The recent decisions of Hayden J concerning a 7 year old boy, whose mother insisted he wished to be raised as a girl, set out a wide variety of the issues that concern the Transparency Project and which have provoked strong emotion for many readers.
- a complicated set of private law proceedings that turned into care proceedings, featuring parental alienation and transfer of residence from mother to father;
- a press eager to report on the more salacious and unusual details of a young child’s circumstances, indicating possible conflation of ‘in the public interest’ and ‘what the public are interested in’;
- a young and vulnerable child who has already suffered significant harm;
- significant failings on the part of the State, not acting to protect a child when his parents could not, or would not.
In light of the considerable media interest already expressed in this case, we now try to set out and clarify what happened and why. We appreciate that the judgments are long and may not be easily digested by readers who are not lawyers – but if you are concerned about these issues raised, we of course recommend that you read the judgments in full.
We examine the first judgment by Hayden J, which set out the history of the court proceedings between the parents and why the court ended up removing J from his mother to his father’s care and making a care order in favour of the local authority. This is Re J (a minor)  EWHC 2430, heard in July 2016.
It is a matter of concern that this judgment appears already to have fallen victim to some misinformed criticism – see this petition ‘Justice for a young trans girl that has been take from her mum and forced to live as boy’ . The finding of the court is explicitly that J is NOT ‘trans’ and J is NOT being ‘forced’ to live as a boy. Rather, J’s mother imposed on him her own distorted perceptions of his gender identity – and in so doing, caused him significant harm.
The mother repeatedly asserted that J had ‘Gender Dysphoria’ – this is a term describing the discomfort or distress caused by the discrepancy between a person’s gender identity (their psychological sense of themselves as men or women) and the sex they were assigned at birth (with the accompanying primary/secondary sexual characteristics and/or expected social gender role).
However, there was no reliable evidence before the Judge to suggest that J was or is displaying any signs of ‘gender dysphoria’ – and quite a lot of evidence to say he was not.
We then consider the analysis in the second judgment, re J (a minor)  EWHC 2595 which grappled with the balancing act required between the right of the press to report upon this story and J’s right to privacy, This judgment is a master class in clear articulation of the relevant legal principles and their careful application to the facts of the case before the judge. While the legal principles may be easy to identify, their application is often not straightforward and requires careful analysis of the competing principles.
First Judgment: Why was J removed from his mother’s care?
By July 2016, J was 7 years old. His parents split up when he was about a year old and he lived with his mother and spent time with his father. However, in 2013, his mother stopped contact; arguing variously that the father was violent and abused alcohol but also refused to admit J wished to ‘present as a girl’.
The father made an application to have contact with J in ‘private law proceedings’ (i.e. court proceedings between two individuals, rather than ‘public law’ or care proceedings involving a local authority). HHJ Penna heard a finding of fact in April 2014 where the mother failed to prove her allegations about the father’s violence. However, a Cafcass report concluded that there should be no contact between J and his father because of the acrimony between the parents. HHJ Penna was unhappy with this. Hayden J found HHJ Penna’s instincts to be ‘entirely correct’ and was scathing in his criticism of the poor quality analysis of the Cafcass report.
HHJ Penna ordered further investigation by the local authority, by way of a report under section 37 Children Act 1989 which made ‘very disturbing reading’ (para 11). The local authority had information from ‘a wide variety’ of sources raising serious concerns about the mother’s mental health. Despite the school’s clear views that J did not present any differently to other boys in his class, the mother was asking about sending J to a ‘gender re-assignment clinic’. In May 2014 the housing department was informed that J had been ‘diagnosed as transgender’. This was not true. The mother was claiming he was a victim of ‘hate crimes’; the police and NSPCC were brought in. The ‘widespread unease’ about J was becoming a ‘clamour of concern’ given his isolation and reports of his mother’s irrational behaviour.
It is particularly concerning to note Hayden J’s conclusion that if the evidence provided by the school had been given proper weight at the time ‘it is difficult to resist the conclusion that J could have been spared a great deal of emotional harm’ (para 12). Despite such widespread unease from a variety of agencies, the local authority (children’s services) assessment completed in January 2015 recommended no further action, concluding that the mother was ‘supporting J with whatever choices J makes.’
Hayden J concluded that the local authority failed to properly evaluate the referrals from a whole raft of agencies. It had ‘consistently failed to take appropriate intervention when there was strong grounds for believing that a child was at risk of serious emotional harm’ (para 20) and Hayden J thus invited the Director of Children’s Services to undertake a thorough review of the social work response to this case.
What was striking was not merely a failure to evaluate properly – or at all – the many concerns raised about J. The local authority had gone further, into ‘wholesale acceptance that J should be regarded as a girl’ (para 22). This was despite the lack of any ‘independent or supportive evidence that J identified as a girl at all, indeed there was a body of material that suggested the contrary. The cry for investigation went unheeded’ (para 22) Concerns about J were dismissed on the basis that such concerns revealed a lack of understanding of ‘gender non-conforming children’. This combined, in the view of Hayden J, ‘both naivety and professional arrogance’.
A consultant clinical psychologist, Ms Jean Sambrooks, had been appointed, but she was instructed to undertake a discrete piece of work and was not given the opportunity to survey the ‘wider canvas of concern’. Ms Sambrooks did not therefore challenge the orthodox view that J wished to be considered as a girl. However, she did note concerns about the mother; her ‘odd’ presentation and her illogical narratives. Hayden J took the view that the mother chose to generate a situation ‘in which her own distorted beliefs gain greater traction and are able to prevail with less effective challenge’ (para 27).
Case transferred to the High Court.
On 28 October 2015, HHJ Penna decided to transfer the case to the High Court, considering that the time may have come for the inherent jurisdiction to be invoked to protect J. Private law proceedings had been ongoing for nearly 18 months, nothing had been achieved and – most alarming of all – ‘J himself had entirely disappeared from view’ (para 32). He was not attending school and his home address and living arrangements were unknown.
The case first came before Hayden J on 25 November, He made it very clear that his objective was to place J at the centre of the litigation. The mother told him J was ‘living in stealth’ by which she meant he was living life entirely as a girl (para 39). She claimed she had been advised to dress J as a girl and register him with a GP as a girl on the advice of the Tavistock Centre, recognised as a specialist service for advice in respect of gender dysphoria. Hayden J expressed his doubts that any such advice would have been given with regard to such a young child and he ordered that the court get copies of the Tavistock records. The mother refused to cooperate and the records were not available until February 2016. They did not support the mother’s contentions. Following a contested hearing, both J’s Cafcass guardian and the court agreed that J could not safely remain in his mother’s care. J had not seen his father for two years by this time, Hayden J was confident on his own and other professional assessment that the father could offer J a ‘safe haven’ where he would be loved and cared for and his choices respected. (para 41)
Hayden J says that J was initially and unsurprisingly ‘distressed and frightened’ to be removed from his mother. However, it was striking how well and how quickly he settled in his father’s care. When J was mistaken for a girl by a visiting teacher at school he asserted in front of everyone ‘no, I am a boy’ . His interests were described by Hayden J as ‘male oriented’ such as ‘Power Rangers, SpongeBob, Superheros’.
It is not part of this discussion to comment on the dismaying limitations of reducing gender identification to such unsubtle binaries, but it is of note that there appeared to be no evidence from any source that J in fact ‘disdained his penis’ as his mother had claimed. When given space and choice, J ‘very clearly identifies himself as a boy’ (para 52).
Dr Kate Hellin, a second consultant clinical psychologist, then undertook an assessment of both parents and found that although the mother did not suffer from any personality disorder or psychiatric condition, she was locked into a rigid and unshakeable belief structure. It was not likely to change or be receptive to therapy. Hayden J made it clear he was aware of issues around gender dysphoria – he had read the House of Commons Select Committee Report ‘Transgender Equality’ (14 January 2016) and recognised that it was possible for children even as young as J to identify strongly with their ‘opposite’ gender. However, J had not been given any space or opportunity to develop his own views: ‘he was pressed into a gender identification that had far more to do with his mother’s needs and little, if anything to do with his own’ (para 74).
Hayden J concluded that the threshold criteria under section 31(2) of the Children Act 1989 were met and thus it was lawful for the local authority to be involved and to share parental responsibility for J. The local authority argued that it would be sufficient to have a child arrangements order for J and a 12 month supervision order to the local authority. This was rejected, Hayden J concluding at para 80:
…. it is self evident that the challenges that lie ahead for J are significant. It seems to me that the faces two serious risks. Firstly he may lose direct contact with his mother altogether…. secondly if contact is not monitored very carefully,… it has the potential to corrode J’s core identity’
Thus the order which would best protect J was a care order, imposing statutory duties on the local authority and allowing the father the maximum support available. An order was also made under section 34(4) Children Act 1989 which allowed the local authority to suspend contact between J and his mother if it felt that this was necessary to promote J’s welfare.
Second Judgment: How and why did the court decide to let this information into the public domain?
A further judgement was delivered by Hayden J in October 2016 Re J (a minor)  EWHC 2595. This was about how much of the detail should be allowed into the public domain.
He set out the local authority’s argument at para 3 of his judgment:
The issues in the case are extremely unusual, and it will be submitted that the Court should ensure anonymity for the child concerned to the fullest sense possible bearing in mind his young age and the detrimental effects upon him and his family should he be identified as the subject of this judgment, the potential for media interest in the issues arising in the case even from a fully anonymised judgment, and the potential impact and stress on the placement with his father in the wake of such media interest. It will be submitted on behalf of the Local Authority that there are “compelling reasons” to do so in this case.”
The local authority supported the father, who sought even tighter restrictions on what could be published. He relied upon the research of Dr. Julia Brophy (which is discussed below) and requested that only a short summary of the first judgment should be published. However, when Hayden J tried to explore with the barristers how this could translate into practical terms, it proved ‘impossible to undertake the exercise in a way which achieved any kind of satisfactory resolution’ (para 5).
Core risk – that of identifying the child.
There was no doubt that this case raised matters of public interest and thus fell within the ambit of the Practice Guidance issued by Sir James Munby (P) on the 16th January 2014: ‘Transparency in the Family Courts; Publication of Judgments’. The starting point is that permission should be given for the judgment to be published unless there are compelling reasons why not.
The ‘compelling reason why not’ in this case was clearly the risk of identifying J. How should the court try to reconcile the tension between publication in the public interest and yet protect J from having his identity becoming widely known?
There are ‘automatic’ statutory restrictions on publishing information about children, which can be found at section 97 of the Children Act 1989 and section 12 of the Administration of Justice Act 1960. If the court is being asked to relax any of these statutory restrictions – which the High Court has the power to do by exercising its ‘inherent jurisdiction’ – it has to undertake a ‘balancing act’ between the rights of privacy protected by Article 8 ECHR and the rights to freedom of expression protected by Article 10 ECHR.
Hayden J dealt economically with the existing legal framework (para 9) agreeing with Lady Hale that it can be described as ‘trite’ (see R (C) v The Secretary State for Justice  UKSC 2; (citing Re S (a child) (identification: restrictions on publication  1 AC 593).
However, whilst the framework of the law is easy to identify, its application is far from simple, in what is always a highly fact sensitive arena. The analysis is not confined to the ‘polar alternatives’ of openness and privacy, but must also consider the proportionality of each request for restricted publication.
Hayden J cited with approval (para 10) the analysis of the President of the Family Division in the case of Re: J (Reporting Restriction: Internet: Video)  EWHC 2694 (Fam);  1 FLR 523:
…. it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 WLR 148,  1 FLR 2170, para .
This present case was unusual in that no speculation was needed about the likely degree of media interest in publishing details – that interest was already plain and significant, involving a freelance journalist approaching the father on behalf of a national newspaper and offering him money to speak to the Press (a breach of section 6 of the Editor’s Code of Practice) and a planned interview of the mother by the BBC, albeit ‘silhouetted and anonymised.’
Hayden J identified the following issues arising in this case which were of genuine public interest (paras 16 – 19):
- How agencies such as schools, anonymous referrers, health professionals and the police raised entirely appropriate concerns with the local authority, which were inadequately considered.
- How earlier professionals have however unwittingly colluded with or compounded the harm experienced by J through inept investigation and inadequate survey of the wide canvas of concerns.
- That whilst such professional ineptitude might be explained by the mother having provided a powerful narrative in an assertive fashion; this simply highlights the imperative on the part of professionals involved in this work to conduct an independent thorough investigation even in cases where at face value one parent’s account might appear well-reasoned and articulate.
- How inadequate professional analysis has compounded the harm through engendering delay in the court investigative process.
- the alienation of a loving father which caused emotional harm to a child
Having established ‘public interest’ how best to protect J’s anonymity?
How then to proceed? There were clear grounds of ‘public interest’ rather than issues ‘the public are interested in’, such as salacious details about gender identity and J ‘disdaining his penis’ (which sadly one suspects may be how much of the media identifies the public interest). However, J must remain anonymous and that required careful consideration of what detail might lead to ‘jigsaw identification’. This tension crystallised into four areas (para 20):
- Should the experts instructed in the case be named in the judgment?
- Should the Local Authority’s social workers and various CAFCASS officers be named?
- Should the Local Authority be specifically identified?
- Should the mother be permitted to talk to the press about this case? Such suggestion being predicated on the preservation of the anonymity of mother and child.
“Open Justice. The words express a principle at the heart of our system of justice and vital to the rule of law”
Hayden J considered this a ‘succinct and powerful assertion’ by Toulson LJ in R (on the application of Guardian News and Media Ltd v City of Westminster Magistrates’ Court ( 3 WLR 1343;  3 All ER 551;  EMLR 22). This was also articulated by Lady Hale in R (C) v the Secretary of State for Justice (supra): ‘the principle of open justice is one of the most precious in our law … The court should not hear and take into account evidence and arguments that they have not heard or seen.”
Hayden J repeated the key principles he applied In M v The Press Association (supra):
- Orders restricting reporting should be made only when they are necessary in the interests of the administration of justice – see Scott v Scott ( AC 417);
- The person or body applying for the reporting restriction bears the burden of justifying it – it is not for the media to justify its wish to report on a case;
- Such an application must be supported by cogent and compelling evidence – see R v Jolleys, Ex Parte Press Association,  EWCA Crim 1135;  1 Cr App R 15;  EMLR 16), R v Central Criminal Court ex parte W, B and C ( 1 Cr App R 2) and, in civil cases, the Practice Guidance (Interim Non-disclosure Orders)  1 WLR 1033 and Derispaska v Cherney ( EWCA Civ 1235, per Lewison LJ (at paragraph 14)).”
Applying these principles along with the President’s Guidance, Hayden J found it ‘beyond argument’ that those offering expert evidence to any court, should do so realising their conclusions and analysis are likely to be held to public scrutiny. He said at para 24:
Not only is the probity of the process enhanced by scrutiny, so too is its efficacy. Transparency stimulates debate and in so doing provides fertile ground for the growth of knowledge and understanding.
However, identifying the social workers and the local authority was another matter. Hayden J accepted the dangers of ‘jigsaw identification’ and said at para 31:
Ms Kilvington submitted that though the balance is a delicate one, the facts of the case are indeed so striking that the identification of the geographical area in which the child lived would, far more readily in this case than in others, risk his identification becoming known. I agree both with Ms Kilvington’s ultimate conclusion and with her identification of the delicacy of the balancing exercise. I would add that an important factor in coming to this conclusion is my earlier decision to require a thorough investigation of this case at the most senior level in the Authority. This I believe addresses, to an important degree, the public interest in the professionalism of child protection within this Authority’s department. I should also say that whilst I am satisfied that the balance here falls in favour of J’s Article 8 rights, that balance may potentially shift at some point in the future.
With regard to the mother’s right to give interviews, Hayden J said this at para 34:
Mr Baker tells me that M is also interested in speaking publicly about the issues presented by those experiencing gender dysphoria. She has the inviolable right to do so. Her right to speak about her son however, has to be balanced against J’s own rights. This for me is not a delicate balance, the predominance of J’s right is both pressing and clear. I am accordingly prepared to grant the restrictive order sought by the parties, save the mother and Associated Newspapers Limited, preventing her from speaking about any aspect of ‘gender dysphoria or gender identification’ in so far as these relate to J. For the avoidance of doubt the restriction extends, as seen from the wider terms of the order, to prohibiting the mother from broadcasting or publishing any detail of J’s life which might identify him as the child subject to these proceedings.
The status of research published by Dr Brophy and the Association of Lawyers for Children in August 2016
This research was relied upon to support significant restrictions in the amount and type of information published about this case, (‘Anonymisation and avoidance of the identification of children and the treatment of explicit descriptions of the sexual abuse of children in judgements intended for the public arena’ ) Hayden J recognised, as stated by the President on 18th October 2016, that this is a valuable piece of academic research and analysis, funded by the Nuffield Foundation, whose publication and wide dissemination the President fully supports. However, it has no official status and was not issued as Guidance.
Hayden J commented at para 37:
There is no doubt that Dr Brophy’s research is, as one would expect, very child focused. I am concerned however that in expressing her aim to be striking ‘a better balance between the policy that more judgments should be published’ and the concerns of ‘young people’ about ‘deeply distressing’ information ‘in the public arena’, Dr Brophy has lost sight of the legal framework that requires to be applied in any decision concerning publication. We are not concerned merely with a ‘policy’, to publish more judgments, rather we are applying the obligations imposed by Article 10 and Article 8 ECHR.
There should not be a ‘paternalistic presumption’ in favour of privacy in every case – and he was sure Dr Brophy would not wish her work to be interpreted in this way. The clearest analysis of the necessary balancing exercise could be found in the judgment of Clayton v Clayton  EWCA Civ 878;  1 FLR where Sir Mark Potter (P) observed:
Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out.
A useful postscript ends the judgment which highlights how sensitivity to some practical issues can hopefully be used to diminish any negative impact of publication upon a child.
During the course of submissions Mr Brian Farmer (Press Association) informed me of a recent case in which Keehan J had deferred the handing down of a judgment until a child’s half term holiday, in order that any distress to the child consequent upon publication could be managed most effectively. That seems to me to be a very sensible course and when F was approached with the idea he was very enthusiastic about it. Accordingly I intend to hand down the judgment in the Care Proceedings at 10.30am on 21st October 2016. In the light of the content of this judgment I do not propose to publish it until 21st October 2016, following handing down of the substantive judgment.