Sir James Munby is the judge who officiated in the
case regarding custody of Ella Gareeva's children.
Sir James Munby, president of the Family Division of the High Court, said the public had a right to know “what is being done in their name” and called for the courts to adapt to the internet era Photo: BRIAN SMITH FOR THE TELEGRAPH
The most senior family judge in England and Wales has rejected a legal bid to ban the naming and shaming of social workers in a controversial case which saw a baby taken from his parents against their will.
Sir James Munby, president of the Family Division of the High Court, said the law could not be used to silence the father of the infant - known only as “J” - who was forcibly taken into care by social services on the day he was born, in April this year.
The judge said a legal challenge should not be used to “spare the blushes” of officials, even if they were subjected to criticism which was “abusive and unjustified”.
In a ruling which is expected to have far-reaching implications for open justice, the judge demanded more transparency in the courts because publicity in newspapers and on the internet plays a vital role in avoiding miscarriages of justice.
It comes after widespread concern about secrecy in the family courts - which usually hold hearings in private - and a separate court, known as the Court of Protection, which deals with life-or-death decisions about patient treatment.
Sir James said: “There is a pressing need for more transparency, indeed for much more transparency, in the family justice system.
“We must have the humility to recognise - and to acknowledge - that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.
“The remedy, even if it is probably doomed to only partial success, is ... more transparency. Putting it bluntly, letting the glare of publicity into the family courts.”
He added: “The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction ... even if the criticism is expressed in vigorous, trenchant or outspoken terms.”
The role of an injunction was not to “spare the blushes of those being attacked, however abusive and unjustified those attacks may be”, Sir James said.
Staffordshire County Council sought an injunction after J’s father posted material about social workers on the internet.
He also posted video clips on Facebook, the online social network, and YouTube, the video website, of social workers taking the child into care under an emergency protection order. He also identified his child by name.
The parents’ three other children, aged 10, four and 18 months, have also been taken into care.
The father had previously described social services as “wicked” and “predatory”, and implied the “SS” were making financial gains from the adoption of his children.
Staffordshire applied for a wide-ranging reporting restrictions order which would prevent the publication of the child’s name, address and image. It would also have barred anyone from identifying the county council or employees involved in J’s case.
The judge refused the application and instead made a less restrictive order banning the naming of the child and his parents.
Crucially, it means J’s father will be free to continue publishing criticism of social workers, including images of his son, providing he does so anonymously.
The judge said his decision was intended to protect the child from identification while allowing a public debate about the care system.
Sir James said the internet posed “enormous challenges”, but added: “The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies.
“We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles.”
In July, Sir James published guidelines setting out how thousands more court judgments in care and adoption cases should be made public.
Councils have been criticised for using similar legal methods inappropriately in the past.
For example, in 2008 a senior judge said East Sussex County Council was guilty of a “wholly unacceptable abuse of power” for rushing through the adoption of an 18 month-old child and blocking a challenge by the child’s natural father.
Related Articles (Telegraph):
Web users struggle to cover their digital tracks 06 Sep 2013
Could this be the end of secrecy in 'child protection’? 07 Sep 2013
Family courts risk 'collapse' as surge in custody cases follows legal aid cuts 11 Jun 2013
New guidelines won’t improve a rotten system for children 27 Jul 2013
Judge: open family court hearings 02 Mar 2013
Fines for delays and cull of expert witnesses to speed up family courts 31 Jul 2012
The judge said a legal challenge should not be used to “spare the blushes” of officials, even if they were subjected to criticism which was “abusive and unjustified”.
In a ruling which is expected to have far-reaching implications for open justice, the judge demanded more transparency in the courts because publicity in newspapers and on the internet plays a vital role in avoiding miscarriages of justice.
It comes after widespread concern about secrecy in the family courts - which usually hold hearings in private - and a separate court, known as the Court of Protection, which deals with life-or-death decisions about patient treatment.
Sir James said: “There is a pressing need for more transparency, indeed for much more transparency, in the family justice system.
“We must have the humility to recognise - and to acknowledge - that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.
“The remedy, even if it is probably doomed to only partial success, is ... more transparency. Putting it bluntly, letting the glare of publicity into the family courts.”
He added: “The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction ... even if the criticism is expressed in vigorous, trenchant or outspoken terms.”
The role of an injunction was not to “spare the blushes of those being attacked, however abusive and unjustified those attacks may be”, Sir James said.
Staffordshire County Council sought an injunction after J’s father posted material about social workers on the internet.
He also posted video clips on Facebook, the online social network, and YouTube, the video website, of social workers taking the child into care under an emergency protection order. He also identified his child by name.
The parents’ three other children, aged 10, four and 18 months, have also been taken into care.
The father had previously described social services as “wicked” and “predatory”, and implied the “SS” were making financial gains from the adoption of his children.
Staffordshire applied for a wide-ranging reporting restrictions order which would prevent the publication of the child’s name, address and image. It would also have barred anyone from identifying the county council or employees involved in J’s case.
The judge refused the application and instead made a less restrictive order banning the naming of the child and his parents.
Crucially, it means J’s father will be free to continue publishing criticism of social workers, including images of his son, providing he does so anonymously.
The judge said his decision was intended to protect the child from identification while allowing a public debate about the care system.
Sir James said the internet posed “enormous challenges”, but added: “The law must develop and adapt, as it always has done down the years in response to other revolutionary technologies.
“We must not simply throw up our hands in despair and moan that the internet is uncontrollable. Nor can we simply abandon basic legal principles.”
In July, Sir James published guidelines setting out how thousands more court judgments in care and adoption cases should be made public.
Councils have been criticised for using similar legal methods inappropriately in the past.
For example, in 2008 a senior judge said East Sussex County Council was guilty of a “wholly unacceptable abuse of power” for rushing through the adoption of an 18 month-old child and blocking a challenge by the child’s natural father.
Related Articles (Telegraph):
Web users struggle to cover their digital tracks 06 Sep 2013
Could this be the end of secrecy in 'child protection’? 07 Sep 2013
Family courts risk 'collapse' as surge in custody cases follows legal aid cuts 11 Jun 2013
New guidelines won’t improve a rotten system for children 27 Jul 2013
Judge: open family court hearings 02 Mar 2013
Fines for delays and cull of expert witnesses to speed up family courts 31 Jul 2012
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