What do we do when information is already in the public domain?
And what are the risks to the child if an adult party is identified?
On Friday 8th July the judgment was published of the President of the Family Division in the Matter of X (A Child) (No2)  EWHC 1668. The case came before the President on an application for a Reporting Restrictions Order (RRO) to keep the identities of the adult parties confidential.
Much of the information discussed in family cases is already confidential due to the operation of section 12(1) of the Administration of Justice Act 1960 but if any party to a case wants the court to impose wider restrictions, that party must apply for a RRO. As this is an order which inhibits freedom of expression which is protected by Article 10 ECHR advance notice of any such application should normally be given to the national media via the Press Association’s CopyDirect service. For further discussion about the restrictions on what can be published about family cases see this post.
The complication in this application before the President however, was that he had already published in June 2016 a judgment relating to this case where the birth parents were named. The President commented:
On Sunday 12 June 2016 a well-known and respected legal blog, suesspiciousminds.com, published a detailed report and analysis of my judgment. The birth parents were named and a link was given to a contemporaneous newspaper report of the proceedings in the Crown Court which had reported the birth parents as indicating that they would be launching a fight to recover their child. I make absolutely clear that suesspiciousminds.com was fully entitled to publish what it did and cannot, and should not, be criticised for doing so. Publication of the birth parents’ names, and repetition of the material which was already in the public domain, was prohibited neither by statute nor by order. I understand that, following an approach by one of the advocates, suesspiciousminds.com removed the names of the birth parents and the link. That, of course, was entirely a matter for suesspiciousminds.com. I merely record the facts in the interests of transparency.
On the following Monday morning, 13 June 2016, one of the solicitors contacted BAILII asking for the judgment to be temporarily taken down to prevent any further and wider publication of the birth parents’ names. BAILII emailed me asking “Should we take it down?” When this email came to my attention, I responded to BAILII saying No. The judgment remained, and remains, as I intended, publically available on BAILII.
Following this email exchange, the President was persuaded to grant a further RRO restricting identification of the birth parents until the next directions hearing in this case in July when the issues could be considered again. The matter is listed for final hearing in October. He explained his reasoning in this way:
If the media are permitted to identify the birth parents and to publish photographs of them, the resulting publicity will, in the nature of things, have an impact very considerably greater than if the story is reported without those details: see the well-known words of Lord Roger of Earlsferry in In re Guardian News and Media Ltd and others  UKSC 1,  2 AC 697, paras 63-64. In the unusual circumstances of this case that impact will fall, albeit indirectly, on the adoptive parents, and therefore X, as well as on the birth parents. There is, as it seems to me, and for the reasons articulated by Mr Dodd and Mr Farmer, no principled basis for protecting the anonymity of the birth parents in their interests or for their sake; the only justification for preserving their anonymity in the short term, and I accept that there is such justification, is the pressing need to protect X, and also the adoptive parents, from the enhanced glare of publicity in the interim.
Ms Fottrell puts the point very clearly: to permit the naming of the birth parents would result in intense media scrutiny and the exposure of them to the media glare, which would in turn increase the pressure on the adoptive parents and heighten the risk of X being identified as the child in the case, even if not to the world at large then at least to those in X’s day to day world who know X but are unaware of X’s story. Identification of the birth parents will only add to the overall intrusiveness and the distress involved for the adoptive parents and X.
Discussion amongst the Transparency Project
This judgment and the reasoning for it, provoked some discussion via email.
Louise Tickle made reference to the paragraph cited above about the risk of the child X being identified by further publicity. This was the same argument made against her application to publish ‘Annie’s’ story; see Tickle v North Tyneside  EWHC 2991. Louise questioned what evidence was being put before the court for this assertion.
This was an important point on which Lucy Reed’s and my argument was made in the application for Annie’s story to be told: the assertion that identification would happen was made by the LA with very little if any evidence of how that would happen.
I think this sort of assertion needs to be tested. These parents have been identified before, and as far as I know, nobody has as a result identified the child or the adoptive parents in question. How would the birth parents’ continued identification lead to this happening now? I don’t doubt that masses of media coverage would be hugely distressing for the adoptive parents by the way, who are in an appalling position, (I wonder if their distress could be enough to get a reporting restriction order?), but simply asserting that identifying the birth parents will identify the child and adoptive parents without laying out the mechanisms by which this could realistically unfold seems not very rigorous to me.
Alice Twaite agreed. Although she thought this was the right decision in this particular case, more thought should be given to setting out how harm would be done to the child.
I agree. Specifying how that might happen would be a basic requirement. As with the specifying that happened recently on how it might come about (perhaps) for the Butler appeal if made to be prejudiced.
But in this particular case I feel very strongly that it is the right order. Not just because of the impact on the adoptive parents and indirectly the child but specifically the potential impact for the child of anything that may reduce the confidence and likelihood of the adoptive parents who feel threatened already, having the confidence to mediate some kind of future involving the birth parents for the child if warranted post re opening. Anything that makes them defensive and shut down militates against what may be a crucial option for the child.
Alice, I hear what you say. And I think it’s the right order too, in this case. But the logic behind such automatic assumptions needs more testing.
Failing a demonstration of the mechanics of how the adoptive parents and child could realistically have been identified via knowing the identities of the birth parents, I hope it would have been sufficient to explain the distress to the adoptive parents. Of course, it may not. But if Lucy Reed had been in court on the press association side, I imagine she would have demanded to know exactly how the other side were suggesting that adoptive parent and child identification would take place.
Sarah Phillimore commented that the internet was truly a game changer when it came to issues of confidentiality. If the court did not grapple with this, many others would.
What the President needs to understand is the sheer scale and nastiness of the online community and the fact that they WILL publish information with impunity.
We see a very clear and horrible example in the Hampstead Hoax case and the on going impact on the children in the Hampstead community after that case went ‘viral’, encouraged by many irresponsible and dangerous people. See P and Q (Children) (Care Proceedings: Fact Finding)  EWFC 26.
If these issues and information aren’t controlled and managed by the courts, other far less responsible groups will take the information and run with it and do enormous damage. And I can show how that happens; there are many other examples, Hampstead being only the worst.
In this case the cat is well and truly out of the bag. That needs to be recognised and grappled with and measures taken to protect the adoptive family and X. I think the President knows that as he expresses scepticism of any continued positive effect of the RRO albeit it is the right order now.
We would welcome any further thoughts or discussion on these issues raise. The final hearing in this case is due in October. It will be hugely significant in the continuing debate about non-consensual adoption. We need further consideration about how the legitimate public interest in these serious matters can be satisfied, without causing harm to the child who is now unwittingly at the centre of this storm.