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Voice of the child not heard in transparency debate, claims Resolution

Date:27 OCT 2014
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Family Law

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Resolution have published their response to Transparency - the next steps, claiming that the view of the individual child who is the subject of family proceedings is becoming lost in the debate.

In their response to the  consultation issued by the President of the Family Division on 15 August 2014, Resolution endorse the recommendation in Safeguarding, Privacy and Respect for Children and Young People & the Next Steps in Media Access to Family Courts (Safeguarding, Privacy and Respect)first published by Family Law, that Parliament should be given the opportunity to scrutinise proposals to increase media access and reporting of family cases. Resolution also supports the report's findings that the the proposals should be subject to a proper public consultation exercise.

The response continues:

 'Many of our members consider that the media is not an appropriate watchdog of the family court and that increased media access is not the way to maintain public confidence and give a balanced insight into family court decision-making. There is currently little confidence that the media can be relied upon to report what is of genuine legitimate interest and importance, rather than reporting what they consider to be of interest ...

Solicitors acting for children are particularly concerned by these proposals; they fear that the necessity to inform children at the outset of proceedings that court documents and expert reports will or may be sent to the media, albeit anonymised, will affect their ability to act in the children’s best interests. It is likely a child would withhold important information from their representative or the professionals in the case for fear of it becoming public knowledge. This could also impact on a child or adult party’s willingness to engage in essential expert assessments.'
Further key points from the response include:
  • The more judgments are published, the more the margin for error and risk of identification of individuals or a family and breach of their privacy. 
  • The potential impact on a child of any age (or an adult child) without access to all the background information later identifying him/herself and their family, must also be significant depending on the circumstances and the individual concerned.
  • The publication of judgments relating to teenagers in secure accommodation who are the victims of sexual abuse and exploitation requires particular reconsideration in light of the extremely high risk of jigsaw identification and the likelihood of linked criminal proceedings.
  • Consideration should be given to the provision by the court of a standard
    information sheet for parties.
  • Careful and thorough anonymising of judgments is clearly vital to avoid jigsaw identification.
    There should be core standards and clear guidelines on how to correctly and uniformly anonymise judgments covering what should be edited in addition to names, including all geographical references.
  • There should be a formal evaluation of the impact to date of the increase in the number of judgments being published on BAILII to inform whether there is any need for further guidance and what that might achieve. 
  • Resolution is not persuaded at all that all the documents envisaged would serve the stated purpose of facilitating the accredited media’s understanding of the case or assist them in performing a watchdog role. 
  • The proposals place a burden on the practitioner to draft documents suitable for the media that should be approved by the client.
  • Whatever further guidance is piloted, if at all, the project would require a clear purpose and evaluation of whether it is fit for purpose with no detrimental impact on the children and adults involved. 
  • Access to documents should be confined to those members of the accredited media who actually attend hearings and they should apply for documents in the normal way.
  • We have found it impossible to identify or cherry pick any types of family case which might initially be appropriate for hearing in public. 
In an exclusive article published by Family Law,  Safeguarding, privacy and respect for children and young people and the ‘next steps’ in media access to family courts, Dr Brophy says:

'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.'
An in-depth version of Dr Brophy's article will be published in December Family Law. Resolution's response is available to download here. To read, Safeguarding, Privacy and Respect click here.

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