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#RROAppeal What price scrutiny and transparency in the Family Court?

22 Feb 2019 - 1 Comment

This time last week I was sat in *the* grandest room I’ve ever tweeted from. Court 33 at the Royal Courts of Justice, on the couple of occasions when I looked up to the high ceiling I couldn’t help think you could fit at least another floor, maybe two in if space were tight.

I was there because Louise Tickle had successfully applied to the Court of Appeal about a reporting restriction order (RRO) placed at the end of a family court hearing in October 2018. The hearing was held in front of the President of the Family Division, Sir Andrew McFarlane (the most senior family judge in the land) and Lady Justice King, you can read more about them here.

Louise has written a piece for the Guardian that explains the background and why it was important to her, and to many of us, and if you’re reading I suspect to you. The RRO prevented journalists from reporting on Southampton City Council’s attempt to remove a child from her mother, on a permanent basis.

Why would a council need to be protected in this way? From scrutiny?

A council who has a track record of suspiciously high numbers of children being adopted, in fact almost 1 in 50 children in Southampton were put up for adoption by their 5th birthday. 1 in 50. Andy Bilson has done great work on this, you can see the analysis and data here, an academic paper here, or a BBC write up here if that’s your thing. Alternatively you can find him on twitter:

So the wider context is a council with eye wateringly high rates of adoptions, deciding that a child must be adopted.

What about this particular family though? Emily Boardman represented the child’s mother pro bono for this appeal hearing, with Lawrence Messling. Emily has written a blog post about last week that includes a recap of the background context. You can read it here. To answer my initial question of what price scrutiny, for this child’s family they’re looking at about £60k.

As Emily explains:

As I did not represent the mother in any of first four sets of proceedings, and there is no Judgment setting out why the child could return home, it is hard to know what had changed. However, the proceedings concluded with the local authority withdrawing their application to place the child for adoption and with the Care Order being discharged.

The child ended up spending more than three years in foster care and the mother spent more than £60k on legal fees and it is frustrating not to know what very significant changes the local authority and the Guardian must have felt had been made in the year between the making of the Placement Order, their defence of the appeal and the return of the child home.

What we do know is that the mother had to fund her own legal representation for three sets of proceedings; while legal aid is automatically available when a local authority applies for a care order, if you wish to appeal that decision, or apply for your child to return to your care then you have to foot the bill and we’re then into means tested legal aid.

What price scrutiny eh?

This is all very familiar to anyone who has read my blog in recent years (I like to kid myself that someone reads regularly, even if that’s only my mum). Legal aid is means tested for coronial inquests too, even if every other agent of the State can spend our taxes representing themselves, local authorities, NHS trusts, prison services. Keep an eye on #LegalAidForInquests and there will be more from Inquest on this next week.

I digress.

First this child’s mother had her child removed from her, then the council applied to have her child adopted. A family law judge, HJ Hess agreed with the council [judgement to be published]. Somehow, I honestly don’t know how, this mother managed to collect herself emotionally and financially to a position where she could challenge those with all the power (and legal teams paid for by our taxes).

Three judges heard her appeal, Lord Justice McCombe, Lady Justice King and Lord Justice Peter Jackson. You can read their judgement in full here. They found that Southampton’s decision has been ‘based on the slimmest of evidence‘ and that ‘the judge fell into error in that he failed to highlight and sufficiently to analyse these two key aspects‘.

They also stated that the judge was not helped, or perhaps even hindered, by the council failing to provide good evidence and information:

‘In my view the judge’s ability to carry out such a task was compromised, not only (as I find) by the problems that I have identified in respect of the analysis of risk referred to above, but also by the limited information about E herself, which in turn feeds into the sparse evidence in respect of the prospects of placing this child with an adoptive family within her timescales’.

Southampton were told they’d have to make their case again, in order to proceed with the child’s adoption. That hearing was set for October last year. At that hearing Melanie Newman, Louise Tickle and Sanchia Berg, two freelance and one BBC journalist, were present.

At that hearing it became clear that the council were not proceeding with pushing for adoption, and in fact had reunited the child and mother. In the space of a year Southampton City Council had gone from claiming this child needed removing from their mother forever, to reuniting them. I just can not understand how that is possible. The thought of what would have happened if the child’s mother had not managed to raise £60k is unthinkable.

We heard in court last week that Melanie Newman had written to the October judge and warned them of her intention to report the case, a courtesy but by no means requirement for journalists (as I understand it, but my understanding is very limited of all of this). Southampton CC applied for a reporting restrictions order and the judge granted it. Back to Louise:

I emerged from court on that day feeling furious – and frightened. It is shocking enough that family courts are not subject to anything approaching the level of openness in the rest of our justice system. But when one family judge acts, in secret, to remove a child from her mother, and a more senior family judge then says that the media may not report how weak local authority evidence, compounded by questionable judicial decision-making, has almost destroyed a family, then it’s dangerous territory.

Since then, I’ve discovered that fighting for the right to freedom of speech is scary, time-consuming and far too expensive for most people to contemplate.

I don’t intend to just repeat what Louise has written elsewhere, far better you read her stuff.

I will say I remember seeing Louise’s crowdfunder and knowing it was a pot I had to chuck a couple quid into. I couldn’t spare more but it was a matter of principle. I think the average citizen has immense trust in our judicial system, which isn’t always well placed. I offered to live tweet for Louise if she were successful in securing a hearing. Tweeting is a tiny piece of a much larger jigsaw, but I do it an attempt to help keep people informed who can’t make it to court, to try to stimulate real time debate, and as with the inquests I tweet, in part to bear witness.

I was surprised at how nervous I was about tweeting last week. I think the pressure was up a little because despite being granted permission to tweet in advance of the hearing, the risk of sharing something that should not be reported was quite real. The setting was a little imposing too, although I was pleasantly surprised as the warmth and interest of the judges. Their commitment to open justice was reassuring before they even reached their judgement.

Speaking of risk though, the considerable risk in this RRO Appeal case lay with Louise Tickle. She had to somehow tell a story, to engage a group of crowdfunders while risking being in contempt of court if she got it wrong and broke the reporting restriction order. The costs of the appeal are in the thousands:

Thousands, even with pro bono support. Louise was brilliantly and ably supported pro bono by Sarah Phillimore, Paul Bowen and her solicitors Simons, Muirhead and Burton. There is something wrong with our justice system when something as important as this has to rely on people gifting their time for free.

It’s also completely illogical to me that part of the suggestion a restriction order was required in the first place was to protect the child. At last week’s hearing the only totally unrepresented party was the child, apparently because CAFCASS did not have funding to attend. What price the interests of the child eh.

As well as the legal brilliance and Crunchie promotion that Sarah offered, she also added to the tweet fest and wrote up a blog post in lightening speed, that’s here for your pleasure.

It’s also worth reading the analysis from the Transparency Project too, which also has a cracking headline: Tickle’s Triumph – an independent journalist succeeds in her appeal to secure the right to report on a family case – and prompts new guidance. The TP post also gives good coverage of the promises for guidance and the wider issues discussed about journalist and legal bloggers access to the court.

Back to costs. The thousands figure doesn’t come close to the true costs.

It doesn’t account for the hours of Louise’s time. It doesn’t account for what I imagine is the intense worry and stress and very real risk of having a costs order made against you if your appeal is not successful. Hindsight is a powerful comfort, but at the point that Louise launched this action she had no real reason to assume she would win.

It’s worth noting that the BBC only applied to join the action at last week’s hearing, the risk had already been born by Louise at that stage. I can’t help wondering why whoever makes legal decisions at the BBC weren’t prepared to spend their resources earlier. This issue seems important enough that it should not have fallen to two freelance journalists to carry the risk. The BBC coverage on the family court case is here: The mother who lost her daughter over an EpiPen.

I take my hat off to Louise and the child’s mother in this case. Their bravery, determination and pursuit of what they know is right is inspiring. To go full circle to the question of what price scrutiny and transparency. I think it’s priceless.

1 Comment

  • A big day in court | The open family court / March 4th, 2019

    […] case was posted by Emily Boardman a couple of days after the hearing, and George Julian also wrote a post with her reflections. Finally – I think! – the Family Law Bar Association is going to publish a […]

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