Last month Dr Julia Brophy, Marisol Smith with Jagbir Jhutti-Johal published an evaluation of the implementation of the President of the Family Division’s 2018 guidance on anonymisation of judgments. That guidance was based upon earlier work by Dr Brophy which itself followed her earlier work evaluating the contents of judgments on BAILII in 2015 with the help of a group of young people whose views fed into the recommendations and draft guidance. Although that guidance was published in 2016 it wasn’t officially adopted by the President of the Family Division until 2018. The evaluation report is a long and detailed document, and we can only summarise it and draw out certain elements of it here. You can read the full report here.
This evaluation follows the same format as the 2015 study in that a group of young people were asked to analyse the contents of judgments published on BAIILII along side a team of researchers. They considered the contents of 30 judgments published in the period 2017-2020 (so some of them predate the 2018 guidance), and the aim was to consider the current state of affairs based on what they saw, to see if the guidance has had any impact and to update recommendations. Broadly, the conclusions are : some progress but not enough – the guidance is not always being followed.
The report makes the following recommendations :
The two key recommendations of the reports authors, who describe the current situation as ‘deeply troubling’, are :
- There should be a halt to posting judgments concerning the sexual abuse of children, and the removal of those already posted, pending a review and full implementation of Guidance on these judgments.
- There should be an inter-department review of the crime-family interface to achieve an updated practice protocol with regard to the treatment of … a judgment intended for the public arena. Use of a schedule of abuse (as used in images in criminal proceedings) should be explored regarding sexually explicit narrative.
- Family justice policy needs to ‘catch up with the digital age – Checklist 1 and 2 (that’s the checklists contained in the 2018 guidance) provide the policy framework. This needs to be delivered through training which should be fully ticketed.No automatic presumption of ‘posting’ of public law children judgments, and a pause in posting children judgments pending the operational changes made in the report.
- In order to facilitate future monitoring of Practice Directions, judgments should reference Guidance within a sub-heading titled ‘Law and Guidance’. Monitoring would be further aided if judicial citations were made more uniform, using a standardised system for all children judgments posted on BAILII. This should be a precursor to any resumption of posting judgments on BAILII concerning child sexual abuse as it would assist monitoring CL2, by making judgments concerning allegations of sexual abuse readily identifiable.
- There should be no automatic presumption of ‘publication’ of children judgments. Following a review and a decision on operational changes (accompanied by a Children’s Rights Impact Assessment) there should be a further limited evaluation to assess progress in judicial practices.
The report identifies this as a key issue :
A key issue is more judicial time for this work – to permit reflective practice and to undertake summaries/abridgment of children’s evidence. Two supporting options are
(a) front loading the preparation of documents at the start of proceedings in a way that is non-disclosive, and
(b) assistance by advocates in anonymisation of documents during proceedings and at key stages utilising […the…] Guidance and addressing both agreed and disputed issues. Any operational changes will have to be adequately resourced.
The report’s publication coincides with the end of the oral evidence phase of the President’s ongoing Transparency Review, and will be passed to the President for consideration by the review before final recommendations are made in the summer.
The evaluation structure
This work is undoubtedly valuable and important, but we think it is worth explaining the structure of it, so that readers can understand its limitations. It is a similar framework to the evaluations of judgments which informed and led to the publication of draft guidance by Dr Brophy in 2016, which ultimately became the official guidance in 2018.
The evaluation is based upon examination of 30 judgments posted on BAILII between 2017 and 2020. The judgments concerned 80 children and judgments were drawn from all tiers of the family justice system (this probably means all tiers apart from Magistrates).
The team of researchers were assisted by a group of young people. Whilst all judgments were read and analysed by the research team, only 12 of them were evaluated by the young people.
As with the previous evaluation, it is impossible to know how representative these judgments were, because we aren’t told how they were selected and the judgments are not identified to the reader. (for understandable reasons) This does matter, because the sample size is quite small. However, there are some indicators that the sample was not representative (for example one judgment named parents, and the methodology specifically selected certain types of judgment to match with the areas of interest or locality of researchers).
The evaluation included an internet search for coverage of judgments – and the children and families therein on media and social media sites. In essence the young people and researchers analysed the information in the judgments, and attempted to use that information to identify those involved from other publicly available information – that is to say they stress tested the anonymisation to see if jigsaw identification was possible.
Although we aren’t able to look at the judgments ourselves to form an independent view, the report does provide five case studies summarising the cases and what was found out by the team from the judgment as a starting point. In four of those the research team or young people were able to use the judgment in combination with the internet to identify the parents and children (one of these was the case where the parents were both named in the judgment, which appears to have been a significant help in identifying the child – we can only think of a few judgments that might relate to, none of which would be at all typical, and where it might well serve little purpose to attempt to prevent jigsaw ID because of the level of public interest /awareness and existing coverage). Most of those case studies involved criminal proceedings / convictions and associated media coverage, which also appears to have been materially helpful in tracking down more information and identifying the parents and children.
What is important here is that the 2015 study told us that the young people thought that it would be possible for peers or those local to the family to identify some children, but apparently did not actually lead to identification : the updated evaluation provides some evidence of actual identification rather than merely hypothetical concern, albeit in artificial circumstances.
The evaluation exercise revealed patterns such as :
- a fair number of the judgments ‘contained ‘within county’ markers indicating the geographical location of children concerned’. This is not a problem per se – it’s only a problem if it actually leads to identification – but it is definitely something to be mindful of, particularly in combination with other information. The report suggests some judgments included information that really ought to have been obvious candidates for redaction – a move from town A to town B, local shopping towns, or other residential history / locations of extended family – when probably specifying the general region would have been sufficient. However, the selection process for choosing the judgments actually deliberately prioritised judgments with geographical markers in them, so as to try and match young people on the research team from the same broad geographical area – so the sample is clearly not representative (and we note that this method didn’t produce enough judgments with the right geographical areas to match with all the young people, which indicates that geographical markers are possibly not that prevalent);
- ‘Some progress was noted’ regarding detailed accounts of children’s problems at school, and regarding detailed cultural/religious backgrounds of families. We take this to mean that there was less evidence of this sort of information being published, presumably because judges are being more thoughtful about including / leaving such information in judgments that are to be published. The report details that some judgments included details such as altercations on school premises involving parents and other family members, children disclosing abuse to friends and teaching staff, accounts of challenging behaviour and incidents at school, fixed period exclusions, attendance problems and interviews with police officers or other professionals – and that there was concern that peers might be able to recognise these descriptions and identify the child (This of course presupposes that a peer would be reading about it);
- On dates of birth there was a mixed picture : While most judgments suggested efforts are being made to avoid specific dates of birth (saying things like ‘a date in 2012’, or ‘early in [year]’), there were nevertheless lapses in descriptions of events which permitted the information to be inferred;
- ‘Limited progress’ had been made with regard to reducing the detail of information about extended family members, a majority of judgments (25/30) contained what the reviewers describe as ‘extensive details’ (elsewhere the report says 11/12 of those evaluated by young people contained information about extended family). The report says young people argued judges should reflect on the necessity for this detail – and the implications of its inclusion for jigsaw identification – in fact we are told the young people ‘argued the test was whether the detail was essential and added something to an understanding of the proceedings’. It’s difficult to assess these sorts of observations – whilst the fact that the inclusion of this sort of information raised the concerns of young people is important – and their general observations that the inclusion of details about families being multi-national, multilingual, living in multi-ethnic or multi-generational households or with complex immigration and/or asylum situations must increase the risk of jigsaw identification must be sound. But presumably the judge, lawyers and guardian with actual knowledge of the case and locality, gave some consideration to whether or not there was a need for redaction of such information before publication and concluded that there was not – without approaching the judge in the individual case, which this evaluation did not do, it’s impossible to second guess whether this is a different evaluation of risk or a failure to properly think through the consequences (or a bit of both). Whilst the young people considered this increased the risk of jigsaw identification, which must be true to an extent, we really don’t know whether the risk of jigsaw identification was low or high in any of these examples – and arguably, even the researchers, with more detailed knowledge of what is actually said in the judgments that we cannot read for ourselves, cannot really know either. The same applies to other categories of information about which concern is expressed – inevitably the reader is frustrated by not being able to see the specifics that the research team are looking at.
- To illustrate further : regarding religious information we are told ‘3/12 judgments identified the religious/cultural background of children/families. The [young people] argued this information should not be published, especially “where the religion is unusual” or where “smaller minority communities could be identifiable.”’ – but the report doesn’t specify and we don’t know whether the religion referred to in the judgment WAS unusual in that community or whether the particular minority community would render the specific family in their specific community identifiable. Nonetheless, the suggestion that ‘in the case of religion, for example, […] judges should reflect carefully on essential detail and terminology; where necessary they recommended alternative forms of words, replacing ‘mosque’ or ‘church’ with ‘a place of worship”’ are sensible and difficult to argue with.
- The report says that ‘Progress towards eliminating the risk of jigsaw identification has been undermined by continued naming of certain local authorities and some trial courts. Naming certain local professionals can further confirm geographical boundaries to the location of children and families’;
- ‘Young people identified that all communities have ‘known families’, with features that make them recognisable. Particular household profiles (e.g. with several adults and children, other young adults staying), poor home conditions, and professional visits make families locally visible: anonymising judgments for these families was a litmus test’. Although we can see the validity of this point, we aren’t sure from the report if or to what extent the judgments actually fell foul of this or if this is just a general observation / comment.
- The report says that ‘The inclusion in children judgments of extensive and specific details about criminal proceedings concerning parents/others in a household (e.g. dates of police visits, arrests, offences, trials, convictions and sentencing) undermine efforts to improve anonymisation because these details provide significant avenues through which to identify a parent(s) and thus children’. We agree this can be a problem and in our guidance on this topic suggested that things such as the date of incidents or convictions rarely needs to be included in a judgment;
- ‘Young people argued that while no single indicator would lead to the identification of children in judgments, it was the cumulative impact of a number of potentially ‘disclosive’ details that raised the risk of exposure. They argued judges need to pause and reflect on the combined potential for identification of children from details – across the JI indicators – which they include.’ We agree with that;
- The young people understandably raised concern and anger at the inclusion of graphic descriptions of CSA – this was quite separate from their concerns about jigsaw identification, but in addition two-thirds of CSA judgments they looked at contained three or more ‘within county’ indicators. The report does suggest that the inclusion of graphic detail is reducing, and that some judgments used summaries/abridgment of those details – so it clearly can be done better. But it is really worrying to read that most of the judgments considered ‘contain[ed] graphic descriptions of a child’s sexual abuse frequently imported, verbatim and at length, from other proceedings/documents primarily criminal proceedings and ABE transcriptions, or reproduced by the High Court/Court of Appeal from the content of first instance judgments’ and that ‘While most judgments also contained a summary at some point, most – by error or design – contain graphic, salacious descriptions of sexual abuse/rape of a child in a document intended for the internet’. We agree with the researchers and young people that there really is no need or justification for this. Although it may be necessary for the original judgment to contain detail in order to explain the forensic background and reasons for a decision, it should usually be capable of editing / redacting for publication so as to minimise or exclude this sort of detail;
- Where professionals were named in judgments, young people expressed concerns that this could contribute to jigsaw identification if these individuals were known to work in particular neighbourhood teams/centres/health services. This is a valid point, but we aren’t told if or how often this was actually an issue in the sample, and its difficult to see how the researchers could have known what the risks of naming a particular professional was without knowing the local / family circumstances – naming staff at GP surgeries, childrens’ centres or schools is probably more likely to contribute to narrowing down of geography / jigsaw ID than naming of the allocated social worker, for example. Based on the case studies the factors which appear to have contributed to the ability to identify children are more likely to be related news coverage arising from connected criminal proceedings, than this sort of information.
The report also tells us that the young people raised a query about whether there was really a need for the published version of judgments to contain so much detail about the parental failure and problems. They thought that the publication of this sort of information was shaming and might lead to distress or bullying of vulnerable children. Of course, that problem is much reduced providing that the family is sufficiently well anonymised so that the risks of jigsaw identification are minimised.
50% of the 30 judgments were covered in national media and local press and news outlets; this included 11 judgments concerning the sexual abuse of a child/young person. The report states that
‘Press coverage in local outlets confirmed the geographical boundaries for children…BAILII is providing a pathway to revealing the identity and locational factors, putting vulnerable children at risk of being traced’.
The report raises the ‘symmetry’ in the searchability of press/media and other coverage of judgments. They say that
‘Key words used by media/press/other social media platforms in relation to judgments can be used to search BAILII, taking a reader directly to the judgment – with full graphic, salacious descriptions of the sexual abuse/rape of a child/young person that it may contain’.
We can confirm that symmetry exists – we often use precisely this sort of keyword search to identify the judgment that a media report is quoting from, in order to check the report is accurate and fair. This ‘symmetry’ is not inherently problematic – it is simply useful functionality. As long as identifying or salacious information is removed from a judgment before publication (which it appears isn’t always happening) there should be no difficulty. Whether such techniques are in fact utilised more widely than for legal / journalistic searches like ours is a matter of speculation. We doubt very much that peers or ordinary members of the public without a particular prior interest in the case or subject matter are going to be carrying out the sort of investigative searching that The Transparency Project, journalists and the young people and researchers engaged in this evaluation carried out – and the methodology section shows that the young people were given detailed instructions in the form of a protocol as to what they should search for and how to drill down to identify families and children, which arguably few young people would be independently motivated to do. The report implies that those with a salacious or sexual interest in such material might be making use of the ability to reverse word search to get to a judgment for gratification or in order to seek out the subjects of it – that is certainly possible, but whether it is actually happening is not directly evidenced within the report.
Judgment style – lessons from young people
The report isn’t just full of criticism or lists of what should NOT go in judgments. There are some really interesting and thoughtful comments from the young people about what they felt worked well and the positive things they saw in some of the judgments, and these comments give some useful pointers for judges :
- The young people liked judgments which provided a ‘route map’ by way of an introduction and paragraph headings; they were critical of those which they felt lacked a clear structure and headings. Of course, this is as important for adults as it is for young people.
- They rated having an explanation of the tasks and duties of judges, and in language accessible to a lay audience.
- They liked judgments which stressed the importance of fairness and due process for parents, and which recognised that despite problems, a parent may wish to care for their children.
- They liked judgments which said that the children were in no way to blame for court decisions to remove them from birth parents along with explanations as to why children could not be placed with family members. They liked a clear focus on the importance of sibling relationships.
All those things matter and need to be said, and we have noted more and more judges doing this as a matter of course.
The young people don’t seem by the way to have been too attracted to the practice of naming and shaming in cases of failure – suggesting that such words come too late for the child at the centre of the case, and worrying that naming might contribute to jigsaw ID (see above).
Involvement of subject children
There is some powerful food for thought for those who represent children in proceedings in the report – something we have raised before is the early case management responsibility of those working with children of sufficient age to provide them with accurate information about the process they are engaging with, rather than hoping or assuming no transparency issue will arise in the particular case and that they can avoid dealing with it (as we suspect happens rather a lot) :
Young people expressed anger at an apparent lack of consultation or information sharing with them regarding placing graphic descriptions of their sexual abuse/rape on a public website. Legal and welfare agencies need to reassess codes of ethics/conduct regarding young clients; this to cover not simply responsibility and timing for telling young people that the media may be in court, but also that a judgment may be posted on a public website, and what it is likely to contain.
It should be mandatory – and a point of ethical practice and respect for young people – to explain how their rights under Article 12 (with Articles 13, 16, and 17) of the UNCRC will be implemented so that they understand the terms under which they express a view and give evidence. This is an early case management responsibility. Decisions not to tell young people about these issues may meet the needs/fears of professionals but it is at a cost to children and young people in terms of their future privacy rights and safeguarding needs.
The report asserts that in some cases the subject children had not been told or consulted about the publication of the details of their abuse. We can’t see what that is based upon (it is unlikely to feature in the judgment), but we do agree that young people (where of sufficient age) should be consulted and it is the joint responsibility of the judge and child’s legal team / guardian to ensure that has happened.
We consulted some young people through our workshop in 2020, and through this gained some insight into their views about publication. Whilst it is fair to say that they were anxious about the idea of publication of judgments, what was important to them was feeling that they would be consulted before a decision was made. We suspect that the focus of the work the young people in this study were asked to do is likely to have heightened their natural worries about publication – particularly since most young people will have no experience of being told or consulted about these issues in the course of their own cases. You can read the full workshop report here, but this is the agreed summary of the input of young people :
The young adults who attended the workshop (former subject children) were able to articulate their concerns about decisions being made about who should see their judgments or case papers (including whether they should be published) without their views being sought, and about how it might feel for a child to later find out that this had happened, particularly if they were to inadvertently identify that a judgment was ‘their’ judgment. It was important for these participants to feel that they had access to their own materials for their own purposes (subject access requests were generally thought not to be a user friendly or effective way for former subject children to gain access to their records), and that they had some sort of control over them. Their indication was that (hypothetically) they would be somewhat reassured if the decision making process about publication involved them, even if the judge’s decision was contrary to their preference. They raised the legitimate question of how these issues of involvement and control could be managed where children were much younger at the time decisions were being made. There was a recognition that with respect to younger children and generally, decisions need to be made on a case by case basis on their behalves, considering what information should be contained in / excluded from published judgements, and planning for these children to be supported to access and understand the contents of their judgments in an age appropriate way in due course.
The Transparency Project’s position
In 2017 we published our own guidance on the publication of judgments, which you can read here. In many but not all respects it covers similar ground to the President’s 2018 guidance, aiming to help professionals and parents think through the risks and benefits of publication, and the particular matters which might potentially be identifying and how they might be dealt with.
We have written about the 2018 guidance and the work of Dr Brophy that led to its publication before, for example here :
and here :
We were worried about two things when the 2018 guidance came out :
- ongoing problems with poor anonymisation practice, which on occasion was identifying or potentially identifying children;
- the way in which the 2018 guidance might be interpreted, leading to removal of information from judgments that did not need to be removed and which was therefore not actually justifiable, in particular the anonymisation of local authorities and social workers – which the guidance tended to suggest should be presumptively removed, contrary to previous guidance and case law.
In our written evidence to the Transparency Review (which you can read here – see in particular paragraphs 92-106 and 205-215) we raised our continuing concern about this latter issue, inviting a review of this aspect of the guidance, and we noted that (from our anecdotal observations) there seemed to be less publication of unnecessarily graphic detail of sexual matters in judgments since the publication of the 2018 guidance. We also raised our very real concerns about risky anonymisation practice, and gave details of the number and nature of referrals we have had to make to BAILII and to judges in order to secure correction or removal of incompletely anonymised judgments. We called for better processes and more resourcing of this issue to support more robust and reliable anonymisation practice, in our view through a dedicated anonymisation unit. We said :
Our hypothesis is that such a unit could simultaneously further the public interest in the workings of the family court being made publicly accessible, and would better protect the children and vulnerable adults whose privacy it is essential to protect.
So, there is a lot of common ground between The Transparency Project and the views expressed in this report :
Firstly, we acknowledge and agree with the views of the young people whose voices come off the pages of this report – not just about the benefits of well structured and sensitively written judgments, but also about their anxious, angry and upset feelings about some of the contents of judgments that have been published to date, in particular judgments with a CSA element (albeit not their own judgments). We note the comments in the report about the need to involve and consult young people involved in such cases before publication – we certainly agree with that and are perplexed as to why it does not happen more routinely.
We are in broad agreement around the need for more thoughtful anonymisation / redaction practice with an eye on jigsaw identification, and the particular issues around judgments dealing with sexual abuse – and the desperate need for proper resourcing to enable judges to do this well. This is not a new issue. The 2017 evaluation into the implementation of the 2014 guidance on the publication of judgments (funded, like this evaluation by Nuffield, and carried out by a number of members of the TP team) identified judicial reluctance to publish was in part driven by time pressures. Our response to the call for evidence and plea for an anonymisation unit followed. Both HH Bellamy (our patron) and Sir James Munby (former President of the Family Division and proponent of greater transparency / publication of judgments) have both called for the creation of an anonymisation unit :
This anedcotal report of one judge’s views is probably representative of the views of many overworked judges :
The current arrangements and workload are not conducive to the writing of well crafted accessible and sensitive judgments, to improving rates of publication or to better and more reliable redaction and anonymisation practice. Whilst the evaluation calls for more time and more resource, it stops short of really defining how that might work or of adopting the anonymisation unit idea.
We do perhaps have a somewhat different perspective to the research team as regards the question of the extent of anonymisation of courts, local authorities and professionals (by which we mean court system professionals (lawyers, judges, social workers, experts etc rather than community professionals such as doctors, teachers or treating hospital staff). Although there will always be a minority of cases in which the inclusion of the court location or identity of the local authority would be identifying in combination with other essential information, it is rarely necessary (or justifiable) to remove the name of the local authority or court – in most cases the removal of other potentially identifying information from the judgment will do the trick – and we think that is where the focus should be. There may more often be a ‘jigsaw ID’ justification for the anonymisation of the name of a particular social worker, and usually less of a public interest in naming a frontline social worker than the local authority or senior manager – but again this will need to be dealt with on a case by case basis. We are uncomfortable with the repeated references in the report to the ‘elimination’ of risk – although almost always caveated, the idea that one can eliminate risk is simply not realistic. And as a matter of law the exercise the court has to carry out is a balancing of competing rights not a zero sum game. Guidance which focuses exclusively on the elimination of risk has potential to distort or undermine the balancing exercise required by law. That said, this evaluation report ought to (re)emphasise for judges the need to take great care when carrying out their proportionality exercise as to how they can achieve sufficient publication whilst also maintaining privacy rights and safety by ensuring proportionate proper redaction / editing etc.
As regards the suggestion that judgment publication should be halted or that whole categories of judgments already published should be removed – it would be one thing to invite the President to set up a review of the continued publication of any of the 30 judgments where there is reason to think there has been an error, to be carried out by the trial judge in each case, so that a decision can be made by that judge about that particular judgment. It is quite another to suggest that the President should just ‘pull’ judgments wholesale when no party concerned has raised any concern about them and when the judge has presumably carried out an exercise in deciding whether to publish and how to anonymise whilst the case was live. As set out in Re X the proper process is for the judge concerned to be alerted, unless she has retired (we note that Re X was published in 2016 and it whilst it refers to better processes being planned we are not aware that this ever actually happened).
When we have contacted judges about apparent anonymisation errors we have found that in almost all cases we have correctly spotted an inadvertent error which has been swiftly corrected, but occasionally we have been told that the inclusion of the information was intentional and that the concern we have raised has been considered and weighed in the balance before the publication decision was made.
We don’t think that publication should be halted – that would be a regressive step. The subject matter of family court judgments will always be difficult and upsetting for the young people reading them (regardless of whether the judgment is ‘their own’ or not), but in fact ensuring the healthy function and accountability of the system at large through a measure of transparency is an arrangement that is for the collective benefit of all the children who pass through the system. Much of what the family court does is uncomfortable and difficult, but it is done because it needs to be done to make things better.
Instead, we think that any individual judgments considered by the team to be problematic could be referred to the publishing judge for reconsideration by them, and more broadly : judges – and professionals – should be reminded of the importance of getting it right first time around when publishing, and that hopefully as an outcome from the Transparency Review, support for them to do so should be put in place. Let us not retreat behind the curtain. Let us just do better.