Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the February 2019 issue,  Fam Law 203.
On 7 December 2018, Sir Andrew McFarlane, the President of the Family Division, issued some practice guidance to judges entitled Practice Guidance: anonymisation and avoidance of the identification of children and the treatment of explicit descriptions of the sexual abuse of children in judgments intended for the public arena(see January  Fam Law 68). In it, he refers to a report written by Julia Brophy and published by the Association of Lawyers for Children (ALC) in July 2016 (J Brophy, Anonymisation and avoidance of the identification of children and the treatment of explicit descriptions of the sexual abuse of children in judgments intended for the public arena: judicial guidance, available on the ALC and Nuffield Foundation websites). The President says in his guidance:
‘I am issuing this guidance to endorse, expressly the two checklists contained in the report which are annexed to this guidance. I wish to encourage all judges to refer to these checklists when publishing any judgment in a family case relating to children. I believe that judges will find the checklists to be of real help in writing anonymised judgments.’
As far as we can see, the President is endorsing the checklists exactly as they were set out in the 2016 report. The preliminary text also borrows heavily from the original guidance document, although with some modification, such as the potentially significant removal of the word ‘better’ in this sentence: ‘the guidance aims to help judges strike a better balance between the policy that more judgments should be published, and the concerns expressed by and on behalf of young people about the implications for them of placing personal details and information in the public domain, in particular in relation to inadvertent and jigsaw identification’. The aims as stated when the guidance was first published in 2016 have also been removed.
The President has not made any reference at all to subsequent research that published some specific findings on the problems and challenges judges experienced with anonymisation (J Doughty, A Twaite, and P 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, Cardiff University, 2017) nor to the judgment in which Mr Justice Hayden did not follow the approach taken by the Brophy report (Re J  EWHC 2595) nor to The Transparency Project’s recommendations on safe anonymisation (Publication of family court judgments; Guidance note). All of these have been publicly available for some time.
There has been some negative reaction from the press and a few lawyers to the apparent reissuing of the 2016 recommendations, especially regarding the extra protection they offer professional and expert witnesses. The Transparency Project discussed the guidance in our blog post, dated 10 December 2018, ‘Anonymisation guidance – a curtain of secrecy?’. Here, we focus on the reactions that some parents had to the publication of the guidance document.
As a parent who has gone through both public and private law proceedings, I was personally disheartened by this guidance. My feelings were echoed upon reading various social media sites through which parents in similar positions express views. Many feel that what Sir James Munby gave, Sir Andrew McFarlane has taken away. Going through public law proceedings is one of the most disempowering experiences of one’s life as a parent. Having an entire local authority deem you not ‘good enough’ to look after, safeguard, protect and care for your own child is a crushing blow. In those circumstances, many parents feel aggrieved, attacked and invalidated and it is much more difficult to see what the concerns of the local authority are, and why you have become embroiled in a legal process you can neither understand, nor easily navigate.
We ask an awful lot of parents in those 26 weeks of public law proceedings. We ask that they recognise the concerns and risks associated with their parenting, that they then demonstrate insight into the impact of those risks on their children, then take steps to rectify their behaviour through therapy or engagement with services, make changes, sustain those changes and at the same time attend every contact session, meeting, assessment and court hearing – all the while learning the language of the court and trusting that, on the balance of probabilities (whatever that means), they have done what they need to be “good enough”.
Going through my own proceedings in respect of my new-born, removed at just six days old, I knew that the judgment in my case could end up on BAILII. This was partly because I had started to read some judgments on BAILII but also because the likelihood of publication was drawn to my attention in the proceedings. At present, we still do not know how often parents are told about this. I very distinctly remember discussing it with my counsellor at the time. She asked me how I would feel to know that, even though anonymised, my family history . . . my ‘dirty laundry’ . . . was there to be read and judged by anyone. That people who knew us would be able to work out it was me and read about my case. My response surprised her. I was hopeful it would be.
I, like many parents in my position, fighting for the return of my child, felt there had been mistakes made. I keenly felt that enormous power mismatch, that injustice, that desperate yearning for my child and that overwhelming feeling that this was plainly wrong. So yes, I did hope that my judgment was published, and my local authority, and the experts involved in my case held to account for what they had done to my family. I knew I had made mistakes, that I had let my children down and that at one time I had not been ‘good enough’. I could hold my hands up to this. But I also knew that the ‘system’ had not been helpful. And I, as a mother, was not a professional working to a code of conduct, bound by rules, regulations and legislation. It was about validation. Although every parent responds differently, I am not unique, or alone in those feelings.
I am acutely aware that my feelings about any published judgment did not necessarily take into account that, 15 years down the line, my child might not share my indignation and might not want his early life to be accessible to the general public. I cannot deny or downplay that this anonymisation guidance is informed, in part, by young people who do not want their lives to be reading fodder for law students, social workers, or Bob who lives up the road. However, other children may hold a different view, and this also needs to be respected and listened to. Children and young people who have been through care proceedings are part of a family, and that is often forgotten. When the lawyers and social workers and foster carers are gone, we are still a family, however dysfunctional or parted.
In response to this new anonymisation guidance, there is a real, palpable rage from parents who have lost their children, or who are fighting to have their children returned. We remember the clear message from Sir James Munby before his appointment as President, about balancing rights to a fair trial, to respect for privacy and family life, and to freedom of expression in Norfolk County Council v Webster & Ors  EWHC 2733 (Fam)  1 FLR 1146. His message was consistent throughout his term of office, both in his judgments and in his public speaking. We remember social workers, children’s guardians and expert witnesses being named in judgments, because of his practice guidance. We remember that he felt like an ally then. We remember the playing field feeling that little bit more level. Now we feel cheated. Now we are asking who this anonymisation guidance serves. It doesn’t feel like it serves us, the families at the sharp edge of the most serious interventions by the State into family life.
It doesn’t really matter to parents that this is ‘guidance’ and not law. It is not obvious to parents that the legal exercise a judge must conduct is unchanged, and that these decisions always did and always will depend on the unique facts of the case. It is not clear to parents that Sir James’ previous guidance of 2014 has not been revoked, but instead built upon. And it’s confusing to parents that this new guidance is based on research conducted more than two years ago with small numbers of participants. I’ve read The Transparency Projectblog’s explanation of the guidance in the context of the law, but many parents will be relying upon the summaries (inaccurate or otherwise) that have appeared in the mainstream press and shared on social media. It is the signal that the publication of this guidance sends into the public domain that matters, as much as its actual content. What matters is that it feels like we have gone backwards. Secrecy, unaccountability and disempowerment are creeping back in.
The 2007 report by Doughty, Twaite and Magrath (above) identified significant variations amongst judges in England and Wales in their compliance with the guidance to publish on BAILII issued by Sir James Munby in January 2014. Some judges never send anything to BAILII, so do not apply any anonymisation systems. We cannot therefore predict how much effect this new practice guidance will have, but it may be that it will send as much of a symbolically powerful signal to wavering judges as it has to indignant parents. We should not discount the new concerns that it has raised. Our system can only improve if we listen to each other.
Transparency Project Coordinator