Munby upholds transparency in Facebook case

Sir James Munby has allowed the publication online of film footage but not the name of a baby removed from its parents, in an important ruling on transparency in the family courts, social media and the internet.

In Re J (a child) [2013] EWHC 2694 (Fam) , Staffordshire County Council applied for a reporting restriction order relating to the youngest of the couple’s four children, after the father posted onto Facebook covert filming of the local authority delivering an emergency protection order, and abusive posts in which he lambasted social services, identified his children and named the social worker assigned to the case. An interview with the father was uploaded onto Youtube and UK Column Live.

The couple’s three other children had already been removed from the parents.

Sir James, the President of the Family Division, said “human justice is inevitably fallible”, and it is necessary to maintain public confidence in the system.

“The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts.”

While a judge could determine what was and was not lawful, he said “it is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish.”

Granting a contra mundum injunction to last until J’s 18^th birthday, Munby J said J’s future adoption prospects, if he is permanently removed, could be harmed if he were identified. However, it was difficult for anyone but the parents to recognise a newly born child.

“I simply fail to see how naming the local authority, the social workers, the local authority’s legal representative or the children’s guardian, or even all of them, can in any realistic way be said to make it ‘likely’ that J will be identified, even indirectly. The risk is merely fanciful.”

He concluded that “the balance between the public interest in discussing the workings of the system and the personal privacy and welfare interests of the child is best and most proportionately struck by restraining the naming of the child while not restraining the publication of images of the child. The effect of this is that (a) the essential vice – the identification of the child – is in large measure prevented, (b) internet searches are most unlikely to provide any meaningful ‘link’ in the searcher’s mind with the particular child, and (c) the public debate is enabled to continue with the public having access to the footage albeit not knowing who the anonymous child is whose image is on view.”

Geraldine Morris, head of family at LexisPSL, says the president's approach corresponds with his guidance on transparency in July 2013 in which he indicated his wish to move away from perceptions of "secret" family courts.

“One wonders, however, if his approach in this case would have been different had the child been older, especially if it had involved a teenager. The anonymity of children during proceedings, but not after, is provided for in s 97 of the Children Act and the court must always have regard to the welfare test in that Act," she adds.