Family

The Court of Protection and the new Family Court: can publishing judgments prevent moral panics? – Julie Doughty and Lucy Series

The President of the Family Division, Sir James Munby has made clear his determination that the new Family Court, to be established in April 2014, will not be saddled with the label of ‘secrecy’ that has been attached to family proceedings in recent years. He also wants to extend his plans for accessibility and transparency to the Court of Protection. As a first step, he is consulting on proposals to make publicly available all judgments in the types of case that involve the most serious decisions made by courts on private and family life. At present, only a proportion of judgments are reported in official law reports, and an even smaller proportion of those published in a freely accessible forum such as Bailii or the Judiciary website.

Arguments about the tension between protection of the privacy of those involved in proceedings and the public interest in scrutinising the decision-making process will no doubt continue. Another question is whether publication of more judgments might be a means of curbing ill-informed speculation in the media that can quickly lead to a moral panic before the facts are known.

On 30 November, Christopher Booker wrote an article for the Telegraph with the headline, ‘Operate on this mother so that we can take her baby’.  He stated that a pregnant Italian woman visiting the UK had been detained under the Mental Health Act and that the High Court ‘had given the social workers permission to arrange for the child to be delivered’.  After being sedated she discovered ‘that her baby had been removed by caesarean section while she was unconscious and taken into care by social workers’ without her knowledge.

Somehow, the completely separate Court of Protection, with its adult mental capacity jurisdiction, and family courts, which deal with the welfare of children, had been conflated into a baby-snatching conspiracy. Within hours, the portrayal of England and Wales as a jurisdiction where a pregnant visitor could find herself sedated so that her baby could be seized by social workers had become a global sensation. Those who found the Telegraph story implausible could do little more than hope the relevant court judgments would soon emerge so that sufficient full facts would be known. The relevant mental capacity law was explored by Lucy Series and the relevant child care law by family law barrister, Lucy Reed.

It was not until 2 December that Essex County Council, which had been granted the care order for the child, posted a list of facts on its website which clarified that the order relating to a clinical decision that a casearian should be carried out had been made pursuant to an application by the NHS Trust. The Court of Protection judgment (dated 23 August 2012) was published on the Judiciary website on 4 December, the separate county court judgment (dated 1 February 2013) on the care order and adoption plan having been published on Bailii on 3 December.  These demonstrated that the original claims were untrue, although Nell Munro and Elizabeth Prochaska have raised questions about the decisions made by the courts.

A comprehensive account of the way the Telegraph’s claims subsequently crumbled is set out by Carl Gardner. However, as he concludes, social workers and NHS doctors, mentally ill people, vulnerable children and indeed the general reading public have not been served by uncritical acceptance of the original implausible claims.

Could such a situation be avoided in the future if Sir James Munby’s plans for court decisions like these to be freely accessible at an earlier stage? Presumably a journalist would in future be able to check the facts as reported to him or her against the court version before rushing to print. However as the Family Court Information Pilot showed, a great deal of work needs to be done to make cases comprehensible and useful for journalists and the public. Now Mr Booker can read the judgments in this case, it will be interesting to see how far his corrections and apologies extend. The Telegraph’s response may be an indicator of how assiduously the media will scrutinise aggrieved parties’ version of events in the future.