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Protecting children’s privacy

As Resolution lawyers and responsible human beings, our focus at CFLP is to encourage the parents who come to see us to protect their children during separation and divorce. We believe in putting children’s interests first throughout the process. We aren’t big fans of litigating over children and do what we can to encourage our clients to avoid it wherever possible; sadly, it isn’t always possible to do so, and if it isn’t, we do our best to lessen the impact.

As the family courts open up to scrutiny in more ways, the dangers of court proceedings for children become more complex. It’s not just the stress on the adults, the damage to the possibility of future friendship and the outcome of an imposed solution that may be difficult in practical terms, it’s also the possibility – even likelihood in some cases – of the court case being reported, put on the internet, and the details of one’s difficulties being available for all to see, albeit usually on an anonymised basis.

We were interested to read that Dr Julia Brophy, a respected academic, is currently conducting research on children involved in the family courts, and their confidentiality. She has just published another stage of her research, in conjunction with the Association of Lawyers for Children and the National Youth Advocacy Service, which examines how successfully reported legal cases relating to children are anonymised.

The aim of the process of making the judgments anonymous is to show how the family courts reach their decisions while protecting the individual children who are involved. This is why family court judgments often use letters in their titles, eg “X v Y County Council and Z”, rather than the names of the people and organisations involved. It’s fair to say that although this research focused on public law proceedings and judgments – i.e. those where a local authority is applying to take children into care – it has implications throughout family law, as judgments may be published in financial or private children cases too.

The researcher asked a group of young people aged between 17 and 25, many of whom had themselves been involved in family court proceedings and all of whom have excellent internet skills, to analyse randomly selected court judgments that are on Bailii, a free internet case law resource. They were asked to see if they were able to identify children involved from the details revealed in the apparently anonymised judgments.

In many cases they could. The results indicate that there are serious difficulties in effectively anonymising judgments. The internet has made it easier to piece together different bits of information and work out which family, and which child, the judgment relates to. The young people identified certain types of information, for example, the geographical location of families, children’s ages and dates of birth, details of instances of abuse, or parents’ health problems which, when pieced together, make children vulnerable to identification. In addition, they found newspaper reports of incidents referred to in judgments, and parents and other family or friends posting information about children and court cases on social networking sites, that helped them to identify the children involved.

The research is very worrying. It suggests that in many cases there is a real risk of ‘jigsaw identification’, which means the process of anonymisation is not sufficiently protecting children’s privacy and requires an urgent review. In particular, those with some local geographical knowledge can be alerted to a family’s difficulty even by the name of the local authority or court, and tracing back to a particular child from there gets easier the more details revealed in the judgment.

The young people analysing the judgments were shocked by their detailed contents, finding that ‘judgments contained difficult, deeply embarrassing, shaming and damaging information about children’s lives; that such information was effectively already in the public arena was distressing – many felt let down.’ Indeed, they made the point that it felt like judges were unaware that sensitive details, for example of abuse or parental neglect, can “go viral at the click of a button”, and be used in ways not intended or perhaps understood by the judge.

The report’s author makes the two fundamental points that

  • “It is fair to say that in endeavours to protect the reputation of family courts by encouraging judges to place judgments on Bailii, the views of young people and others about the content of judgments was not sought.
  • Ministers supporting changes in this field in general declared it was not the intimate content of cases that would be reported by the press, rather the process and issues of fairness and justice. That has yet to be demonstrated.”

The author presents recommendations for further research, consideration and guidance. She observed that the level of detail included in some family court reports is necessary to show that the judge has fully considered all of the evidence and to protect from a later appeal; but there is a tension here with protecting the child’s privacy and securing their future that urgently needs to be addressed.

Where it is difficult to agree children’s arrangements on divorce or separation, we recommend mediation or collaborative practice wherever possible. As we’ve previously discussed, keeping children’s issues away from court has so many advantages. One of the advantages is that your, and your children’s, privacy is protected. If you’ve got any queries about a children matter or any other aspect of family law and would like to speak to someone, give us a call on 01223 443334 and make an appointment with Adam, Tricia, Simon, Sue or Gail.