The proposal issued in July by the President of the Family Division to publish more family court decisions was eagerly seized on by some newpapers as a victory in their campaign for ‘transparency’ and ‘open justice’. The President, Sir James Munby, has long advocated more openness in family court decision making. His draft guidance, on which he is consulting, proposes that (amongst some other types of decisions) all judgments relating to an emergency protection order or care order made under the Children Act 1989 should be published. These types of order give a local authority power to remove a child from their parents. The cases are to be published on the freely available website, bailii. At present, only judgments in the upper courts, namely the Supreme Court, Court of Appeal and some High Court cases, are routinely published. Only judgements at that level are capable of forming precedent, and being binding on other courts. That is why they are reported – so that lawyers know about them. The President believes that there is a public interest in making many more cases available to be read.
One example of a published High Court judgment is a case reported as Re J  EWHC 2694 (Fam) which was decided by the President in June 2013 and published on 5 September. In this particular judgment, the only people or agencies that are identified are the judge, the barristers involved, and the local authority, Staffordshire County Council. The law regulating publicity of cases about children is very complex but this judgment contains a succinct explanation in paragraphs 20-24.
Re J is a very disturbing case. The parents have four children, all of whom have been taken into care and are adopted or to be adopted. J was born on 4 April 2013 and an emergency protection order was granted by a court that day. The father had posted some information about his children on the internet and also posted insults and threats about named social workers. In May 2012 he named a social worker on Facebook, calling her ‘vampire-ish’, ‘wicked, predatory’, ‘about to steal a child from the loving parents’, ‘a ghoul’,’ ‘you must be very afraid now! You WILL suffer for this!’
Shortly after J was born (at home, against medical advice) and the local authority was granted the court order, social workers attended the home to take the baby to safe foster care. The father covertly filmed what happened and the film was uploaded on Facebook, Youtube and a website. The local authority applied for court orders restricting reporting in order to protect the child’s identity. (The father had already committed a criminal offence in publicising the child while subject to court proceedings).
There are several interesting features in this case, including the apparent futility of serving court papers on Facebook in California. The point that has raised most comment is that the President did not stop the parents from talking about their family or from naming social workers, saying: ‘anonymity should not be extended to experts, local authorities and social workers unless there are compelling reasons’. Only the child’s name is to be concealed and he suggests that public bodies will have to get used to the fact that parents might campaign against them. This has been helpfully boiled down by suesspiciousminds as follows:
‘…a parent involved in care proceedings can campaign in the press and the internet, naming social workers and using whatever language they like without the Family Court intervening, SO LONG AS they DON’T do anything which directly or indirectly causes the child to be identifiable.’
This outcome has led the social workers professional association to express concerns about ‘naming and shaming’ practitioners who are following court orders to protect children.
Another concern, surely, is the way the judgment accepts that images of J can be shown, provided he is not named. The President believes that that this will protect J’s privacy at only a day old, but when J is old enough to be aware of his history, how will he (and his future family) feel about that day becoming a public event?