10 OCT 2014

Safeguarding, privacy and respect for children and young people and the ‘next steps’ in media access to family courts

Dr Julia Brophy, Principal Researcher – Family Justice

Proposals to extend further the rights of media access in children and family cases remain problematic. Further evidence from young people (2014) arrived on the agenda at the same time as Trinity Mirror has paid damages averaging just under £21,000 each to settle six phone-hacking claims from well-known individuals. Nearly 50 more compensation cases are outstanding, and Trinity Mirror is understood to have set aside just under £10m to cover the costs of these claims. It is the first significant admission of phone hacking by a newspaper group outside the Murdoch group; and it is described as significant because it is said to confirm that the practice of phone hacking was widespread in parts of the British newspaper industry. The lawyer representing the successful claimants is quoted as saying: 'There are many more people who will now be able to make claims against the Mirror Group titles in respect of their unlawful activities'.

That news will not be lost on young people who engaged in the NYAS ALC consultation (J Brophy, forthcoming in December [2014] Family Law): they referred directly to the Leveson Inquiry and to personal experiences of press behaviour during discussions about the media and the ‘Next Steps’ proposals. But their views about media access to family courts are not simply predicated on a lack of trust in the media - important though that was. They have fundamental concerns about children’s privacy and long term health and well-being.

Young people are not naive about this area: they understand the complexities and the political dilemmas to be addressed; they also know judges and other professionals are not beyond making mistakes, but they do not agree that the press could or should be arbiters of justice, fair play or children’s best interests. They understand the issues for some parents who may feel aggrieved by judges’ decisions; but they argue that children’s need for protection of their privacy and long term welfare must come first. Like other research findings they say that parents in proceedings are not necessarily best placed to represent children’s views and interests on media coverage of cases: they give examples of poor judgment by parents and lasting problems for children. They look to family judges to protect them and consider how this can be better achieved.

Despite this, the Government failed to honour a commitment it gave to ascertaining the views of young people when announcing it would not implement Part 2 of the Children Schools and Families Act 2010 (Government Response to the Justice Committee sixth Report of Session 2010-12; Operation of the Family Court, (Cm 8189, 2011), paras 73 – 75). The ‘Next Steps’ proposals thus sit uncomfortably against Ministerial statements that children are at the heart of the new family justice system, that they are the experts, that their views matter and they are taken seriously (eg S Hughes, Family Justice Board Young People’s Conference, July 2014).

It is however not simply that trust in the British press is at an all time low: the proposals are likely to be unworkable – if young people are told the truth about media access during their ‘journey’ through state intervention and legal proceedings, there is a real risk that they will decide not to engage in that process. As young people point out, that is an indefensible position for family and child friendly justice in the twenty-first century: it is unethical, it breaches their Art 12 Rights under the UNCRC and it is potentially dangerous. They also say the media is unlikely to meet the objectives of public education or become an informed reliable ‘watchdog’ over the work of courts.

Those in favour of, or at least hopeful that the proposals in the President’s ‘Next Steps ’ will resolve the issues, might be assisted by the views and proposals of children and young people – they are also part of ‘the public’. Young people argue that it is naïve to think that democracy ‘as we know it’ is dependent on media access to family courts: they say there are other ways to inform the public about family courts and where necessary improve accountability and transparency of decisions. They argue that it is necessary to scrutinise this issue in more detail. Parliamentary scrutiny is required, with time for the issues to be explained, and to enable young people to contribute on the basis of their knowledge and experience – as Government promised on repeal of Part 2 of the CSF Act 2010. Young people are caught between paternalistic and condescending attitudes regarding the information they should or should not have, and a policy agenda where they have no effective voice or means of discussing the issues with other young people who would be affected by the ‘Next Steps’ proposals.

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Some may find their views challenging – given the direction of travel and the powerful groups involved in this field. Young people nevertheless are prepared to ‘stand up and be counted’ on this issue; they argue that family judges and other professionals – and Government and the President – must listen. Along with others, they argue that there is a ‘third way’ to address public information and confidence in family courts.

Young people regard as short sighted, at best, any denial of the ethical problems associated with large sections of the twenty-first century British press. Moreover, they do not think wider media access will end criticisms of courts as ‘secret’. Research evidence in other jurisdictions tends to support that view: for example, the Federal Family Court of Australia has been open to the press and public since 1975 but accusations of ‘secrecy’ and judicial incompetence continue.

With regard to media access to certain court records, it is naive to think that the press will be content with limited access to documents, or that it will accept any continued reporting restrictions. Journalists in England and Australia argue that unnamed parties do not sell newspapers. At the very least, they want ‘human interest’ and details of cases, even if names have to be left out. However, young people argue leaving out names does not guarantee anonymity. ‘Jigsaw’ identification - putting together the details in a story to work out the identity of those involved – is a real danger. Young people set out possible consequences for the emotional health, wellbeing and development of the children where loss of privacy and public exposure of highly painful, personal details of family life can have long term consequences. They argue this issue needs to be placed within a long term safeguarding framework - which takes into account social media. Creating and guaranteeing that framework for vulnerable children is the job of Parliament, and applying it is the responsibility of the family courts, if adults do not or cannot treat children’s interests as paramount. Young people want judges routinely to address children’s long term (post proceedings) needs: privacy, and an opportunity for private pain to remain private, is seen as an important part safeguarding by the State.

These young people have provided further evidence in the absence of a Government commitment to do so. Perhaps it is also time to also examine the underscoring jurisprudence for this field and to explore whether more contemporary philosophies of law and critical legal theory have more helpful things to say about law, democracy, and children’s welfare and therapeutic needs.

Equally, it is important for the consultation to be effective with special reference to young people as a constituent group and to the issue of timescale. It must not be the harbinger of difficulties later on; and thus, before the consultation closes, it would be helpful to have confirmation of how the consultation is constituted and run, within the standards for public consultations, so that the parameters are properly understood, and the evidence gathered is relevant. As David Hume argued, from a position of philosophical empiricism, 'A wise man proportions his belief to the evidence' … and should 'always reject the greater miracle' – helpful advice for all those concerned with understanding safeguarding, privacy and respect for children and young people, and the ‘next steps’ in media access to family courts.

A detailed discussion of the issues and views, experiences and solutions posed by young people along with recommendations will follow in December Family Law.

The full report can be downloaded here.

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