Last Wednesday, the Mail and the Sun published an article about a father who had just withdrawn from eight years of family court litigation. This man had been trying to re-establish his relationship with his children. His ex, the judge explained in a published judgment, had frustrated his attempts and poisoned the children against him.
I am not going to launch into a discussion of the much contested concept of “parental alienation”. Instead, I’m going to look at what readers of those news outlets would have understood about this case from the headlines they were supplied with.
Both headlines stated that the judge had “banned” the father from seeing his children.
But no interpretation of the judgment (A (Children : Parental alienation)  EWFC B56 (24 September 2019) could possibly have justified using that word. I tweeted as much :
The father had made his own decision to stop the years of court hearings: presumably he either saw no prospect of success, or believed the ongoing litigation was harming the children, or both. But, in the hours before the headlines were corrected, the “father banned by judge” version went round the world. (The Sun’s standfirst still says the father “will not be allowed to see his children”, which is not quite the full truth, but there we go):
It was a shame, not only because (as BBC journalist Sanchia Berg pointed out) this judge publishes frequently – one of very few family judges who do – but also because the copy in the articles was correct, and for a news piece, pretty comprehensive about what had transpired in a very sad case. The Press Association copy on which I imagine the articles were based was correct. I believe the journalists who wrote these articles were badly let down by their sub-editors. Far more importantly, so were their readers.
I wonder if what went on in the newsrooms was this: whichever paper published first had a sub-editor on that story who didn’t read the copy properly – or the judgment – and quickly stuck “banned” in the headline because it sounded dramatic, and if the court had done something extreme, unreasonable and unfair.
Then – I speculate – whichever newsdesk saw that article go online, copied the “ban” word into its own headline.
And then it spread, because loads of people don’t read beyond the headline.
However it happened, news outlets shoot themselves in the foot when they publish headlines like this: it diminishes goodwill towards media reporting of family law cases, it destroys trust that we can do a decent job of informing the public of what is actually happening in family courts, and it discourages judges from taking the time and trouble to publish judgments when what they say is so badly misrepresented.
It also leads to entirely misinformed abuse of the family court system: there is no doubt there are some serious failings in the system, and sometimes shocking abuses, even leading to successful human rights claims. But for god’s sake, can’t we as a bare minimum be accurate in what we publish? It is only in this way that we can build up trust that has been shredded by this type of headline, and only in this way that we will gain sufficient legitimacy in the eyes of those whose primary concern is vulnerable children, to be enabled to carry out our proper watchdog role, scrutinising and holding the state – in this case in the form of the family court – to account.
Now, however, on to something I found really interesting, but that wasn’t touched on at all in any of the reporting of this family’s situation. And I can quite see why.
It related to one of the experts in the case. And I wonder if this was in fact the issue that could have made an interesting, and important, story about what happened to these children – and how the system may actually have harmed them.
As soon as I read this judgment, I thought “oops, something has gone pretty badly wrong here” – but the thing is, by now I’ve learned how to read between the restrained lines. I don’t think everyone would have noticed, and even if they had, there was far too little to write anything about.
This is what HHJ Wildblood said in his judgment:
“I now need to say some words about the arrangements that were made for the children to move from the care of their mother to their father. About two years ago I heard three days of evidence and argument following which I gave a full written judgement. By my order I directed that the children should live with their father for just over seven weeks on the basis that they would not see their mother during that period. In my opinion, the handover went badly wrong; the children were extremely distressed and resistant to the attempts to place them with the father. The schools became very concerned about the level of distress that the children were showing, and the police became involved. Within a short period of time after the children started to live with their father, they ran away from their father several times, refused to eat and exhibited extreme distress. So extreme did matters become that, after further attempts at keeping the children with the father, they returned to their mother less than a month after the hearing. They have remained there since with the father having no more contact.”
“The schools became very concerned.” “.. ran away from their father.” “Extreme distress”.
This had been an absolute car crash of an intervention to try to “solve” the issue of the children not wanting to spend time with their father.
But that first inkling that something has gone badly wrong with decisions made for the children doesn’t come till a long way down the judgment. It is at point 14 – and by then you’ve had to plough through 2,484 words.
You then don’t reach any sense that one of the expert’s recommendations might have been ‘iffy’ till point 16. Here, the reader starts to understand that an expert called Ms Karen Woodall – who the judge chooses to name (along with the other experts) – may be being criticised.
However, the judge immediately goes on to suggest that it would be disproportionate to undertake an investigation into any such criticisms.
i) My role is to determine the applications before me. The issues that have been raised do not affect the outcome of these proceedings.
ii) To examine all the issues that the various parties have placed before me would involve a hearing of about five days of evidence and at least two more in reading and judgment preparation. To do that fails on each of the five factors within Rule 1.1(2) of The Family Procedure Rules 2010 (the over-riding objective) and would take this case beyond the guidance in Re W (A child)  EWCA Civ 1140 and A Local Authority v M and D  EWHC 219 (Fam).
iii) These proceedings need to be finished. They have gone on for far too long and with far too much distress to the family.
iv) Any such hearing would be extremely expensive and could not be placed into my lists now until the end of March 2020. The experts would have to give evidence and Ms Woodall would almost undoubtedly have to be represented (as she was before me today).
As a journalist reading this, I then thought, “oh right – well, there’s not going to be any hearing, no disciplinary, nobody will talk to me if I call them up to find out more as it’s family court stuff, I’m not going to be able to write anything about it.”
At the start of point 17, you then discover that no party is even pressing for a further hearing to work out what, if anything, went wrong with the expert’s evidence. So, as a journalist, I’m now thinking “well, if they can’t be bothered, is whatever went on really that bad?”
But… but… next line along, read this:
“In written advice to the court two years ago Ms Woodall had said this: ‘I have absolutely no doubt, based my extensive experience working with the children should these children be moved to live father, they would emerge from the alienated state of mind within a matter of minutes.‘ “
That made me think : “Seriously? A matter of minutes?” This expert had said something that seemed inherently unlikely given that the children had not seen their father for years. And then the handover, as ordered by the court, after listening to an expert’s recommendations, had clearly gone disastrously wrong.
It made me want to read on – it makes me want to know more.
However, at this point, the judge explains that he:
“did not accept that view at the hearing when I considered it. Today Ms Woodall acknowledged that she was being over-confident when expressing that opinion.”
Keep reading and you’ll see that the judge goes on to say:
“I recognise, however, that the plans that she created were available for scrutiny by the court and by the other witnesses. …… It could not possibly be right to suggest that the responsibility for that lies with one person…. I did not follow the advice of Ms Woodall..…”
So… hmmmm. This expert gave some advice, some of it was followed, some of it wasn’t, the decisions made by the court weren’t entirely reliant on Ms Woodall’s evidence, other experts also gave their views, and the judge is clearly backing off.
In no news organisation I have ever worked for is this a story I could possibly pitch or make stand up, with what is said in this judgment.
But… you know what, I think there is a story there. It is swallowed up in lots of qualifiers, and clearly no party was willing to pursue the issues in court. As the judge said in terms, something “traumatic” happened to those children. But we aren’t allowed to know any more.
It’s not enough for a journalist to report. But I’d like to. Because experts’ opinions matter. They are expensive. Their recommendations are taken seriously by the courts. Their views affect, and sometimes change, outcomes for children. And they often appear in many cases.
If a judge wants to make a point about any aspect of a case that concerns them, it needs to be clear, unambiguous, and ideally, be at least flagged nearer the top of the judgment. Look at what Mr Justice Keehan does in one of his recent Herefordshire S20 judgments. where, at the very top, he states:
1. This judgment concerns two unconnected young people who have been accommodated pursuant to the provisions of The Children Act 1989, section 20 (the 1989 Act) for a very considerable period of time. Their treatment by Herefordshire Council (‘the local authority’) represents two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge. (my bold)
That is something I can explain to an editor, and the way the judge continues to explain what what happened, its impact on those children, and identifies the failings of the local authority, means there is a lot to write about.
Let’s go back briefly to the the “banning” headline.
How do we stop this type of poor journalism?
Training is part of it. I want to create a training programme for the Open Family Court Reporting Pilot that I want to get underway next year. I intend to approach all major news organisations to see if they will support the pilot, and send their journalists and sub-editors on the training, as well as commit to undertaking more family court reporting.
I also want to create a reporting protocol, like the Samaritans have done for reporting on suicide, and as the charity Level Up has done more recently for domestic abuse reporting (https://www.welevelup.org/media-guidelines)
Training is relevant when we assume news organisations have no agenda. And yet… I think some of them do. It’s an anti-court, anti-judiciary agenda, and it feeds avidly off the suspicion and lack of legitimacy that arises out of the secrecy of family courts.
There is an urgent need for improvement in reporting of our whole system of family law, but it’s a two-way thing. We don’t prevent any reporting of other aspects of our society simply because some journalism is sensationalised, inaccurate and harmful. The media must aim for better standards. And we have to keep showing how it could, and should be done. And the family law system must start to understand, far better than much of it currently does, that in order to have legitimacy, it has to accept it is accountable. And it has to open up.
Image rights – Old Boots by Miss Emma Gibbs Flickr at creative commons