarial and family court-based, to one of greater adult communication and child-centricity”. The Alliance say that research has found that almost 9 in 10 couples (87%) have talked about how they would spend a lottery win, but just 5% admit to having discussed potential parenting arrangements in the event of a separation or divorce (Online research conducted by Parent Ping in February 2021. Sample of 2,739 parents). This is set against a backdrop of around 280,000 children being impacted by parental separation each year, both from cohabiting relationships that break down and marriages that end in divorce. The Alliance is asking all UK parents to make The Parents Promise – a commitment made today, whilst a couple is still together, about how they will do what’s best for the long-term wellbeing and mental health of their children, should their relationship break down in the future.  Founder and parent James Hayhurst comments: “The Parents Promise aims to change the conversation about parental separation, both within families and in wider society. It’s based on a simple and important concept that, safeguarding concerns notwithstanding, every child has a right to a positive relationship with both parents and that no child should be asked or forced to choose between their parents. It’s not surprising that most couples have not had a conversation about what would happen should they split up. But, for many, it will happen. The ask is simple: open a dialogue with your partner when you are still in love – not at the point of a relationship breakdown – and make a commitment together to put your child first, whatever happens. In doing so, we hope to drive positive behavioural change whereby thousands of couples and their children, will be protected from the devastating, and often avoidable, impacts of an adversarial split.” According to the Family Solutions Group, 280,000 children experience their parents separating every year, with 1 in 3 of those separations going to court to resolve child arrangements. They want to reduce the numbers of families going to court. Joanne Edwards, Family Lawyer and Mediator at Forsters LLP comments: “It is a common misconception that there is no such thing as a good divorce or separation. In fact, for most couples, court does not need to be the default. Often, the problem is that parents are having discussions right at the point of separation, when emotions are raw and the needs of the children can become lost in parental conflict. This is why a simple tool like the Parents Promise is so powerful.  Having a conversation before the point of break up can act as a helpful reminder later down the line that these two people were, and remain, loving parents first and foremost. Whilst a relationship can be ended, a commitment to be a parent is lifelong.” For more information, to support the initiative and make the Parents Promise today, visit:
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Latest news | Courts and Tribunals Judiciary

Latest news | Courts and Tribunals Judiciary | Children In Law |
The Council has recently held seminars on Adoption and Family in the 21st Century and Experts and the Family Court...
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A (Hague Convention: Wrongful Retention) [2021] EWHC 1204 (Fam)

A (Hague Convention: Wrongful Retention) [2021] EWHC 1204 (Fam) | Children In Law |
The father applied for his six-year-old daughter's summary return from England to Russia under the 1980 Hague Convention, alleging that the mother had wrongly removed or retained her. The mother defended the application, arguing that the father had consented to the daughter's removal from Moldova to England, and that the child had become habitually resident in England and Wales. The court had to determine the date of wrongful removal or wrongful retention, habitual residence, settlement, the Article 13(b) defence of grave risk of harm, and, if relevant, the exercising of the court's discretion whether or not to order return. Also whether, when parties had agreed to the retention of a child abroad for an identifiable period of time, and the left behind parent resiled from the agreement and demanded the return of the child before the expiry of that period, the refusal or failure of the travelling parent to comply with the demand rendered the child's retention wrongful at that time. Poole J found that parts of the father's evidence had been inconsistent, sinister, incoherent, difficult to accept and deliberately misleading. The removal of the daughter from Russia had indeed been in breach of the father's custody rights, but Poole J rejected without hesitation his evidence that there had been an agreement to return her there. There was no wrongful removal when the daughter was brought to England in 2018, and no wrongful retention until January 2019, by which point she was habitually resident in England. Had it arisen, Poole J would have exercised his discretion to refuse to return the child to Russia, and he would have found that the Article 13(b) defence of grave risk of harm or intolerability was established, one reason being that the mother was not a Russian citizen and would have little to no security or stability there upon return. He dismissed the father's application for summary return. Judgment, published: 14/05/2021 Topics Share Twitter Facebook LinkedIn
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International parental child abduction (England and Wales)

International parental child abduction (England and Wales) | Children In Law |
This briefing covers international child abduction, including the criminal law, steps to prevent abduction occurring, and what to do if it does happen.
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Coercive control and children’s welfare in Re H-N and Others

Coercive control and children’s welfare in Re H-N and Others | Children In Law |
Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email Spotlight Children and Same Sex Families Children and Same Sex Families: A Legal Handbook More info View All A day in the life Of... Read on Coercive control and children’s welfare in Re H-N and Others Date:7 MAY 2021 When families come to strife, arrangements must be made for the future care of any children. In some circumstances, this means an application to the courts. These ‘private law orders’ can form part of a consent order, as in Re B-B. Others, are made under Sections 8(1)(a)-(b) and 9 of the Children Act 1989 specifying powers, amongst other things, to decide with whom a child is to live and when a child is to have contact. In 2019-2020, around 22,000 such applications were made involving some allegation of domestic abuse by one adult against another (para 3) with instances of domestic abuse rising because of Covid-19 (ONS, 2020). Consequently, the question of how allegations of abuse within family proceedings remains an urgent matter of concern.  However, despite increasing recognition of coercive control as being central to understanding domestic abuse, it remains less well understood in the context of  proceedings related to the future care of children.  As explained by the Harm Panel in its Report: the approach to such allegations is ‘implemented inconsistently’ and is ‘not effective’ in its principal purpose of protecting victims (Harm Panel (2020) 7.1). So, Re H-N [2021] EWCA Civ 448 offered the Court of Appeal the opportunity to provide this ‘general guidance’ on a matter of ‘great importance’ (para 1) - with each case in the combined appeals, outlined below, demonstrating the need for ‘proper understanding’ of domestic abuse and appropriate procedures. Although the case does well to address the inconsistencies in approach by offering an authoritative statement of the law – but does much less to address the ineffectiveness of approach in relation to the complexity and scope of the challenge. So, despite this case posing a valuable opportunity to clarify the law it is regrettable that the Court of Appeal declined to take forward any of the proposed options for reform. In deference to potential legislative reforms in the area, the Court keeps the law in its place – and leaves families in little better position than they were before.  2 Principles Re H-N concerned the question of when fact finding hearings are necessary and appropriate. It did not ‘make new law’ (para 18) with the Court being aware of its institutional limitations (paras 19-21). The Court affirmed that abusive behaviour has an important bearing on future risk of harm (paras 52-54) and articulated the connection between abusive behaviour directed at an adult victim and its direct, indirect, environmental and cultural impacts on children (para 31). Where there is an claim of ‘domestic violence’ which may have an impact on the outcome of a case, the court must decide whether fact finding is necessary and then make findings relating to these claims, to be considered as part of a holistic assessment of the best interests of the child (Re LVMH [2000] 2 FCR 40). The Court must decide whether, on balance, the allegations occurred (para 5) and will treat a finding that the allegations are less likely to have occurred than not as meaning that the allegations did not occur. Further guidance on handling allegations emerged in the form of Practice Direction 12J and in President’s Guidance, ‘The Road Ahead’. However, as Piper and Kaganas argue, the trajectory set by Re LVMH twenty years ago was always liable to create challenges and mistakes in application (Piper and Kaganas, 2010) and has led to well recognised problems for families and judges (Harm Panel (2020)).   Re H-N represents merely a shift in emphasis as compared with Re LVMH [2000] with its focus on ‘patterns of behaviour’ (para 25) taking account both intent and impact in context (paras 27, 32 and Re H-N below). This is significant, as demonstrated in Re T where the judge – despite finding that a serious incident of strangulation had occurred, relied on the father’s claim that he had not intended to cause serious harm in order to downplay the impact of the event on the mother. Likewise, in all of the combined appeals, there are challenges relating to assessing the events as part of  a ‘pattern’ or ‘series of acts’ that must usually be ‘assessed cumulatively’ (para 4 citing, F v M [2021] and statutory guidance). In Re N-H, for example, the judge accepted there to have been an incident where the father slapped the mother but failed to consider this event in its broader context – the fact that she was pregnant at the time and that the violence resulted in a police call-out.  The Court explained that judges should focus on ascertaining, on balance, how the parties behaved towards one another without regard to categories or principles in criminal law (paras 60-74, citing Re R (Children) [2018] EWCA Civ 198). This is sensible and correct: the court is not equipped for making conclusions on criminal matters, nor should it be constrained by the structure of criminal law, which are calibrated in both process and substance for entirely different purposes. Given the unique factual context of family disputes, Cafcass as interveners argued that the ‘safeguarding letter’ is inadequate and that significant, early social-worker input could lead to a more ‘informed and child-centred basis’ for initial decision-making (para 39). This, however, was a matter the Court of Appeal declined to take forward due to its apparent institutional limitations. Yet, the Court could have made a stronger statement in favour of such an approach – which may have yielded significant benefit across all cases. Moreover, the Court observed that deconstructing a ‘pattern’ of events into ‘Scott Schedules’ erects barriers to justice and can miss the broader picture (paras 48-49, see Re T below). This reflects the feminist insight that stresses narrative, context and relationality (Held, 2006), 15–17). Instead, narrative statements could provide a better road-map and means of eliciting information (para 48). This would have been in line with one of the Harm Panel’s proposals for an ‘investigative and problem solving’ approach based on ‘open enquiry’ to better ascertain the facts (Harm Panel, Chapter 11.2 (2020)) instead of this adversarial, bi-polar model. Accepting that the Court must be sensitive to its position. Sometimes, however, it is ‘unnecessary and disproportionate’ to engage in full fact-finding (Re L [2017] EWCA Civ 2121, para 61 and Re H, below) with decisions relating to hearings best made early for the safety and wellbeing of children and victims (Practice Directive 12J, para 17 and s1(2) CA 1989). Synthesising PD12J and the President’s Guidance, the Court thus distilled a number of principles (para 37): To consider the nature and relevance of any allegations, in relation to the decision to make, and terms of, an order. To take account of the purpose of any hearing – which ought to provide a risk assessment that can guide the court’s reasoning regarding the child’s welfare. The courts must consider the ‘relevance’, ‘necessity’ and ‘proportionality’ of any hearing, given the existence of other evidence and in light of the overriding objectives of the Family Procedure Rules 2010 and the President’s Guidance.  Understood as a pattern of behaviour, examination of ‘date specific factual allegations’ may no longer be ‘necessary’ (paras 56-57). The purpose is not to air or resolve allegations of abuse (para 58(a)-(b)) so, once a hearing is determined to be necessary then only those allegations as would be necessary to the order need be examined (para 58(c)). To facilitate this, both parties ought to provide statements outlining their experiences of living with one another (para 58(d)). Use of structured, narrative statements could, if forming part of a nuanced and contextual approach, start to mitigate the limitations of the current process but will form only the starting point for more fundamental reforms in the future.  Article continues below... Family Law Awards 2021 Entries now open! View product Family Law Reports "The unrivalled and authoritative source of... £509.99 View product Financial Remedies Handbook Formerly entitled the Ancillary Relief Handbook... £91.99 View product 3 The four appeals This final section outlines the four specific appeals, providing their principal findings and relating these to the principles and critiques set out above. Re B-B Re B-B considered an appeal against a consent order setting out the time to be spent by the father with their child. The issue was whether the judge was wrong to issue such an order without deciding the facts of serious allegations of abuse, including rape, and whether the judge’s inappropriate comments undermined the mother’s ‘consent’ to the order granted? The Court concluded that the judge’s ‘unguarded comments’ – including that the child could be placed for adoption and that social services would be involved – had ‘long lasting repercussions’ for the mother (para 108) and amounted to such a serious procedural irregularity that the appeal was allowed on this ground. The comments made by the judge were, to a large extent, contextualised and played down by the Court. Although it did ultimately conclude that these had a lasting effect on the fairness of the process as a whole, the seriousness and potentially traumatic nature of the judge’s remarks ought to have yielded greater censure. On the other hand, the Court could have also taken the opportunity to emphasise the impact of resources limitations on the functioning of the process – with chronic, systemic underfunding leading to more and more individual instances such as Re B-B (Harm Panel (2020) 11.1). Re H Re H concerned the case of a couple whose relationship deteriorated into violence and a rape by which H was conceived. Over the course a year, the mother was subjected to further instances of abuse and the relationship came to an end (paras 119-120). The judge initially failed to consider claims of ‘financial and emotional abuse’ as relevant to the child arrangements and decided that the mother had not been raped on the occasions she claimed (para 125). Although the mother did not oppose contact with the father, she sought to challenge the recital to the order which stated that her allegations were unproven. Described as ‘academic’ (para 145), the Court held that even for serious accusations it is not always ‘appropriate or necessary’ to hold a hearing (para 139) and dismissed the appeal (paras 151-154). This case demonstrates both the limitations of the process – restricted as they are to ascertaining necessary facts in relation to making and order and that the process may, at times, not connect with the desires and expectations of families. In this case, the authoritative expressive function of the order – rather than its substantive content – was what caused the mother’s complaint. Legal rules are ‘social forces’ with potentially therapeutic and anti-therapeutic consequences. The underlying principle of this approach is that when law can be used to promote therapeutic consequences and these are in line with legal values there are good reasons to do so (Perlin 2017). Although, given the resource constraints on courts, this approach may be justified, in instances where there is therapeutic value and negligible costs it may be right consider air the facts. Re T This case concerned allegations of rape during the course of a brief, verbally and physically abusive and controlling marriage (paras 156-157).  The judge examined a series of allegations – finding the mother’s evidence at times to be ‘embellished’ and ‘inconsistent’ (para 161) but accepting her claims of physical violence, strangulation and threats. The question was whether the judge had failed to appreciate the significance of the findings she made, putting undue emphasis on the father’s intentions instead of the very serious impact on the mother and the child (para 173-174). The judge failed to ask whether these instances established a pattern of coercion and/or control (para 174). The Court held that the judge erred by not considering her findings ‘as a whole’ nor appreciating their true seriousness (para 178). This is therefore illustrates well the limitations of the law’s focus on proof of individual events when this fails to connect these to the narrative context of the whole story between the parents and children.  Re-iterating that fact-finding must be necessary for the purposes of determining an order and not to pursue ancilliary purposes, the Court focused on the welfare of the child. Ultimately, the Court allowed the appeal and remitting the case to a different judge to determine the necessity of further fact-finding (para 184). Re H-N The final case concerned an allegation of rape against the father. Having lived together in the UK, the father returned to France with the children and the relationship persisted before coming to an end around Christmas, at which point the mother sought the return of H-N and B (a child from a previous relationship). Following the mother’s successful claim under the Hague Convention the father sought permission to remove H-N back to France (para 192). In the course of this application, the mother filed a schedule of allegations of rape and physical, psychological and emotional abuse (para 193). The judge accepted certain ‘minor’ instances of abuse following the father’s limited admissions, but went on to make a series of serious comments downplaying their importance and aired views that litigants might allege abuse in order to obtain professional sympathy and public funding (para 194-198). The Court of Appeal held that the judge failed to sufficiently account for these various allegations. For example, the judge failed to note the seriousness of a slap to the mother’s face, leaving redness and leading to a Police call-out. Nor did he contextualise that claim, failing to observe its relationship to a controlling incident (opening of post) nor the fact that she was pregnant (para 201). The Court went on to list numerous other failings and omissions, concluding that the judge’s reasoning was ‘seriously flawed’ and remitted the case for case management by the Designated Family Judge (para 223). Despite censuring the judge in this instance, the Court of Appeal still underemphasises the severe consequences of the judge’s inappropriate conduct. Conclusions Following Re N-H the law has been authoritatively clarified. The issue of inconsistent application demonstrated by the four appeals and the empirical work of the Harm Committee -  may be mitigated, although until social misconceptions around domestic abuse it is unlikely that the judicial culture will eliminate some of the stereotypical and harmful attitudes demonstrated in these cases. However, the law will not change following this decision and the process for handling fact finding hearings will remain constrained by the existing framework, with its use of schedules and limited resources. ONS, ‘Domestic abuse during the coronavirus (COVID-19) pandemic, England and Wales’ (2020): Family Proceedings Rules 2010: Practice Direction 12J - Child Arrangements & Contact Orders: Domestic Abuse and Harm: Harm Panel, ‘Assessing Risk of Harm to Children and Parents in Private Law Children Cases’ (2020): Home Office, ‘Statutory guidance framework: controlling or coercive behaviour in an intimate or family relationship’ (December 2015): President’s Guidance, ‘The Family Court and COVID-19: The Road Ahead’ (June 2020): Piper and Kagnas, (‘Re L (A Child)’ in Hunter (ed) Feminist Judgements (Hart, 2010) Perlin, ‘'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence’ (2017) Victoria Legal Aid Society: Herring, Law and the Relational Self (CUP, 2020): Categories: Articles Related Articles 31 JAN 2020 25 NOV 2020 27 APR 2021
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News Essentials: 8th May 2021

News Essentials: 8th May 2021 | Children In Law |
A brief summary of the essential family law news and cases from the last week:  NEWS High Court judge revokes adoption orders afte
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High Court judge revokes adoption orders after acknowledging "exceptional circumstances"

High Court judge revokes adoption orders after acknowledging "exceptional circumstances" | Children In Law |
A judge in the Family Division of the High Court has revoked adoption orders for an 18 year old (A) and a 16 year old (B) after concluding that there were “compelling highly exceptional and particular circumstances” that supported such a step.
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From one President to another | The Transparency Project

From one President to another | The Transparency Project | Children In Law |
This is the text of a submission to the President of the Family Division’s Transparency Review made by Sir James Munby (former President of the Family Division), in advance of the oral evidence session scheduled for 17 May 2021. It is published here with kind permission of Sir James. We have added some hypertext links to some of the documents referred to which are freely available online. THE PRESIDENT’S TRANSPARENCY REVIEW Session on 17 May 2021 Submission by SIR JAMES MUNBY : 6 May 2021 Background I was called to the Bar in 1971 and took Silk in 1988. I was appointed a judge of the High Court, assigned to the Family Division, in 2000. I was appointed a Lord Justice of Appeal in 2009. From 2009-2012 I was Chairman of the Law Commission. From 2013 until my retirement in 2018 I was President of the Family Division. I am Chair of the Board of the Nuffield Family Justice Observatory. From 1988 until 2000 I was involved as counsel in many of the most important reported cases relating to what we would now call transparency in the family courts: acting sometimes on behalf of a child, sometimes as amicus curiae but frequently on behalf of newspapers. From 2000 until 2018, as a judge, I gave many reported judgments on the same topic. I think I can fairly say that my judgments in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 82, and A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, paras 112-114, are widely recognised as definitive on the meaning and effect of section 12 of the Administration of Justice Act 1960. My perspective therefore reflects more than 30 years immersion in, thinking about and analysis of transparency from a variety of perspectives. The failure of reform That the law was not satisfactory and required reform was recognised as long ago as 1993, when the Lord Chancellor’s Department (the ancestor of the Ministry of Justice) published a Consultation Paper, Review of Access to and Reporting of Family Proceedings. It remains to this day the best analysis, in many ways, of the law and of the problems associated with it.[1] The results of that Consultation were never published and nothing more was done for over a decade. During the period from 2006 to 2009 the Department of Constitutional Affairs and its successor the Ministry of Justice carried out further Consultations.[2] During this process Government thinking underwent many changes. Eventually, what emerged was Part 2 of the Children, Schools and Families Act 2010. It was poorly drafted and never properly debated in Parliament; for a critical analysis, in both senses, see Munby, Lost Opportunities: law reform and transparency in the family courts, [2010] 22 CFLQ 273-289 (the 2010 Hershman-Levy Memorial Lecture). It was never implemented and, unlamented, was repealed in 2013: “Do the reforms which have taken place meet the criteria I have set out? Do they even meet the criteria identified by their architect? My answer to each question can only be a saddened and regretful No! … One view … is that if anything the Act is likely to reduce, rather than increase, the amount of information about children and other family proceedings which finds its way into the public. Truly, it may be thought, a lost opportunity.” During this period three things were achieved: With effect from April 2005, and as a direct result of my judgment in Re B, section 12 was amended by the insertion in section 12(4) of the following italicised words: “Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).” In short, section 12 can now be disapplied by rules of court. Amendment to the relevant rules of court followed in October 2005 and, to much more radical effect in April 2009, permitting disclosure in various circumstances which would otherwise be prohibited because of section 12: for the latter see now the Family Procedure Rules 2010 (FPR) Chapter 7 Rules 12.73 and 12.75 and Practice Direction 12G. With effect from April 2009, accredited journalists have been entitled, with certain limited exceptions, to attend family proceedings held in private: see now FPR Rule 27.11, Practice Direction 27B, Attendance of Media Representatives at Hearings in Family Proceedings, and President’s Guidance of 22 April 2009: Applications Consequent upon the Attendance of the Media in Family Proceedings: [2009] 2 FLR 167.   The practical impact of this in relation to transparency has been minimal, essentially for three reasons:    First, the new disclosure rules did not enable journalists to report what would otherwise be prohibited because of section 12: Most of the newly permitted disclosure was to those ‘inside the system’ who had a ‘need to know’. Rule 12.73(2) made clear that there was to be no “communication to the public at large, or any section of the public of any information relating to the proceedings”. (see Re N (A Child) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 58-59, 71), Rule 12.73(2) prohibited the journalist publishing what had been communicated. Secondly, the access to proceedings which had now been granted to journalists was not accompanied by any relaxation of section 12: so, the journalist could attend but could not report. Thirdly, the access to proceedings which had now been granted to journalists was not accompanied by access to the documents: so, the journalist could attend but could not understand much of what was happening. Once upon a time, in the days of my legal youth, proceedings in court were entirely oral: there was no judicial pre-reading; there was no written advocacy – no position statements or skeleton arguments; in an oral ‘opening’ the advocate took the judge, often at some length, through the facts, the documents and the law; and evidence in chief was oral. The journalist and the intelligent observer in the public gallery were thus able to follow what the case was about and what was going on. That is still, in essence, the procedure in criminal cases; in civil and family cases it has long since been consigned to history. The judge will have pre-read the bundle, there are written chronologies, position statements and skeleton arguments, and the evidence in chief is set out in written witness statements. The opening, if there is one, is attenuated. Much of the time, the hearing proceeds with such Delphic observations as “in relation to what the applicant says in paragraphs 23, 25 and 49 of her witness statement …” or “I need not elaborate what is set out in my skeleton argument except to note that …” Even the most astute and experienced journalist or observer is hard put to understand or follow what is going on.   The last point is exacerbated by the complexity and unpredictability of any application by a journalist for access to documents: see, for example, the decision in Newman v Southampton City Council [2020] EWHC 2103 (Fam), [2020] 4 WLR 108, which in places is not entirely easy to follow and is therefore difficult to apply,[3] and, in relation to the costs of redaction and copying, Newman v Southampton City Council [2020] EWHC 2148 (Fam) (appeal dismissed Newman v Southampton City Council and others [2021] EWCA Civ 437).[4] Interestingly and importantly, in the Court of Appeal King LJ commented (para 90): “This case has served to emphasise the need for the development of guidance in the form of court rules in order to assist courts in dealing with these difficult issues.” Unsurprisingly, in these circumstances, few journalists chose or choose to attend. More recently, I was responsible as President for pushing through two initiatives: In January 2014, I issued Practice Guidance: Transparency in the Family Courts: Publication of Judgments. I explained (paras 1-2) that this: “is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts …there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public”.   In October 2018, a pilot scheme was introduced in accordance with FPR Rule 36.2 enabling ‘legal bloggers’, in addition to accredited journalists, to attend family proceedings: see Practice Direction 36J, Pilot Scheme: Transparency (Attendance at Hearings in Private). The effect of this has been mixed: Compliance with the Practice Guidance has been both patchy and inconsistent. The Practice Guidance has not achieved what I had hoped and intended. The findings of two careful pieces of research are, to put it no higher, deeply troubling: see, in 2017, Doughty, Twaite and Magrath, Transparency through publication of family court judgments: An evaluation of the responses to, and effects of, judicial guidance on publishing family court judgments involving children and young people (see also their very helpful 4-page abridged version), and, in 2020, Bellamy, The ‘Secret’ Family Court, chapter 7: The Impact of the Practice Guidance. These two studies need to be read in full. Broadly speaking, their conclusions are very similar. Bellamy’s is particularly useful, for it covers a longer period and is more up to date. It focuses on the publication of judgments by Circuit Judges. A graph covering the period from March 2014 to March 2019 (page 95) illustrates the dramatic, and seemingly continuing, decrease in the number of such judgments published since 2015. He comments (pages 97-98): “… during that five-year period 82 family Circuit Judges did not publish any judgments at all. When the figures are analysed in detail it can be seen that only 20 judges published more than ten judgments, the rest were all in single figures. 11 judges published more than 20 judgments. There is also regional variation. In Wales only two judges published judgments. 96% of those judgments were published by just one judge. In one major court centre (Birmingham) a total of five judgments were published by three judges. In some courts – Wolverhampton, Telford and Worcester, for example – no judgments were published at all. … There are 42 Designated Family Judges in England and Wales … 18 DFJs in post when I undertook the survey have never published a judgment on Bailii.” Circuit Judges, like all judges in the family justice system, are having to cope with the intolerable pressures of ever-increasing workloads (I ignore, for present purposes, the additional pressures generated by the COVID pandemic.) And this, as Bellamy explains (pages 99-102), is undoubtedly a very significant factor when assessing the picture overall. But it does not begin to explain the astonishing differences uncovered by his, and the earlier, research. The stark reality is that much of this is because of very differing judicial attitudes and behaviours (on which see Bellamy, pages 102-111). The problem could hardly be clearer: Why had 18 out of 42 DFJs never published a judgment?     On the ‘plus’ side, recent years have seen the emergence of a new breed of tweeters and bloggers (lawyers and non-lawyers) and freelance journalists whose work is transforming knowledge and understanding of the family justice system. Their work is characterised by a real understanding of the system and a desire to explore the realities of its workings. Often very critical – justifiably so – their approach is, however, responsible and directed to explaining and improving the system. Developments in the Court of Protection It is relevant to note two initiatives in the Court of Protection which I undertook in my capacity as President of the Court of Protection: In January 2014, at the same time as I issued the Practice Guidance in relation to family proceedings, I issued corresponding Guidance in relation to the Court of Protection: Practice Guidance: Transparency in the Court of Protection: Publication of Judgments. In January 2016, a pilot scheme was introduced, in accordance with the Court of Protection Rule corresponding to FPR Rule 36.2, providing, as a default provision, for all hearings to be in open court, subject to an order in standard form being made restricting publication of identifying information. The pilot, which ran until November 2017, was successful and was made permanent: see Court of Protection Rules 2017, Rule 4.3 and Practice Direction 4C, Transparency. This opening up of the Court of Protection seems to have worked well and, importantly, without causing any significant problems. Interestingly, it has led to much greater outside interest in and reporting of what the Court of Protection is doing, extending far beyond the traditional legal reporting and analysis of published judgments. The blogs and tweets published by the Open Justice Court of Protection Project – Promoting Open Justice in the Court of Protection are a convincing demonstration of the many and obvious advantages which have accrued following the opening up of the Court of Protection. They are important as showing the way ahead, not least because the distinguished commentators who are the Open Justice Court of Protection Project ­– Professor Celia Kitzinger and Gill Loomes-Quinn – are neither lawyers nor journalists, attending court as members of the public. The problem  There are two major problems: First, there is the sheer complexity of the law. The number of reported cases since 1975 is enormous. The six critical words in section 12 – “information relating to proceedings … in private” – which, although section 12 has been amended from time to time down the years, have remained unchanged from the first introduction into the House of Lords in March 1960 of the Bill which became the 1960 Act, have probably generated as much litigation as any other six words on the statute book. The LCD’s Consultation Paper of 1993 runs to 134 pages; Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, the current practitioner’s ‘bible’, runs to 243 pages, not counting a further 84 pages of appendices; Burrows, Open Justice and Privacy in Family Proceedings, runs to 216 pages. Secondly, the case-law establishes that there is a crucially important distinction between publishing merely “the nature of the dispute” (which is permissible) and publishing “the substance of the matters” (which is not permissible). There are five cases which bear on this: Re W and Others (Wards) (Publication of Information) [1989] 1 FLR 246, X v Dempster [1999] 1 FLR 894, Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11, and S v SP and Cafcass [2016] EWHC 3673 (Fam), [2017] 2 FLR 1079. The judgment of Wilson J, as he then was, in Dempster was the first to explore the distinction and remains, in many ways, the most important; it comes as close as anyone is likely to be able to illuminating the essential distinction between publication of “the nature of the dispute”, which is permissible, and publication of even summaries of the evidence, which is not. It is no criticism of Wilson J, but rather of the state of the law, that his analysis (and the same goes for all the other cases) is essentially subjective and thus unlikely to be of much use to even the most experienced journalist. The consequence of this is that, irrespective of what a lawyer may think it means, section 12 has a seriously chilling effect on what people – families, journalists and legal bloggers – think can be published: Given that a breach of section 12 involves contempt of court – for which the penalty is imprisonment or unlimited fine – a legal blogger or journalist without access to appropriately skilled legal advice, and even one who is well advised or knowledgeable but has a lot to lose professionally and personally if they or their lawyers interpret the scope of what is permissible differently from a judge, is bound to err on the side of caution. This usually means that very little is published in the absence of a published judgment, and, even then, only what can be gleaned from the judgment. The cost, in terms of time, effort and potential legal costs, and the unpredictability of the outcome, mean that an application to the court to disapply section 12, whether in part or in whole, is typically undertaken only by the most determined. The practical reality I fear is that, because of the complexity and lack of clarity, too many in the media – commissioning editors, journalists and even media lawyers – just do not want to go there; let alone getting to the stage of making an application in what, rightly or wrongly (and it does not matter which), many feel is a hostile, conservative environment that does not like the press or any sort of scrutiny. The complexity and uncertainty in the law, coupled with the professional reality that few family lawyers (and not even all media lawyers) are actually masters of all the learning, means that legal advice is likely to be very cautious, whether the issue is the meaning and effect of section 12 or the possibility of its disapplication. The consequences The consequences of all this are profoundly serious. I identified the issues as long ago as 2004 in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. Nothing which has happened since has caused me to alter the analysis. Quite the contrary. There are four major problems: It causes serious and continuing reputational damage to the family justice system: There is a public interest in promoting and maintaining the confidence of the public at large in the family courts, an interest underscored, as the Strasbourg court has repeatedly stressed, by ECHR Article 6. The reality is that confidence is at a low ebb because of perceptions that the family justice system is failing and that there are miscarriages of justice. We cannot afford to proceed on the blinkered assumption that all is well and that there have been no miscarriages of justice in the family justice system. We know there have been and continue to be. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential, not least because, in the very nature of things, the initial ‘official’ response to any allegation that there has been serious error is likely to be one of scepticism or worse. But that, it might be thought, is all the more reason why there should not be restraint, why the media should not be hindered in their vital role. It prevents parents and children speaking out: Parents and relatives such as kinship carers often want to speak out publicly; sometimes children also do.[5] The workings of the family justice system and, very importantly, the views about the system of those caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly”. Many of the issues litigated in the family justice system are so serious and life changing that they require open and public debate in the media. It is important, in a free society, that parents, relatives and children who feel aggrieved at their experiences of the family justice system are able to express their views publicly about what they conceive to be failings in the judicial system or on the part of individual judges. It facilitates the peddling of untruths: One of the disadvantages of the “curtain of privacy” to which Balcombe LJ once referred – what some campaigners would prefer to characterise as the cloak of secrecy surrounding the family courts – has become apparent. Those who without justification attack the family justice system can all too easily do so by feeding the media tendentious accounts of proceedings whilst hypocritically sheltering behind the very privacy of the proceedings which, although they affect to condemn, they in fact turn to their own advantage. It is all too easy to attack the system when the system itself prevents anyone – even the responsible journalist or commentator who wants to print the truth – correcting the misrepresentations being fed to the media. The simple fact is that too relentless an enforcement of the privacy of family court proceedings is counter-productive; the rule of confidentiality facilitates the dissemination of false and tendentious accounts of proceedings in family courts, which in turn tends to further undermine public confidence in the system. The point was well captured by Ryder J, as he then was, in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005] 1 FLR 648, para 22: “In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.” In Re P (Enforced Caesarean: Reporting Restrictions) [2013] EWHC 4048 (Fam), [2014] 2 FLR 410, I said this (paras 1, 43-45): “This is an application … for a reporting restriction order in a matter which has been the subject of much reporting and comment in the media both in this country and around the world. Too much of that reporting has been inaccurate – though that, as I shall explain, is not entirely the fault of the media – and some of it has been tendentious, to use no stronger word … Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country. The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public? The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of High Court Judges; it applies also to the judgments of Circuit Judges.” It prevents the judges being held properly to account: As Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, “freedom of speech is the lifeblood of democracy … It facilitates the exposure of errors in the … administration of justice of the country.” The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. In his great speech in Scott (otherwise Morgan) and another v Scott [1913] AC 417, 477, Lord Shaw of Dunfermline quoted Bentham to powerful effect: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” Yet the effect of section 12 is to hobble the media. This last point is fundamentally important and requires elaboration. Holding to account Let me postulate a simple hypothetical example. A journalist or legal blogger attending a hearing listens to a discussion between the judge and advocates about the arrangements for a future fact-finding hearing. Notwithstanding section 12, in my opinion (though I could understand a journalist or legal blogger being more cautious) it is permissible for the journalist or blogger, in identifying the issues being discussed, to refer, for example, to: How much of the bundle the judge needs to read before giving directions. How many and which of the allegations (one of rape) should be the subject of fact-finding. The need for any fact-finding and the likely impact of any findings on future contact. Whether the complainant should have the use of screens. Beyond that, section 12 prohibits not merely publication of even anonymised extracts from the journalist’s or blogger’s shorthand notes (or from the transcript, if available) but also any account of how the judge dealt with the issues. The journalist or blogger is dismayed – perhaps appalled – by what the judge has said, or indeed by what they observe of his non-verbal conduct or of the interactions and dynamics in the courtroom, as indeed, let us suppose in our hypothetical example, would be the vast majority of right-thinking family practitioners and members of the public. What is the journalist or blogger to do? Ask the judge who is to be criticised to authorise publication? Many, and not only the most cynical, might understandably baulk at the very idea. There is a profoundly important, if very simple, question: how could publication of this material in totally anonymised form (except for the identity of the judge) possibly damage anyone other than the judge? The answer is obvious – it could not – unless it is to be said that it would damage public confidence in the family justice system. To that objection, the answer is equally obvious: how is confidence in the system maintained by concealing the truth, however disagreeable, embarrassing or even career-damaging? Quite the reverse.[6] Is section 12 a necessary protection or an objectionable obstacle? The answer is clear. If it is said that my example is fanciful, I need only refer to the recent judgments in notorious appeals: JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448. What this illustrates, I have to suggest, is: The chilling effect of section 12 and just how serious an obstacle section 12 is to publishing the truth about what is going on in the family courts and to achieving proper accountability. That there are cases – who knows how many, but I fear too many – where the only person being protected by section 12 is the judge – not the family, not the children, nor other lay participants – a person who, in the public interest, ought to be held to account. The irrefutable truth of the Benthamite proposition that only constant exposure to the public gaze keeps judges up to the mark. There are a number of further linked points: What I have said in relation to the judges has equal traction in relation to other public officials and public bodies. Section 12 not merely stands in the way of judges and other public officials being held to account, it also hinders and to a significant extent prevents what one might call “internal transparency” – the ability of a system to reflect, having had a mirror held up, and to learn and where necessary to effect cultural change. By this I mean not just change of culture in relation to transparency but also cultural change more generally, for example in attitudes to domestic abuse. Publication of judgments – many, many more judgments than at present ever see the light of day – is vital. However, it is not a panacea. A judgment, after all, contains only what the judge chooses to include, but a critic may wish to argue, for example, that the judge has misunderstood the evidence or overlooked important matters or, as in the appeals in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, where the vitally important context was revealed only when the transcripts were produced, has arrived at his conclusions by a process which was unfair or worse. Even if the judgment has been published, section 12 precludes discussion of any of those matters. Why? As I said in Re Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, para 110: “if what is being said is that there has been a failing in the judicial process, it might be thought – and certainly will be thought by some – to be less than satisfactory that the only accounts of what has happened, the only explanations to be given to the public, are those which a judge thinks it appropriate to include either in a judgment or in a judicially approved press release. After all, the complaint may be that the judge has misunderstood the evidence, overlooked some vital piece of evidence or gone against the weight of the evidence – and how can that case be made if the only material available to the public is the very judgment whose alleged deficiencies are under challenge?” The standing of the family justice system today In relation to all of this, I venture to quote what I said in A v Ward [2010] EWHC 16, [2010] 1 FLR 1497, para 133: “… the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 … And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’ I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.” Matters are no better today. If anything, they are worse. Down the years the focus of criticism has shifted from time to time. In 2004 the concern was as to the quality of expert evidence in cases of sudden infant death. Subsequent concerns related to wider problems in the care system: the issue of so-called ‘forced adoption’; concerns that too many children were being taken into care; and, more generally, complaints about often seemingly serious failings by local authorities. On occasions these concerns extended to criticisms of judicial behaviour. Most recently, the focus has been on failings – and especially judicial failings – in the private law system, in particular in cases involving, or alleged to involve, domestic abuse. The Final Report of the MoJ Expert Panel on Harm in the Family Courts published in June 2020 is a shattering indictment of the system. The accompanying Ministerial statement was blunt: “This report lays bare many hard truths about long-standing failings in the family justice system, especially in protecting the survivors of abuse and their children from harm. It is not a comfortable read. The testimonies in the report show that there are some fundamental issues that we must address in order to improve the experience and ensure the safety of all participants in the family justice system. I want to make it clear that this is not acceptable.” The judgments in JH v MF [2020] EWHC 86 (Fam) and Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 reveal very serious judicial failings by experienced family Circuit Judges and show that there can be no room for complacency. But for the appeals, the likelihood is that these judicial failings would have gone completely unnoticed, shielded from publicity by a combination of the judges’ failure to publish their first instance judgments and the effect of section 12. The saddening reality, I believe, is that the family justice system stands today in lower public regard than at any time I can recall. It gives me no pleasure to say this, but it is, I believe, a time for plain speaking, however painful. We cannot afford to stand still. The stark reality is that the family justice system is going to lose more by persisting with its current way of doing things than – no matter the inevitable discomfort – it will by becoming more open. The irony is that it is section 12 which also shields good judicial work from being shown – for example by the journalist who is in court and wishes to explain, and illustrate, how very well a humane and empathetic judge has managed the hearing and supported the parties to give their best evidence. A problem of culture Underlying these difficulties, is a significant problem of judicial culture. The point can be put very simply: how many of us really accept either the Benthamite principle that the judge, while judging, should himself be judged (“Publicity is the very soul of justice … It keeps the judge himself while trying under trial”) or Brandeis J’s belief in the disinfectant power of exposure to forensic sunlight? A five-fold approach I suggest that what is needed – and as a matter of pressing necessity – is the following: (1) Repeal of section 12 and, if appropriate, its replacement with more focused provisions better suited to the modern world I need not rehearse the arguments: see, in addition to what I have already said, Munby, Bellamy, Reed, Doughty and Tickle, Should section 12 of the Administration of Justice Act 1960 be repealed? – A Proposal for the Law Commission’s 14th Programme of Law Reform, [2021] 80 Family Affairs 23, and, without the Introduction, [2021] Fam Law 466. (2) An open court pilot In the meantime, and a matter for early implementation, there needs to be an ‘open court’ pilot scheme in the family courts similar to the pilot that was so successful in the Court of Protection. I am aware of the proposals which the very experienced freelance journalist Louise Tickle has put forward. l strongly support them. I am conscious that forensic realities in the family courts often differ from those in the Court of Protection, but for present purposes the fundamental legal principles in play are precisely the same, as demonstrated by (a) the analysis of all the judges in Scott (otherwise Morgan) and another v Scott [1913] AC 417 and (b) the fact that section 12(1)(a), in relation to the family courts, mirrors precisely section 12(1)(b) in relation to the Court of Protection. I acknowledge, of course, that media reporting is not and never will be perfect. But, with all its inevitable imperfections, it works as an important check to power in other parts of our society; it should be allowed to do so in the family justice system. (3) Increased publication of judgments The following steps need to be taken: The consolidation of the existing Practice Guidance (the Practice Guidance I issued in January 2014 and the Practice Guidance: Family Court – Anonymisation Guidance issued in December 2018 by the President) as recommended by Doughty, Twaite and Magrath, coupled with a renewed and sustained drive to persuade judges to comply with it. The setting up of an Anonymisation Unit along the lines of the Australian model as recommended by Bellamy (Bellamy, 189-192, 248-249) – it is essential that this is under the direct control of the judiciary and not a task undertaken by either Her Majesty’s Courts and Tribunals Service or the Ministry of Justice. Clarification of the guidance in relation to the naming of local authorities and other public bodies. The 2014 Practice Guidance was explicit that “public authorities … should be named in [a] judgment approved for publication, unless there are compelling reasons why they should not be named”. That reflected the case-law. Some judges seem to have taken the view that the later Practice Guidance has changed this, and therefore have not named the local authority: see, for an example, A Local Authority v B, H and I (Sibling as carer or adoption) [2019] EWFC B1, para 1. This is a seriously retrograde step. (4) Creation of a Media Liaison Committee         I strongly support Bellamy’s recommendation (Bellamy, 203-204, 250) that a Media Liaison Committee should be created. Given current realities, it is important that such a group should include not only members drawn from the traditional print and broadcasting media but also members drawn from the blogging and tweeting communities. (5) Rule changes Pending repeal of section 12, and whatever else is done, rule changes having effect for the purposes of section 12(4) would go a significant way to ameliorating the problems identified above. In this connection, I believe that we need to proceed incrementally. What I propose is merely a first step. The situation needs to be kept under review, with a view to moving further forward with all due speed in the light of experience. For this purpose, I propose new rules under three headings: Disclosure by parties to reporters. Access by reporters to documents.   Extending the ambit of what can be reported. I use the expression “reporter” to include both journalists and legal bloggers. Disclosure by parties to reporters FPR Rule 12.75(1) should be amended to provide explicitly that a party to proceedings is permitted to “communicate information relating to the proceedings” (which in this context would plainly include documents) to a reporter. On one view, such a rule would not require qualification, as Rule 12.73(2) would prohibit the reporter publishing anything so communicated without the prior approval of the court unless otherwise permitted by the new rules I propose below. On the other hand, and whatever the strict logic of such an approach, it might be thought appropriate to exclude certain identified types of document. I have in mind: Medical (including psychiatric and psychological) records and reports relating to anyone other than the person who is communicating with the journalist. Such documents will, of their nature, include highly sensitive and confidential information in relation to which a high degree of protection – protection from dissemination and publication – attaches as a matter of principle, human rights and substantive law. In particular, the State is under an obligation to ensure that there are in place “effective and adequate safeguards against abuse”: see the discussion in Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 49-51, Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79, [2017] 1 FLR 82, paras 27-31, and In re G (A Child) (Wider Family: Disclosure of Court File) [2018] EWHC 1301 (Fam), [2018] 4 WLR 120, para 32, of the Strasbourg decisions in Z v Finland (1998) 25 EHRR 371 and MS v Sweden (1999) 28 EHRR 313. Assessments – for example assessments as potential carers of parents, kinship carers, special guardians and adoptive parents – of anyone other than the person who is communicating with the reporter. Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure. Access by reporters to documents Rules 12.73 and 12.75 or PD 12G should be amended to entitle a reporter who attends or is or was entitled to attend any hearing to be supplied forthwith on request with certain documents. What those documents should be is a matter for consideration, and it may be prudent in the first instance to proceed incrementally, but I propose that initially the following should be provided if requested: Chronologies (including social work chronologies), case summaries, position statements and skeleton arguments. These are necessary to enable the reporter to understand and follow what is going on. Expert reports, in particular expert reports relating to harm alleged to have been suffered by a child. This would be in line with what Sir Nicholas Wall P said in Re X, Y and Z (Expert Witness) [2011] EWHC 1157 (Fam), [2011] 2 FLR 1437, para 94: “I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.” If disclosure of other documents is sought, application should be made, as at present, to the judge. This list should be expanded, in the light of experience, to include, for example, witness statements. In particular, early consideration must be given to permitting disclosure of witness statements filed on behalf of local and other public authorities. My present feeling is that, whatever future additions might be made to the list of documents a reporter is entitled to have supplied on request, it should remain necessary first to obtain the approval of the judge for a reporter to obtain: Documents which have been disclosed by the Police or other agencies on terms limiting further disclosure. There is an issue as to whether documents should be provided in anonymised form. Although many might, instinctively, think that such documents should always be anonymised, there are powerful countervailing arguments: The burden of redaction imposed on those who are often already over-worked and poorly remunerated. The fact that, at the end of the day, the real and vital protection is that afforded by section 97 of the 1989 Act (as elaborated in the publication rules proposed below). I draw attention to CPR PD52c, para 33(2), which provides that in appeals to the Court of Appeal in family proceedings involving a child the copies of the skeleton arguments required to be supplied in accordance with para 33(1) “must be in anonymised form and must omit any detail that might, if reported, lead to the identification of the child.” That, however, applies to proceedings in open court, so may not be necessary where the proceedings are in private and therefore, subject to specific exceptions, protected by section 12 and section 97. Extending the ambit of what can be reported For this purpose, I propose for the moment new rules based in part on the provisions to be found in: the Judicial Proceedings (Regulation of Reports) Act 1926, as in force today; the Children and Young Persons Act 1933, as in force today; the Magistrates’ Courts Act 1980, as in force immediately before the introduction of the Family Court in 2014; and the Children Act 1989, as in force today. The first three of these are of particular interest because they regulate the publication of details of hearings conducted in public (the 1926 Act) or hearings in relation to which journalists were entitled by statute to be present (the 1933 Act dealing with the youth court and the 1980 Act dealing with the family proceedings court). I am not aware that these provisions of either the 1933 Act or the 1980 Act have ever given, or ever gave, rise to any concerns. It is also to be noted that, as Sir Stephen Brown P said in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, quoted in Rapisarda v Colladon [2014] EWFC 1406, [2015] 1 FLR 584, para 25, referring to section 1(1)(b) of the 1926 Act: “it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.” I set out the relevant provisions in the Appendix. As can be seen, there is significant common ground between them. For present purposes it is to be noted that they adopt three different techniques: Stating what you cannot publish: the 1933 Act, sections 49(1), (3A); and the 1989 Act, section 97(2). Stating what you can publish: the 1926 Act, section 1(1)(b). Stating both what you cannot publish and what you can publish: the 1980 Act, sections 71(1A), (2). In terms of what you cannot publish, compare: the 1933 Act, sections 49(1), (3A); the 1980 Act, section 71(2); and the 1989 Act, section 97(2). In terms of what you can publish, compare: the 1926 Act, section 1(1)(b); and the 1980 Act, section 71(1A). I propose – I emphasise along with other reforms – rule changes, in the first instance setting out, along the same lines as and building on these statutory precedents, both a list of what you cannot publish and a list of what you can publish. In due course, and I would hope sooner rather than later, it will be important to move to a simpler rule merely setting out what you cannot publish. In the first instance, such a rule might take the following form: A reporter may publish: the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given; the submissions on any point of law or practice arising in the course of the proceedings and the decision of the court on the submissions; the judgment or decision of the court, and any observations made by the court in giving it; information about the conduct, verbal and non-verbal, of the judge and the judge’s exercise of case management powers; information about the conduct in the course of the proceedings of the local and any other public authority; and comments, views and criticisms (including by the parties or third parties) on any of the above. Provided that the reporter must not publish in relation to any child concerned in the proceedings: the name or address of the child; the identity of any school or other educational establishment attended by the child; any picture (still or moving) as being, or including, a picture of the child (unless the child is disguised so as to prevent identification); or any material which is intended, or likely, to lead members of the public to identify the child as someone concerned in the proceedings or in any other proceedings before the High Court or the family court in which any power under the Children Act 1989 or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child. Provided also that the reporter must not publish (except as part of any report to the extent permitted above of any judgment decision or observations made by the court) any part of any medical (including psychiatric and psychological) record or report relating to anyone other than a person who consents to disclosure; or any assessment of anyone other than a person who consents to disclosure. The rule would require definitions of what for this purpose is meant by “reporter”, “publish”, and “child concerned in the proceedings”. Conclusions In summary: Something has got to be done. Inaction is not an option. Reform – significant reform, not just tinkering – is an urgent and imperative necessity, even if, initially, it should be incremental. In the first instance, the most immediately effective way of moving forward is by rule changes to take advantage of section 12(4). Appendix (statutory precedents) Judicial Proceedings (Regulation of Reports) Act 1926 1(1)     It shall not be lawful to print or publish, or cause or procure to be printed or published –    (b)       in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:— (i)         the names, addresses and occupations of the parties and witnesses; (ii)        a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii)       submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv)       the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment … Children and Young Persons Act 1933 47(2)   … No person shall be present at any sitting of a youth court except— (a)        members and officers of the court; (b)       parties to the case before the court, their legal representatives, and witnesses and other persons directly concerned in that case; (c)        bonâ fide representatives of newspapers or news agencies; (d)       such other persons as the court may specially authorise to be present: 49(1)   No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings. (2)        The proceedings to which this section applies are— (a)        proceedings in a youth court; (b)       proceedings on appeal from a youth court (including proceedings by way of case stated); … (3)        In this section “publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed) … (3A)     The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular— (a)        his name, (b)       his address, (c)        the identity of any school or other educational establishment attended by him, (d)       the identity of any place of work, and (e)        any still or moving picture of him. (4)        For the purposes of this section a child or young person is “concerned” in any proceedings if he is— (a)        a person against or in respect of whom the proceedings are taken, or (b)       a person called, or proposed to be called, to give evidence in the proceedings. (11)     In this section— … “picture” includes a likeness however produced; “relevant programme” means a programme included in a programme service, within the meaning of the Broadcasting Act 1990; Magistrates’ Courts Act 1980 65(1)   In this Act “family proceedings ” means proceedings under any of the following enactments, that is to say— … (n)       the Children Act 1989 … 69(2)   In the case of domestic proceedings in a magistrates’ court other than proceedings under the Adoption Act 1976, no person shall be present during the hearing and determination by the court of the proceedings except— (a)        officers of the court; (b)       parties to the case before the court, their solicitors and counsel, witnesses and other persons directly concerned in the case; (c)        representatives of newspapers or news agencies; (d)       any other person whom the court may in its discretion permit to be present, so, however, that permission shall not be withheld from a person who appears to the court to have adequate grounds for attendance. (3)        In relation to any domestic proceedings under the Adoption Act 1976, subsection (2) above shall apply with the omission of paragraphs (c) and (d). (4)        When hearing domestic proceedings, a magistrates’ court may, if it thinks it necessary in the interest of the administration of justice or of public decency, direct that any persons, not being officers of the court or parties to the case, the parties’ solicitors or counsel, or other persons directly concerned in the case, be excluded during the taking of any indecent evidence. 71(1)   In the case of family proceedings in a magistrates’ court (other than proceedings under the Adoption Act 1976) it shall not be lawful for a person to whom this subsection applies— to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or [broadcasting] any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below. (1A)     The particulars referred to in subsection (1) above are— (a)        the names, addresses and occupations of the parties and witnesses; (b)       the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given; (c)        submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions; (d)       the decision of the court, and any observations made by the court in giving it. (1B)     [Those to whom subsection (1) applies] (2)        In the case of family proceedings in a magistrates’ court under the Adoption Act 1976, subsection (1A) above shall apply with the omission of paragraphs (a) and (b) and the reference in that subsection to the particulars of the proceedings shall, in relation to any child concerned in the proceedings, include— (a)        the name, address or school of the child, (b)       any picture as being, or including, a picture of the child. and (c)        any other particulars calculated to lead to the identification of the child. Children Act 1989 97(2)   No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify— (a)        any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or (b)       an address or school as being that of a child involved in any such proceedings. (5)        For the purposes of this section— “publish” includes— (a)        include in a programme service (within the meaning of the Broadcasting Act 1990); (b)       cause to be published; and “material” includes any picture or representation. [1]                This is not to depreciate two excellent books whose study is fundamental to the issues: Doughty, Reed and Magrath, Transparency in the Family Courts: Publicity and Privacy in Practice, Bloomsbury Professional, 2018, and Bellamy, The ‘Secret’ Family Court: Fact or Fiction?, Bath Publishing, 2020. Both, of course, are much more up to date, but, as their titles indicate, their purpose is in each case rather different. Also valuable, especially for its common law perspective, is Burrows, Open Justice and Privacy in Family Proceedings, The Law Society, 2020. [2]                In July 2006, Confidence and confidentiality: Improving transparency and privacy in family courts, CP11/06; in March 2007, Confidence and confidentiality: Improving transparency and privacy in family courts – Response to Consultation, CP(R)11/06; in June 2007, Confidence & confidentiality: Openness in family courts – a new approach, CP10/07; and, in December 2008, Family Justice in View, CP(R)10/07 (in relation to which the Lord Chancellor made an oral statement in the House of Commons on 16 December 2008).  [3]                See, for example, paras 112, 121, 129 and 130 in the context of the surely important distinction between an application for permission to see the documents (without the documents going into the public domain) and an application for permission to publish the documents. [4]                The successful appeal against the original order by a Circuit Judge in the care proceedings is Re M (A Child: Care Proceedings) [2018] EWCA Civ 240, [2018] 2 FLR 690. The successful appeal by journalists against the egregiously defective grant by a DFJ of a reporting restriction order is R (A Child) [2019] EWCA Civ 482. [5]                For example, a 16-year-old child in care who wants to speak out about the family court proceedings, or a 16-year-old child in private law proceedings who wants to talk about their perception of a court case that ended up with them living with an abusive parent. [6]                The Circuit Judge sitting in the family court who was so heavily criticised by the Court of Appeal in In re S-W (Children) (Care Proceedings: Case Management Hearing) [2015] EWCA Civ 27, [2015] 1 WLR 4099, was subsequently subject to disciplinary proceedings, in which he was formally reprimanded for “serious misconduct”. Incidentally, the judge had previous ‘form’: see Re S (Authorising Children’s Immediate Removal) [2010] EWCA Civ 421, [2010] 2 FLR 873, Re P (A Child) [2014] EWCA Civ 888 and Re A (Children) [2015] EWCA Civ 133. None of this would have come to light but for the appeals exposing the judge’s behaviour. Featured image: Privacy, by ESB Professional, via Shutterstock.
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