Written evidence from Dr Julia Brophy,
University of Oxford (FC 31)
EXECUTIVE SUMMARY
A1 Major concerns exist regarding children's
views and rights to privacy. The implications of their unwillingness
or inability to discuss/disclosure parental abuse or parents'
behaviour in the face of potential media attendance and reporting
and a failure to consideration their rights under Article 12 of
the UNCRC requires a rethink and a proper consultation exercise
before moving any further in this field and certainly before implementation
of Part 2 of the CSF 2010
A2 Children and young people are unconvinced
of the power adults or formal rules prohibiting publication of
certain information to protect them. They do not trust reporters
and do not think the details of painful, humiliating experiences
in their care is the business of newspapers or the public. They
are therefore likely to effectively withdraw from proceedings
in the face of media attendance. This has serious implications
for judges charged with protecting their rights, welfare and safety.
A3 There is agreement across groups that improvements
are required in publicly available information about the work
of family courts and decision-making process. What was not agreed
- and what is become more questionable - is whether the media
as a general rule is able/best placed to delivery this policy
objective.
A4 There is also mounting agreement - between
some supporters of the new rules and Part 2 of the CSF 2010 Act
and those who opposed both developments - that provisions are
unworkable
A5 Both groups (included some journalist and
editors) have identified increased costs and delay implications.
A6 The implications for lawyers, doctors and
others working directly with highly vulnerable children are even
more complex and require immediate consideration. Their concerns
about professional ethics and violations of children's Article
12 rights require attention.
Q4 - Confidentiality and openness in family courts,
including the impact of the recent changes in the Children, Schools
and Families Act 2010
INTRODUCTION
4.1 I am a senior research fellow at the Centre
for Family Law and Policy at the University of Oxford. I have
directed a number of major studies with awards from The Department
of Health, The Ministry of Justice, The Nuffield Foundation, Office
of the Children's Commissioner (England) and the London Family
Justice Council.
4.2 I sit on several advisory committees in the
field of family law including the Thames Valley Family Justice
Council, the National Youth Advocacy Service and the Executive
Committee of the Association of Lawyers for Children. I worked
with the Interdisciplinary Alliance for Children and until recently
sat on Research Advisory Committee for British Agency for Fostering
and Adoption and the National Family Justice Council (Diversity
Sub-Committee). I was consultant to the public law review team
at the Ministry of Justice in 2006 undertaking a review of Children
Act research to inform policy and support the team[24]
and advised the Guernsey Administration on an evaluation programme
for the Child, Youth and Community Tribunal.
4.3 My main fields of interest are interdisciplinary
research and training in the family justice system and the interface
of clinical and welfare issues, and law. Major studies include
care proceedings under the Children Act 1989, an evaluation of
the "significant harm" criteria, use of experts, the
views and experiences of child psychiatrists, the views and experiences
of parents, the work of judges and children's advocates, and the
voice of the child. I have a particular interest in issues of
diversity and have led several studies on issues of cultural,
linguistic and religious diversity in child maltreatment.[25]
4.4 I have recently undertaken an evaluation
of a pilot scheme, followed by a national procedure (Public Law
Outline) aiming to improve court management of care applications.[26]
4.5 I have also undertaken two major studies
about media access to family courts (a) review of media and public
access to family courts in other jurisdictions[27]
and (b) a study of the views of children and young people regarding
media access to hearings.[28]
With regard to the Children, Schools and Families Act 2010 -
Part 2, I have commented on the Bill[29]
and gave oral evidence to the Bill Committee on the 21 January
2010.
4.6 I also gave oral evidence to the Family Justice
Review team, chaired by David Norgrove, on the 28 August 2010.
Their remit does not include confidentiality and openness but
the review panel agreed that some questions it has set are related
to questions of information about and funding of the family justice
system and thus concerns about privacy and transparency are overarching,
relevant for the Review and Select Committee Inquiry.
4.7 I have sat on a number of panels at various
conferences with members of the media, judges, lawyers and clinicians
debating issues and the Bill/Act. I have had discussions, most
recently with the Assistant Director of the BBC Panorama team
regarding a (now televised) programme on a case involving serious
injury to a baby and where the parents wished to name experts;
they took their application to the High Court and to the media.[30]
I have undertaken a workshop for practitioners[31]
and am due to speak at the Jersey Conference on Privacy and Transparency
- Disclosure and Publicity in Children Cases (October 2010 - co-chairing
a session with a journalist) and am a plenary speaker on this
issue at the Annual Conference of the Association of Lawyers for
Children in November.
CHANGES TO
THE FAMILY
PROCEDURE RULE
- APRIL 2010 AND
PROVISIONS IN
PART 2 OF
THE CHILDREN,
SCHOOLS AND
FAMILIES ACT
2010
4.8 Following changes to the Family Procedure
Rules in April 2009 the media are permitted to attend family hearings
unless otherwise dictated by the judge. That change has important
implications for everyone in the family justice including the
children/young people who are the subject of proceedings. This
is now coupled with the provisions of Part 2 of the Children Schools
and Families Act 2010 - which, in principle, aims to facilitate
the reporting of family cases and the naming of certain experts
who assess children, parents/others, provide reports for courts
and - if issues are contested - may be called to a hearing and
cross-examined about their evidence.
4.9 The overall aim of these changes (despite
major opposition[32])
was said to be increased reporting of children cases by the media
and thus increased public awareness, understanding and confidence
in family courts as just and fair.
4.10 Various allegations have been made about
the benefits of press attendance and reporting of family hearings
both in England and Wales and in other comparable jurisdictions.
These are outlined in detail in Brophy with Roberts (2009).[33]
While internationally, rules and practices differ widely, those
in favour of media access to family hearings in private law cases
(predominantly fathers - albeit a relatively small group) argue
courts are biased in favour of mothers, while those in favour
of the move in public law hearings argue local authorities (charged
with the protection of children) have removed children unfairly.
Both groups argue media attendance and reporting of cases will
reveal unfair practices and hold courts and others to account.
4.11 The latter group - along with a limited
number of journalists - have also been critical of expert witnesses
(doctors instructed during proceedings) particularly but not limited
to experts reporting in criminal cases following the death of
a child. Campaigner (including certain journalists) depicted family
courts as "secret", arguing judges and experts are unaccountable
for their views and decisions.
4.12 A change of Lord Chancellor in the (then)
Labour administration resulted in a change of "reading"
of stakeholder evidence[34]
and a change of policy on media access to family hearings.[35]
The new Minister for Justice and Lord Chancellor, Jack Straw,
argued that opening family courts to the media would counter charges
of secrecy; the press would report on the process, not the personal
and intimate details of adults and children involved in cases
and thus address alleged lack of public confidence in the system.
The full background to this change of view and arguably a downgrading
of the interests of children is set out in Brophy with Roberts,
2009.
4.13 Those opposed to media access in children
cases argued hearings are not "secret" but necessarily
private, that despite a formal prohibition on naming children
and parents, they will be able to be identified from press reporting
and it was also felt that press access to hearings would influence
the willingness/ability of certain mothers - and children - to
seek the help of courts (see below).
4.14 Major concerns focused on (a) children's
rights to privacy, concerns about their welfare and willingness
to disclosure abuse and discuss their true wishes and feelings
in the face of media attendance, and (b) the impact on children
and courts of increased delay and costs as courts determine contested
applications (between the media and families, between parents
themselves and between parents and children) about media access
and publishing.
4.15 It was also argued that the media would
largely only be interested in reporting "sensational and
salacious" aspects of cases, that it would in effect "cherry
pick" cases that are not representative of most proceedings,
and would not present a balanced picture or information about
the process of deciding difficult cases - which the public needs
in order to better understand the work of family courts. Many
contributors - including some member of the press - argue that
as commercial enterprises, media priorities would be on information
that sells newspapers or increases viewer ratings.
4.16 Those opposed to press attendance also argued
that given commercial priorities media coverage would be likely
to infringe people's rights to privacy about the most intimate
details of their family life and parenting. In particular some
of society's most vulnerable children would suffer further harm
and risk through media exposure of the most intimate details of
their care and maltreatment. Information would allow children
would be identifiable in local communities - even if they were
not named as such - and they would be likely to suffer further
because of this.
4.17 It was also argued that in general restricting
attendance and reporting in family cases facilitates full and
frank disclosure from parties and thus early settlement of some
cases. In cases of domestic violence and forced marriages it
was argued women would be reluctant to seek the protection of
the court if told (as they must be told) of potential press attendance
at a hearing in which painful and difficult information has to
be shared.
4.18 It should be noted however that there is
agreement across many groups that there needs to be improvements
in publicly available information about the work of family courts
and the decision making process. This is especially the case
with regard to information available to families involved in proceedings.
What is not agreed however is that media is the best vehicle
to meet this agenda (see below).
4.19 It is noteworthy that some 16 months after
the change of rule on media access to family hearings, that there
has been no independent comprehensive monitoring of these issues.
4.20 There are some examples of media coverage
- in newspaper reporting and on television and radio. With notable
exceptions[36]
the picture presented in reporting - ends support to concerns
about accuracy, balance and accountability in reporting.
4.21 Given my discussions with the Assistant
Director of the recent Panorama programme about the use of experts
and a need for a balanced and accurate framework for the planned
programme on the case described above, I am willing to share my
concerns about the subsequent programme with the Select Committee
if that would be helpful (along with other reporting examples).
It demonstrates the validity of concerns - but also underscores
difficulties endemic in an expectation that the media can/will
meet the public education agenda.
EVIDENCE FROM
MEDIA ACCESS
AND REPORTING
IN OTHER
JURISDICTIONS
4.22 It should be noted that many if not most
allegations about "secrecy" and bias within family courts
and most claims made in favour of admitting the press (ie so they
can address these allegations and provide evidence that proceedings
are fair and just) have been rehearsed in other similar jurisdictions
(eg family courts in parts of Canada, and Australia, and most
recently, in New Zealand).[37]
4.23 It should also be noted that allegations
of "secrecy", family courts as a "star chamber"
and judicial bias against fathers continue in these jurisdictions
despite the fact that, for example, the Federal Family Court of
Australia has been open to the press (and indeed the public) for
well over 20 years.[38]
4.24 Other jurisdictions have therefore introduced
additional methods to communicate directly with the public providing
easy access to better and more detailed information about family
courts, judicial decision making and complex/controversial cases.
CHANGES TO
FAMILY COURT
RULES (APRIL
2009) AND PART
2, CHILDREN SCHOOLS
AND FAMILIES
ACT 2010 - IMPLICATIONS
FOR PRACTICE
4.25 It is not surprising that many supporters
of increased media access and reporting of children cases along
with many of those who opposed changes to the rules and Part 2
of the CSF Act are now arguing that the provisions of the Act
are largely unworkable.
4.26 Both groups argue that, if implemented,
Part 2 of the Act will result in adjournments (while judges determine
on a case-by-case basis what information can be reported) - and
will increase costs and delay. For a family justice system close
to meltdown in the face of substantial reductions in resources,
increased applications, and demands for yet further savings as
a result of the public spending review, this is likely to prove
unbearable - for children and courts.
4.27 The 2010 Act sets out information which,
if published, will be deemed "identification" information
and thus a breach of confidentiality; it also specifies certain
"sensitive personal information" which if published
would also be in breach of the Act. Despite the fact that the
Labour government did not set out an evidence base and did not
consult on this latter provision, if implemented, the Act also
allows - all other things being equal - for the restriction on
publishing "sensitive personal information" to be lifted
at a future date.
4.28 Journalists in turn argue that they are
even more unclear about what information could be reported under
the Act while editors will not risk limited resources covering
cases where they are unclear about what may be published and where
media resources may become tied up in applications to resolve
this issue. It is argued that in an industry dictated by "24
hour news coverage" and syndicating of stories, and with
fewer legal journalists, editors will not commit resources where
there is no guaranteed story they would wish to publish.
4.29 Thus in practice, if implemented, Part 2
of the 2010 Act is unlikely to meet the needs of either group
- or indeed the public information objectives set out by the previous
Government. Notwithstanding the implications for children (see
below), in the final analysis it was a rushed, ill-thought out
Bill which, in the absence of appearing in the final "wash-up",
would have been unlikely to have survived And despite assurances
to the contrary, it is highly unlikely to be cost neutral.
4.30 The implications for children lawyers, doctors
and others working with highly vulnerable children are even more
complex: they have to explain to children and young people that
(post April 2009), (a) a reporter might be in court and subject
to the judge's agreement, may be permitted to remain, and, (b)
what information the reporter should and should not report from
a hearing. Child care lawyers and others cannot however guarantee
anonymity in any subsequent reporting - nor can they second-guess
the outcome of an application by the press to publish certain
information "in the public interest".
4.31 Some 22 key children's groups constituting
the Interdisciplinary Children's Alliance argued that provisions
would not be sufficient to protect the welfare and safety of children.
Previously for the most part, professionals were able to reassure
children subject to proceedings that only those connected with
the case would be in court to hear the evidence. That general
position reassured children and enabled most to talk about intimate
and painful events concerning maltreatment by a parent,[39]
or the impact of protracted parental disputes, and their own wishes
and feelings about their future.
4.32 Advocates and clinicians argued that when
talking to children deemed able to understand, they have a duty
- both ethical and according the rights of children under Article
12 of the UNCRC - to tell them that a reporter may be in court.
Practitioners raised concerns about the impact on children's
willingness/ability to then disclose/discuss abuse by a parent,
and their wishes and feelings. This concern was raised with the
MoJ in stakeholder meetings, and in written and oral evidence
at Committee stage of the Bill.[40]
Clinicians argued that it might be in a child's interests for
a doctor to advise a child/young person not to say anything further
in an assessment interview in the light of possible press attendance
and reporting.
THE VIEWS
OF CHILDREN
AND YOUNG
PEOPLE REGARDING
MEDIA ACCESS:
PRIVACY AND
COMPLIANCE
4.33 The above concerns were subsequently substantiated
in a study of 51 children and young people most with experience
of court proceedings.[41]
We found that almost all respondents (79% in the public law sample,
91% in the private law group) were opposed to the decision to
permit reporters into children hearings. The reason for this was
that they said hearings address issues that are "private";
they concern events that are painful, embarrassing and humiliating
for children and an overwhelming majority said this information
was not the business of newspapers - or the general public.
4.34 Almost all young people (96%) said once
children are told a reporter may be in court they will be unwilling/less
willing to talk to a doctor about parental ill-treatment, or the
impact of parents' disputes, or their own wishes and feelings.
4.35 Moreover, children and young people said
clinicians must inform them about press access to hearings at
the start of an assessment interview - and before any substantive
issues are addressed. This enables young people to make informed
choices about whether or how to proceed; they said any other approach
would be dishonest and a betrayal of children's trust.
4.36 These findings indicate substantial problems
for the family justice system. First, where children and young
people are unwilling/unable to talk about ill-treatment, judges/magistrates
may be faced with making difficult and often life changing decisions
about a child in the absence of, or with incomplete, "sanitised"
or changed evidence from the child, and limited or no information
from clinicians.
4.37 Second, findings raise a range of concerns
regarding compliance with Article 12 of the UN Convention on the
Rights of the Child and General Comment 12.[42]
4.38 With regard to information that children
and young people thought might be published, in practice, respondents
felt much information about them (their age, location, schools,
interests and activities, religion, etc) and the content of cases
(the allegations of child maltreatment and failures of parenting)
by their very nature would allow for the identification of families
in local communities.
4.39 Crucially, young people are unconvinced
that formal rules prohibiting publication of identifying information
will protect them. They do not trust reporters, they said information
would get out, allowing them to be identified, shamed and bullied.
Results from discussing a "real" judgment demonstrated
how anxious and distressed children are and how concerned about
their privacy when abused by a parent or where parents are in
a bitter dispute over their care. Most children did not want any
information contained in the sample judgment to be reported in
newspapers (79% in the public law group and 91% the private law
sample).
4.40 With regard to whether any information in
the judgment might be helpful to the general public to know, most
children (91% in the private law group) said "no" and
some were doubtful or indeed cynical of a public education role
by newspapers.
4.41 Young people also said judges and magistrates
must seek the views of children before deciding whether to admit
the press to a hearing. That view - coupled with children's rights
to be heard in any judicial and administrative proceedings under
Article 12, UNCRC indicates welfare and legal representatives
must seek their views in preparation for a hearing.
4.42 Many children objected to parents talking
to the press about proceedings (even though children should not
be identified in any reporting). Objections were strongest in
the private law group (92% objected to this during proceedings,
45% continued to object once cases were concluded - and where
they did not, most included conditions. And overall, almost all
young people (96%) said where children are capable of expressing
an opinion parents should seek their permission before
talking to the press.
4.43 Children and young people do not trust the
press: they said newspapers sensationalise information, or construct
bold headlines that do not reflect the content of cases, and will
"cherry pick" information. They mostly doubted newspapers
would print a truthful story and doubtful - and some cynical -
about any educational function.
4.44 Children feared "exposure"; they
are afraid that personal, painful and humiliating information
will "get out" and they will be embarrassed, ashamed
and bullied at school, in neighbourhoods and communities. They
also feared information once reported, would be placed on social
networking sites on the Internet where it would remain indefinitely.
Fears about exposure are not limited to children in rural and
minority ethnic communities. Whatever adults might believe/say,
children remain unconvinced about the capacity of law, courts,
welfare and legal professionals and indeed politicians protect
them.
4.45 Children were also opposed to any naming
of experts by newspapers - unless the person to be named agreed.
Most children rejected the view that there might be a public interest
in doing this, they said there were other ways to achieve this.
4.46 Young people were also strongly opposed
to reporters having access to any reports in cases (96% in the
private law group). They said this would be a breach of children's
trust and privacy.
CONCLUSION
4.47 The views of children/young people regarding
their privacy and implications for their safety, welfare
and mental well-being - in their schools, homes and communities
(notwithstanding respect for their private and family life under
Article 8 of the ECHR) is somewhat different to that articulated
by some adults and certain key policy makers in government.
4.48 Findings indicate that in the construction
of new rules and legislation regarding media access and reporting
in children cases crucial issues about the welfare and rights
of children and their concerns about privacy, safety and self
esteem - along with the ethnical and practical impact of
new provisions on those working with vulnerable children - have
been ignored.
4.49 As the research indicates, at the point
at which children feel most vulnerable and powerless, it is not
surprising to learn that they may, in effect, "vote with
their feet", "play safe, and say nothing"
in the face of potential media presence. That strategy
however exposure them to further abuse; it also places welfare
and legal representatives and family court judges and magistrates
in an untenable situation.
4.50 In the light of these findings a careful,
more detailed, less rushed and proper consultation exercise should
be undertaken with time for the testing of real alternative approaches
in this field. These should increase accurate information about
the work of family courts in general and specific information
about how courts handle difficult and controversial issues. This
should be in a format that is user friendly and does not expose
already vulnerable and often damaged children to further risks,
and does not subject the professionals working with children to
breaches in ethical codes and children's rights under Article
12 of the UNCRC.
4.51 The implementation of Part 2 of the CSF
Act 2010 should be shelved and existing rules determining what
can be published should remain for the time being. This is absolutely
not an argument to shelve concerns about openness and "transparency".
Rather, in the face of some real and unavoidable tensions between
the remit of much of the media and the needs of children for privacy,
to find alternative avenues to meet this agenda.
4.52 For example, the family court information
pilot needs time to produce sufficient anonymised judgments, this
to be supported to completion and with the publication of the
evaluation report with the expectation that funds will be available
for this endeavour to be rolled out nationally. A more focused,
indexing of judgments placed on the Baili website from this pilot
would enable parties and the general public to explore specific
issues by topic area with headings explaining the issues and complaints
which judgements seek to address.[43]
In additional routine family court open days in all circuits[44]
with endeavours to locate and invite local schools, clubs and
community groups - along with projects taking the work of family
courts into "hard to reach" communities.
4.53 The primary focus with regard to access
to and reporting of child cases should remain (a) the protection
of children from harmful publicity and (b) to continue to provide
an informal atmosphere for hearing evidence so that parties can
feel confident about issues of privacy and dignity when discussing
private and painful events, and (c) to enable justice to be done
where people - and this includes children and young people - might
refrain from seeking the help of the court or from fully engaging
in the process of seeking a remedy, for fear of publicity.[45]
This may necessitate also exploring additional mechanisms (to
the appeals system) for addressing allegations of miscarriages
of justice in specific cases.
September 2010
24 Brophy J (2006) Care
Proceedings under the Children Act 1989: A Research Review,
Research Series 5/06, London: MoJ. Back
25
Brophy J, Shade N and
Ward K (2008) Integrating Diversity into Paediatric Practice,
in Integrating Diversity
and Brophy J & Phoenix
A (2008) The Mundane and the Manageable: Diversity in the Family
Justice System, in Integrating
Diversity:(Thorpe LJ & Singer S) Family Law: London. Brophy
J (2007); Brophy J Child
maltreatment in diverse households: challenges to child care law,
theory and practice, in, Meuwese
S, Detrick S and Jansen S et al (eds) 100
years of Child Protection.
The Netherlands: Wolf
Legal Publishers. Back
26
Jessiman P, Keogh P & Brophy J (2009)) Evaluating the Public
Law Outline, London, MoJ; Brophy J & Sidaway J (2008) The
Public Law Outline in Practice: Stages 1 and 2 in an Initiative
Area. London Family Justice Council; Back
27
Brophy J with Roberts
C (2009) Openness and transparency in family courts: - other
jurisdictions and messages for reforms in England and Wales, Briefing
Paper No 5, Dept. of Social Policy and Social Work, University
of Oxford. Back
28
Brophy J (2010) Media
access to family courts: views of children and young people.
London: Office of the Children's Commissioner for Children - England Back
29
For example, Brophy J
(2009) The voice of the child and evidence-based policy, Fam Law,
Vol 39:271; Brophy J (2009) The Family Justice System and the
Media. Fam Law, Vol 39:1117. Back
30
http://www.bbc.co.uk/iplayer/episode/b00tlczw/Panorama_Please_Dont_Take_Our_Child/ Back
31
Eg Care Matters Partnership Conference: The future of Care Applications,
workshop: Media access to family courts: Lessons from other jurisdictions,
lessons from children and young people. London, (June) 2010 Back
32
Interdisciplinary Alliance for Children - Parliamentary Brief
Paper and Amendments to Part 2 of the CSF Bill (the Alliance consisted
of some 22 major organisations concerned with the welfare and
rights of children subject to family court proceedings. Back
33
See note 62 above. Back
34
Confidence and Confidentiality: Improving transparency and privacy
in family courts (2007a) DCA. Back
35
Confidence and Confidentiality: Openness in family courts - A
New Approach, (2007b) London: DCA. Back
36
For example, feature coverage of the Family Drugs and Alcohol
Court Pilot by Frances Gibbs, Times, 26 November 2009; Amelia
Hill, The Observer, Sunday, 5 July 2009; Juliet Rix, The Guardian,
Saturday 17 May 2008. Back
37
See Brophy with Roberts
(2009) note 62 above.
Back
38
See Brophy with Roberts
(2009) note 62 above. Back
39
Examples of maltreatment suffered by children is outlined in Brophy
J, Jhutti-Johal J and Own C (2003) Significant Harm in Child Protection
Litigation in a Multi Cultural Setting (sample is stratified
by ethnic group and includes a white British group see chapters
2-4 and tables 4.4 and 4.5). Back
40
See Hansards, CSF Bill 2009, Public Bills Committee, session 21st
January 2010 at 2.30 - oral evidence of Sir Mark Potter (President
of the Family Division), DJ Nicholas Crichton, Barbara Esam, NSPCC,
Dr J Brophy but note also views of Mr Bob Satchwell, Society of
Editors. It was also made in writing by the Royal College of Paediatrics
and Child Health. Back
41
Brophy J (2010) - see note 63 above. Back
42
Paragraph 1 of which provides states shall assure the right of
the child to freely express his or her views in all matters affecting
him or her according to the child's age and maturity and giving
those views due weight, General Comment 12 sets out the conditions
necessary for realisation of a child's right to be heard under
Article 12). Back
43
So that the website can build up a sample of cases which address
specific complaints about the system and decision making through
indexing according to issues raised in the judgment (as some other
jurisdictions have done - see Brophy with Roberts 2009, note 62
above). Back
44
Such as those undertaken in certain family proceedings courts
in London Back
45
It is not simply received wisdom that publicity is harmful to
children's welfare - it is supported by clinical evidence - about
short and long term confidence and self esteem - issues which
underscore the successful development of children and young people
into active citizens who invest in and support their families,
and communities and are able to achieve in education and work
environments. Back
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