Family Law publishes a regular blog series by The Transparency Project. This post originally appeared in August 2017 at  Fam Law 908. It is reproduced here with kind permission of the publisher.
In the June issue of Family Law at  Fam Law 693 we wrote (amongst other things) about ongoing efforts to secure factual corrections to a column written by Sunday Telegraph columnist Christopher Booker. This month we provide a progress report on those efforts.
Complaints then related to Mr Booker’s handling of Human Rights Act damages claims and the legal aid framework around them and to the Court of Protection case involving failed attempts to retrieve an incapacitated elderly man from Portugal through the imprisonment of his sister, see Devon County Council v Martins (various judgments). Having been unsuccessful in achieving any amendments through the
newspaper directly, we escalated the matter to the Independent Press Standards Organisation (IPSO) complaining of a breach of Clause 1 of the Editors’ Code (Accuracy). The Sunday Telegraph agreed to make a correction to the offending column and issued a clarification:
‘CLARIFICATION: This article originally referred to Mr Martin’s proposed return to the UK as being “against his wishes”.
We wish to clarify that this was the opinion of his sister; Mr Martin was suffering from dementia and a psychiatrist
appointed to assess his mental capacity in 2015 concluded that he “lacked capacity to make decisions about where he
should live or arrangements for his care”. The reference has been removed.’ A ‘resolution statement’ will appear on the IPSO website. The remainder of our complaints of factual inaccuracy (broadly – the number of appeals, their outcomes, and the characterisation of ‘no order for costs’ as being a ruling that the appellant should ‘not pay a penny’) were rejected by the Sunday Telegraph as being insignificant. We disagree but (as with case management in the family courts) proportionality is our watchword.
Since then we have also had cause to make further complaints to the Sunday Telegraph about Mr Booker’s columns, all on grounds of accuracy and all arising from his reporting of the case Re H (A Child); Re (Interim Care Order: fact finding)  EWHC 518 (Fam).We are not intentionally focusing our energies on Mr Booker but have found that his columns express strong views that are not always adequately underpinned by the known facts.
Mr Booker has tackled the Re H case in two columns so far. In neither has he linked to or even referred to, the existence of a published judgment. We did not think either was accurate and, in particular, felt that the description of the circumstances of the child without reference to the factual background of very significant and life threatening harm caused by the parents, would mean that a reader would struggle to make sense of the case and was likely to be misled. The placement of the child in a psychiatric unit was presented as an inexplicable and outrageous interference with family life with no justification other than the bureaucratically driven need to place him before he reached 16. Whether one accepts the justification given by the court or not, we think that the reader is entitled to know that such reasons have been put forward. Mr Justice Hayden found that the parents had caused significant harm to H and that he needed to be placed in the unit for assessment, and to be free from the influence of his parents whilst that assessment was ongoing. No reader of Mr Booker’s highly critical columns could have had any hope of understanding why these arrangements had been made, or of forming a view as to whether they agreed with the actions of Mr Justice Hayden or not.
We have complained about each article. Our letter to the editor went unpublished so we have published it on our blog along with the complaints.
In a subsequent column on the same case Mr Booker complains that the child has been denied access to his own lawyer (he is recorded as separately represented in the published judgments) and is in effective ‘solitary confinement’. Again, there is a failure to make any reference to the findings made against the parents who are simply described as ‘loving’ without more context. As a result of our interventions the Sunday Telegraph has issued a statement of clarification online in respect of the first column and is due to print a separate clarification in respect of the second. This second clarification encompasses but is slightly broader than the first and reads:
‘A 21 May article about the placement of a 15-year-old boy in a specialist mental health unit (“A gifted child in a psychiatric unit is madness”) suggested that the principal reason for the move was that the unit does not admit children over 16. An 11 June article further referred to the boy’s wish to leave the unit and return to “his loving family”. We wish to clarify that the move was sanctioned by a judge, who also found that the boy’s parents had hitherto misreported and exaggerated his medical symptoms such that they “exposed him to significant harm at the most serious end of the spectrum, ultimately risking his life.” The judge also found that the local authority had failed to properly care for the child in a residential care setting. All these factors determined the judge’s decision and there is nothing to suggest that the move was principally prompted by the unit’s upper age limit. We are happy to set the record straight.’
The Sunday Telegraph has also removed the inaccurate line that featured in the original piece: ‘The need to move him to this place so urgently, when his only wish was to return home, was that the unit’s rules don’t allow it to admit any children after their 16th birthday, which in his case is next month.’
We remain perplexed at the basis of the assertion that the child has been denied access to a lawyer. We note that in other news on the same case Daily Mail journalist Sue Reid admitted conduct that appears to be an obvious breach of Clause 8 of the IPSO code in that she gained entry to the child’s unit in order to interview him by using a false name and identifying herself as a ‘friend’ rather than a journalist. Mr Justice
Hayden struggled with her suggestion at the hearing that she had somehow been led down the garden path by the child’s mother, saying:
‘In her evidence Ms Reid told me that she would “never trust anybody again” by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the “Special Investigations Editor” for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.'(see Westminster City Council v H  EWHC 1221 (Fam) (19 May 2017) and www.transparencyproject.org.uk/judge-flags-complaint-on-behalf-of-child-against-journalist-who-sneaked-into-hospital)
There are great dangers for journalists – and the public who, in turn, rely upon their reporting of cases – if they rely only upon the view or understanding of one party in a highly conflicted case. The judgment of the court is a valuable resource here and it is a matter of regret that some journalists choose not to cross reference or check what they are told with the judgment or with others involved who may have a different perspective. Mr Booker may be a columnist rather than an investigative journalist like Sue Reid, but the duty to be accurate and not to mislead or distort applies equally to those who include opinion in their writing. It is not only a duty under the Editors’ Code, to which the newspapers employing both journalists subscribe, but a basic ethical duty. We are pleased that the Sunday Telegraph has agreed to add links in the recent Booker columns to the relevant judgments in the H case but it would be preferable if they were routinely incorporated at the time of publication (and indeed if the original journalism were fair, balanced and accurate).
In the course of these complaints we have learnt a great deal about the Editors’ Code and how the IPSO scheme works. We have found that the Sunday Telegraph responds promptly but bluntly to complaints made to it directly and that the IPSO process itself is relatively efficient. But it is somewhat disquieting to find that the scheme is only available if the complainant agrees at the outset not to publish complaint correspondence without the consent of the newspaper. In responding to our complaint to IPSO about the Martins case, the Sunday Telegraph took the opportunity to issue some forceful and, we think, unjustified warnings to IPSO about The Transparency Project and its motivations as a ‘pressure group’. In our view it does not reflect well on the Sunday Telegraph that it felt unable to consent to us publishing those criticisms and our rebuttals. We observe that a system of voluntary mediation (as this process is described) that permits a large publisher to publish at will, and when subject to a complaint, say what it likes behind closed doors about the complainant, does not create the level playing field that is normally a prerequisite of such a process . In a case where the journalist under complaint then makes frequent complaints regarding the ‘secret’ family court and the ‘shadowy’ Court of Protection, a somewhat bad taste is left in the mouth. However, we hope and expect that, at our request, at least the gist of the correspondence will be set out in the resolution statement that will be published on the IPSO website by the time this update arrives on your desk or computer.
We hope that our next update will not be dominated by corrections to Mr Booker’s Sunday Telegraph columns and that we can expend our energies on something more constructive.
Chair, The Transparency Project