The recent furore over media headlines about a “Christian child forced into Muslim foster care” has highlighted the need for greater transparency not just in the family justice system but in relation to child protection services generally.
“The story, which first broke in The Times, involved a five year old “white Christian child” who had been taken from her family and “forced” to live with a “niqab wearing foster carer” where she was allegedly encouraged to learn Arabic. It said she had to remove a necklace with a Christian cross, was not allowed to eat a meal she had brought home containing pork, and was told that Christmas and Easter were “stupid” and European women “alcoholic”.
The reporter was The Times‘ Andrew Norfolk, who is widely respected for his work in exposing the Rotherham child sex scandal. In the wake of criticism for what was seen as a provocative anti-Muslim slant and selective approach to the facts, he defended himself on the BBC Asian Network by saying he wasn’t responsible for the headline (few reporters are), and that he was constrained in what he could reveal to protect the interests of the child and by the reluctance of the agencies involved to comment on the case. He said his real target was the “scandal ridden” London Borough of Tower Hamlets whose children’s services had been criticised in an Ofsted report.
The next day there was a hearing at East London family court at which the placement in foster care was ended and the girl was placed, instead, in the care of her maternal grandmother, as previously requested by the girl’s family. Judge Khatun Sapnara made it clear that the hearing had been scheduled to take place anyway, and that nothing in her order had been influenced by the media coverage. The approval of the grandmother had simply been awaiting completion of assessments as to her suitability.
Two things are notable about the hearing.
First, the press were initially excluded from the court, by staff who appear to have misunderstood the rule, under r 27.11 and PD 27C of the Family Proceedings Rules (FPR) that “duly accredited representatives of news gathering and reporting organisations” should be permitted to attend private family court hearings unless specifically excluded by the court.
Second, the judge released a redacted copy of her order, which was published on the Judiciary website. The release of an order is certainly unusual, and goes further than the transparency guidance issued by the President of the Family Division, Sir James Munby, in February 2014, which encouraged the publication of suitably anonymised final judgments to boost public understanding of divorce and care proceedings (see Practice Guidance (Family Courts: Transparency)  1 WLR 230).
However, it was beneficial in a number of ways.
Part of the problem with cases like this is that, the various agencies involved in child protection and care proceedings are not only unable to discuss individual cases with the press, but refuse even to engage with them in more general ways that might promote better public understanding.
Courts, on the other hand, normally sit in public (see Scott v Scott  UKHL 2;  AC 417), so hearing cases in private to protect the interests of children and vulnerable parties is an exception to the general rule. The press resent what they regard as the “secrecy” of courts which sit “behind closed doors” despite the fact that they, unlike ordinary members of the public, have the right to attend the hearings, under FPR 27.11, though there are considerable restrictions on what they can report.
Even when they can and do report cases, the press often get things wrong. This is one of the reasons why the Transparency Project was set up. This is a charity which aims to “explain and discuss family law and family courts” in England and Wales. Much of its work consists in correcting misreporting in the press. In a recent blog post, The most secretive court in all of Christendom… its Reporting Watch Team comments on the “media frenzy” in this case.
It makes the point that, while court staff should never have excluded reporters from the hearing before Judge Sapnara, one of the reasons why they might have done so was the sheer rarity of ever seeing a journalist in court. This is a privilege, incidentally, which is not accorded to others who might usefully be involved in scrutinising the workings of family justice, such as academic researchers or even other lawyers.
So transparency is a two-way street. A member of the Transparency Project, the journalist Louise Tickle who reports on family law and social affairs, mainly for The Guardian, suggests that the problem is more complicated:
“While the media must try to be fair and balanced, as well as accurate in all our reporting, the problem is always that it is impossible to give the reader complete information from one’s investigations into family law cases because of the risk of identification, and then being in contempt. This means we cannot give – or assess – alternative perspectives when we hear (usually from an aggrieved parent, who may be justified, or not) of an alleged injustice or badly managed case because local authorities won’t comment at all. Partial accuracy risks misleading your audience.”
That seems to have been the problem in this case: the “partial accuracy” that actually gave a lurid and misleading impression. The publication of the court order helped by revealing a number of additional facts, including for example that the grandmother with whom the family wanted the child to live appeared to be Muslim as well, and that the mother, from whose care the child had been removed by police exercising powers of protection for the child’s own safety, had issues with drug abuse and alcohol. So the case was far less clear-cut than had at first been suggested.
More significantly, from the transparency point of view, because it is so rare, the Mayor of Tower Hamlets issued a statement. He confirmed that “the child was in fact fostered by an English-speaking family of mixed race” and explained that “while an important consideration, the cultural background and religion of the foster parents should not automatically prevent people from providing a safe and loving home”, and a “fostering decision has to consider a large number of complex factors, including proximity to the child’s support networks and school”.
Reading the mayor’s statement and the facts itemised in the court order, it seems clear that the story was a much more nuanced and complex one than the original reporting suggested. No doubt some newspapers would want to put a sensational spin on such a story in any event. But even if one wanted to report the story in an even-handed and balanced way, would it be possible to do so?
Transparency in the family justice system, championed by the judiciary, is all very well in so far as it goes. But perhaps it needs to extend its scope – both in terms of who it privileges with access to information, and in terms of going beyond or behind the court and embracing some of the agencies, such as the police and social workers, whose lack of engagement has helped fuel a similar culture of suspicion and mistrust as that which had bedevilled the allegedly “secret” courts.
Paul Magrath is Head of Product Development and Online Content at ICLR and is also a member of the Transparency Project, which has been shortlisted for the Jordans LexisNexis 2017 Family Law Commentator of the Year award. He tweets as @Maggotlaw