The Association of Lawyers for Children’s response to the President of the Family Division’s consultation on Transparency can be found here.
Below is a summary of their response :
- ALC relies upon the research conducted by Julia Brophy and colleagues, commissioned by the ALC and NYAS (“Safeguarding, Privacy and Respect for Children and Young People & The Next Steps in Media Access to Family Courts” (July 2014) undertaken by Dr Julia Brophy with Kate Perry, Alison Prescott and Christine Renouf (herein Safeguarding Privacy and Respect for Children))
- children see it as the role of the judge to protect their privacy
- children are anxious about the commercial imperatives of the media
- greater reporting has not lead to better level of analysis by the press to date nor linking to BAILII judgments
- there are practical issues connected with the preparation and publication of judgments including anonymisation and the resource implications for lawyers and courts
- in the absence of proper evaluation it is impossible to assess whether existing reforms have been beneficial or effective
- there is a need for independent review of the concerns raised by young people about further transparency
- they point out that whilst the proposal for later in life judgments for subject children when they attain adulthood seems to have stalled, the possibility of the same judgment being made available to the public at large is now under active discussion – they raise the question generally of how the question of a child reading or being told the contents of a judgment about them should be planned for and managed
- They say that “We are…aware of views that the reporting of family cases, based on judgments, has been factually inaccurate but that practitioners have been so concerned about safeguarding children and their privacy rights that they have not taken issue with inaccurate reporting – precisely because the fundamental inaccuracies make identification unlikely, whereas raising issues about inaccuracy could lead to identification. That may be fortuitous for children and young people, but nevertheless in terms of stated objectives it is highly unsatisfactory.”
- They say that “The ALC has a fundamental concern as to whether the contemporary media can act as a “watchdog” in relation to the operation of the family justice system. An independent inspectorate would be better suited to a system wide evaluation in the face of a complaint and could be made statutorily accountable in a way that in general, would be inappropriate for the media.” There follows a very interesting discussion about the modern press and the state of journalism.
- There are ethical implications for clinicians in terms of informed consent and confidentiality, and for guardians and social working with children – children must be told by these professionals of any risk of publication and this may have a knock on effect on the childrens’ engagement.
- The ALC consider disclosure of documents would not promote either frankness or problem solving.
- They raise a specific concern that early documents disclosed early on in proceedings might be treated by the media as “fact” – unagreed thresholds etc.
- “The ALC remains of the view that the only way to balance the rights and interests of children and young people, against a public interest in open justice and the ability of the media to report on court proceedings, is to do so on a case by case basis…The ALC believes that the courts should be satisfied that the interests of children and young people have been fully taken into account, before making any decisions about media access and reporting of individual cases. In private law proceedings that may mean that children and young people must be made parties to proceedings in order to enable them to express a view or for a view from a suitably qualified professional to be put on their behalf.”
- “…the ALC is of the view that such fundamental changes require parliamentary scrutiny, as was envisaged in the Children Schools and Families Act 2010. Amending the FPR, even if sufficient to effect any such changes, would not involve such scrutiny; that is ironic, when the very issue at hand is greater ‘transparency’.”