A quick little post to ponder this: I’ve seen a number of recent posts from lawyers which give anonymised case studies of family court cases concerning children, which (on the face of it) seem to go further than is permitted under Family Court privacy laws (by which I really mean s12 Administration of Justice Act 1960, taken in conjunction with the FPR). I’m not linking to those posts, partly because I don’t want to start a pile on to individuals, partly because I don’t want to accidentally compound any breach of privacy rules or confidentiality, and partly because I want to flag a more general issue and don’t really need to link.
Suffice to say that the posts / articles I’ve seen have been both in the mainstream media and by means of tweet thread. The ones I’ve seen recently have been from solicitors but I’ve seen similar from barristers in the past on occasion.
Although I have no objection to the publication of anonymised case studies as a legitimate vehicle for furthering public debate, I have a number of beefs with this:
Firstly, I am anxious that some of these ‘anonymised’ case studies look as if they would almost certainly be identifiable to the people involved in them, even if they are not identifiable to the public at large. So, one recent tweet thread about a children application which gave specific details of the ethnic origin of the family (along with a detailed procedural chronology) would almost certainly have been one that the parties (and probably the judge) would have recognised had they seen it. It seems highly likely that the author of the tweet thread was one of the lawyers in the case (how else did they know all this?). Did they have their client’s consent to publish this information, woven in, as it was, with their own perspective on the case? Perhaps they did, and I am being unfair. Even if they did, I doubt that they had the opposing parties’ or the judge’s consent. Again, perhaps they did and my hypothesis is built on quicksand. Or perhaps it had never even crossed their mind because the post was entirely harmless (it was pretty unobjectionable in terms of wider identification of the family, albeit probably a partisan account). I wonder what would happen if the other party recognised their case and took exception? Yikes.
Perhaps, perhaps, perhaps (as Cake once sang).
Secondly, I am annoyed that it seems to be ok for lawyers to do this – that is, to blithely adopt the ‘Hey ho, no harm done’ approach to anonymisation of case studies, when – if a similar approach were adopted by a legal blogger or journalist without a specific application for permission to report – all hell would break loose and the cry of ‘contempt of court’ would go up (Perhaps). Maybe someone will tell me it would be totally fine for a journalist to publish this as long as it was not identifiable (the mainstream newspaper who published one solicitor’s recent ‘anonymised’ case study evidently thought so – or perhaps they were testing the water, pushing the envelope, sticking two fat fingers up etc etc). But perhaps there are just double standards at play here….
Not even just double standards. A journalist / publisher does have to adhere to s12 AJA 1960 which prohibits publication of ‘information relating to’ children act proceedings heard in private (even if a lawyer is confident nobody will mind and they re therefore effectively exempt), but reporters don’t have the added layer of a specific duty of confidentiality or other ‘best interests’ duties to a client who is a party to those proceedings. Here, neither of these issues appear to have acted as a chill on the ability of these lawyers to publish details in support of whatever point they were trying to make about flaws in the law or judicial process…
And a third thing (my grumbles always come in threes, like all good buses): one might argue (if feeling a little grumpy and churlish of a Sunday night), that if a lawyer wants to complain about the probity or wisdom of a particular decision in a case they are involved in, then they should either appeal it OR at least ask for the judgment to be published so that those who are genuinely interested in assessing that complaint can form an informed view about whether or not those complaints are fair and balanced, when seen alongside the full reasoned judgment. It’s easy to publish a tweet thread some pattern of injustice and giving an example of an unnamed judge in an unnamed court who made an outrageous decision, and to highlight a few select facts that seem to support the general proposition – but it takes far more calzones* to actually evidence that properly. It’s one thing for a litigant (in person) to grumble online about the injustice of their case, but shouldn’t we expect more from the lawyers involved? There are different views about the extent to which it is proper or permissible to talk about cases we have been involved in, but I don’t think that those issues can be massaged away by sleight of hand of simply not making clear if the case is one you’ve acted in.
Don’t get me wrong, I’m not saying I’ve never written a tweet or a blog post referring to things that have happened in my cases. Of course I have, though I tend to refer to trends or phenomenon that I have observed rather than giving an account of individual cases. But in any event, I never put stuff out there in terms that would enable anyone to identify one of my cases (except where permissible because of a published judgment). And never, I hope, in breach of s12. Perhaps I am too careful.
Anyway, the point I came here to make (though I seem to have been distracted en route) – was that EVEN IF the stuff I am seeing is in fact entirely permissible (which I don’t think it is if you read the judgments telling us what s12 MEANS in practice), the real life effect of s12 is that it stops legal bloggers and (most) responsible journalists from publishing accounts of things they’ve observed or been told about ‘just in case’, given the potential penalties, whilst (some) lawyers seem to feel that the same rules don’t apply to them (And, as we all know quite a lot of parents just stick two fingers up to the stupid rules and publish whatever they like). Perhaps these lawyers are more confident that they are on the right side of the line than I would be – but I would never ever publish accounts with a level of detail that would enable my client or anyone else in the case to identify themselves or the case – certainly not without my client’s consent, and even then very probably I would feel unable to publish for fear of accidentally doing a contempt whoopsie. But the upshot is that it’s the media are the only cohort who are actually constrained by s12, and strangely are the subject of the most criticism for irresponsible or tendentious or ‘inappropriate’ reporting.
Frankly, I find it all a bit puzzling.
Sorry for the massive subtweet-by-blogpost. I don’t want to be unfair on anyone, and I also don’t want to start a big barny. I don’t want to stop people writing about their cases as long as they are mindful of their duties towards their clients and the need to protect confidentiality and anonymity – I suppose I just want to publicly scratch my head and ask the question:? why is this ok when we get so agitated about reporters publishing, frankly, almost anything at all? I suppose the answer is probably because we think lawyers are the ‘good guys’ and we don’t really trust reporters… But (again without wishing to be disparaging), tweet threads or comment pieces arguing for a particular position whilst revealing only very select nuggets of information about what will inevitably have been a detailed piece of legal reasoning would not satisfy even the most basic standards of journalistic balance. To frame it differently for lawyers: submissions that skate over or are disconnected from the actual evidence in the case are the least persuasive submissions of all. At least to anyone paying proper attention.