Lucy Reed on Transparency in the Family Courts

Once again last month a local authority has made the cringey and rarely successful submission that it should not be named in a judgment that is stridently critical of it, because the ensuing adverse publicity might damage its reputation and hamper efforts to recruit.

I say ‘rarely successful’ because - whilst I can think of no case in which such a submission has actually worked - Mr Justice Keehan records in his judgment in Herefordshire Council v AB [2018] EWFC 10 that he thought long and hard before concluding that it was ‘necessary’ to publish the judgment without affording the local authority (Herefordshire) the cloak of anonymity that it sought.

The potential adverse impact on a local authority being able to perform its core function is clearly a relevant factor to be weighed in the balance. But ultimately, in this case, it was outweighed by the pressing need to let the public know about the egregious failures of the local authority. Mitigating the damage however, was the inclusion in the judgment of information about the extensive acknowledgement of failure, changes of personnel and practice that the local authority had made since the failures in question. Whether those changes have successfully embedded and will result in cultural change and better outcomes will not be clear for some years, but the judgment remains as a public reference point for residents of Herefordshire in the future.

It was only last October in Re ABC (A child) [2017] EWFC B75 that HHJ Wildblood QC dealt with a similar submission, also unsuccessful. There, Gloucestershire County Council argued that they should not be named in a judgment and that the grandmother should not be permitted to tell her story. The grandmother was critical of the SGO assessment process she had undergone and wanted to use her story to prompt an improvement in practice.

Way back in 2007 Munby J (as he then was) dealt with the very same issue in Re B (Children) [2008] 1 FLR 482, [2007] EWHC 1622 (Fam), saying: 

‘I can understand the local authority's concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings…’

It is undoubtedly the case that coverage of the failures of local authorities in the local and national media have potential to make things harder for a local authority trying to improve its performance – to achieve sustainable change a local authority needs to recruit and keep good staff.

But in seeking, in effect, to be allowed to get on with self-improvement in private (or to carry on doing the same old thing without being bothered), a whole other set of problems are created or exacerbated. Confidence, already low, will ebb away further if it appears that a failing service is trying to hide something. Far better for a local authority which genuinely recognises it has failed and that change is required to publicly say so and to publicly explain what it is doing to ensure things go better in future. And far better for a local authority that still doesn’t ‘get it’ to be challenged about that ‘lack of insight’ by the media and by the public who read about the problems. Where a local authority is prepared to make concessions to a very cross judge in private but does not want those to be identified as having made them in public, as Herefordshire did, there is a risk that this will, when it comes to light, be interpreted as insincerity.

What local authorities who instruct their lawyers to request anonymity forget is how critical public accountability really is.

What’s more, the very making of the submission exposes a local authority to a high risk that, when the submission is rejected, the local authority will look like it has been avoiding legitimate public scrutiny. Because, whatever the motivation, it has been doing just that.

Far better to honestly hold its hands up and to approach the publication of a judgment as an opportunity to engage with the criticism and media coverage that will follow, and to set out the positive case around how it is working to make things better.

It is impossible to know whether, in the cases like this that we see reported from time to time, the application for anonymity has been made on advice or against it. Similarly, it is impossible to know how many applications for anonymity posited on the basis that identification of the local authority will risk identifying the child, are cynical attempts to secure protection from criticism of the local authority itself – but certainly it is a rare case in which the mere identification of the local authority will give rise to any real or unmanageable risk of identification. But it does appear from the published judgments, both before and since the 2014 guidance on the publication of judgments, as if time and time again submissions are made that a local authority should be anonymised on the most slight of grounds. A proper consideration of the authorities (and indeed the 2014 Guidance itself) should lead in many cases to the conclusion that such submissions are unlikely in most cases to be successful, and if unsuccessful may be make public exposure that bit more stinging and may make the task of rebuilding trust in the local authority that bit more tough.

There is a sense of déjà vu whenever this point is reargued. The arguments for and against are not novel. The arguments about recruitment will by their nature almost always be offset by the countervailing and powerful argument that a public body must be publicly accountable and that serious failures ought to be publicly identified.

In Re ABC HHJ Wildblood QC took the local authority to task for the suggestion that preventing the grandmother from telling her story of assessment for an SGO by the local authority and its treatment of her would only be a ‘minor interference’ with her Article 10 rights, observing that:

‘It is utterly wrong in fact and principle to say that the non-disclosure order sought is only a minor interference with the grandmother's Article 10 rights. The Local Authority's approach seems to be based on its misunderstanding of the principles of law (i.e., in Re B language, on which foot the boot is) and also its failure to consider any of the relevant decisions of the President that I have set out above. To say to this grandmother that she was not allowed to name the Local Authority involved would be a very major interference with her right to expression under the Convention.’

And whilst it is often the press who are (rightly) criticised for the use of emotive language, here it was the local authority who had used the emotive term 'trial by media'’ which was ‘not apposite - the issue is whether a member of the public should be able to voice a complaint against a local and public institution’.

The truth is that this sort of argument is regularly and unthinkingly wheeled out because we are all used to working behind closed doors, and because we have normalised it and are unused to the uncomfortable experience of being challenged in public. From outside the bunker such arguments just look faintly ridiculous and desperate. The grandmother in ABC saw it and she spoke truth to power when she said:

‘It has seemed that the local authority is unused to being questioned or called to account for their conduct, decisions or even their misinformation.’

These arguments about Article 10 and legitimate public debate and public accountability are not niche stuff for specialist media lawyers – family lawyers and local authorities should be familiar with the law and authorities here. We need to ‘mainstream’ transparency. The issues have potential to arise in any case at any time and all professionals working in the field have a responsibility to have a grip on them. Because if we don’t get why this is important it speaks poorly of our connection with the public we serve.

 

Lucy Reed is a barrister practising from St John's Chambers, Bristol (Call 2002). She is the co-author of Transparency in the Family Courts: Publicity and Privacy in Practice, writes the award-winning 'Pink Tape' blog, and is the Chair of The Transparency Project.

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