This headline ran in The Guardian on Monday. You can read the article here : Girl’s rape claim upheld in Leeds despite prior no-trial decision
The article explains that although a decision had earlier been taken not to prosecute through the criminal courts, the Family Court was asked to consider the allegations of rape made by a 14 year old girl in the context of care proceedings concerning her cousin, thought to be at risk from the same perpetrator (who was the younger cousin’s father). The Family Court judge, Mr Justice Hayden, dealing with matters on the lower “civil” standard of proof of “more likely than not”, found that the girl’s uncle had raped and sexually abused her over a period of about 8 years.
We were interested in the fact that the report, which is accurate insofar as it goes, refers to “detail of the case emerg[ing] in a ruling published by Hayden on a legal website.”
We thought this was likely to be a reference to BAILII, a charitable website which publishes judgments on behalf of the judiciary, and indeed a brief search on that website using the keywords “Leeds”, “Hayden” and “vigilant supervision” (a phrase quoted in the article) quickly brought up the judgment in the case in question : Re CD (A Child)  EWHC 3286 (Fam) (07 December 2016).
It would have been helpful and very simple for The Guardian to identify the case, and to link to the judgment, or at least to make clear that the “legal website” in question was the free to public website BAILII. We think this is basic good practice.
Although we haven’t seen this story run in any other mainstream newspapers this piece is marked as Press Association, so it has come via that agency and could still appear in identical or similar form elsewhere. It is possible that the original Press Association piece had a link in it, and this has been taken out by The Guardian.
We recently asked The Guardian to include the link to a judgment in another case they had written about, and we’re pleased to say that the journalist did subsequently add that link. We will write to the Guardian Reader’s Editor to ask if they will do so again. We’ll also email the Press Association to see if they can shed any light on the approach that is generally taken to the question of linking to judgments.
It is important for the reader to be able to go direct to the case via a link, or at least sufficient have information to enable a search because ocasionally:
- journalists get things wrong, or
- offer an opinion which others might legitimately disagree with if they had further information, and
- sometimes they just don’t pick up on something important or newsworthy.
- Or just because people might be interested to read in a bit more detail on a topic of interest to them.
Other matters of public interest in this judgment:
It is surprising that the news report does not mention that Mr Justice Hayden was strongly critical of the local authority chidlren’s services for failures in their approach to child protection. He says (para 9) :
The range of the enquiry in this case has not extended to any detailed scrutiny of the safeguards put in place for the children in this extensive family. However, it is clear that Mr A has had wide and effectively unmonitored contact with a significant number of children during the course of these proceedings, all of which has been known to the Applicant. A senior representative of the relevant Local Authority attempted, in a somewhat perfunctory manner, to justify the approach. There is, in my judgement, no cogent rationalisation or extenuation here. I was told that the Local Authority had taken the view that maintaining the stability of this wide and seemingly cohesive family was considered to be important. No doubt it is, but it provides no coherent explanation for exposing these children to risk of harm of the gravity contemplated here. It is a clear example of woolly and confused thinking. It falls far short of what these children, in particular and society more generally, is entitled to expect from the agencies charged with child protection. It is an extremely serious safeguarding failure. [our emphasis]
It is not completely clear from the judgment, but it appears that the abused child fell under the watch of Bradford Metropolitan District Council, although the younger child, now thought to be at risk and subject to the care proceedings in the Family Court was in Leeds, who were the applicant in the case (and are referred to above as “the/this Local Authority”.
At paragraph 23 the judge goes on :
I do not know whether the mother was being truthful in February or whether she was manipulating the social workers. It occurs to me that both could be true. In any event Mrs B now prevaricates about what was said. It also requires to be stated that, in the same conversation, Mrs B asserted that she wanted ‘to support her daughter through this difficult time and will ensure that her children have no contact with [Mr A] ever again’. In this she has woefully failed, albeit with the apparent acquiescence of the relevant Local Authority whose intervention has been supine to the point of irresponsibility. I should clarify that whilst it is not this applicant Local Authority, they too have been aware of the situation, which extends to children in their own area, and have done absolutely nothing to address it. [our emphasis]
Here, the “relevant Local Authority” appears to be a reference to Bradford.
These criticisms of two local authorities for leaving children at risk from a very serious perpetrator are points of interest, and just the sort of thing usually considered very newsworthy, but of course it is up to the press what they choose to report or not.
Level of detail in court judgments on Bailii
It has occurred to us that, rather than being a question of general policy or practice (e.g. “we don’t link to BAILII”), the Guardian / Press Association may have elected not to link to the judgment for other reasons connected to the potential “sensitivity” of the matter. So, for example, the judgment contains some detailed, and at points graphic, descriptions of the abuse, in the child’s own words. Further, the case apparently involves an extended Pakistani family who behaved collusively in failing to support one of their own who was victim to the abuse by a family member. We can see that might have potential to be picked up on by certain elements of the press in ways that play into narratives about muslims and CSA. However, we need to be clear we have no evidence that any of these factors has in any way impacted on editorial decisions – we are simply pondering why The Guardian wouldn’t link to source.
The judgment refers also to the victim’s Cafcass Guardian being requested to “discuss with her, to whatever extent she considers appropriate, my findings in this judgment”, which perhaps sits in tension with Mr Justce Hayden’s decision to publish the detail of the victim’s own words where it may later be read in full and identified by her as her own testimony. However, there is certainly no legal impediment to linking to the judgment and reporting the contents of it. The rubric at the top of the judgment is clear that as long as the child / family members are not identified, the contents of the judgment (and thus the link to it) may be published :
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Generally, the people best placed to decide on what can and should be contained in a published judgment are the judge and the parties to the case, and we assume all relevant matters will have been canvassed as necessary prior to publication, with the court reaching the conclusion that The Transparency Project and others should be free to link to the judgment for the better education and information of the public.
We will update this blog post if we hear back from The Guardian or Press Association.
[Update 4 Jan 2017 : The Press Association have responded to our query, saying
We will endeavour to supply the URL for any publicly available judgment we report at the end of each article. We cannot guarantee to do so in every case, as the information might not be available or might change.
We think that is really good news. It doesn’t of course guarantee that the publication that uses Press Association material will necessarily include the link, but it is a good start.
We’ve yet to hear back from The Guardian Readers’ Editor.]
Feature pic : Transparent dice courtesy of Dicemanic on flickr – thanks!