Truth or dare: How deterimental is publicity in family cases?

Is the Family Court getting an undeserved bad press?

Mr Justice Munby is troubled. He feels that the Family Court and Court of Protection are getting a bad press because of some seemingly perverse decisions that are making their way into the public’s consciousness. The judge was already intending to open them to greater scrutiny next year.  Now he has announced his intention to take control of a widely reported recent decision when an Italian mother was sedated and forced to undergo a caesarean procedure without her consent.  Her baby daughter was then removed two days after the birth and placed in care. 

The Liberal Democrat MP, John Hemming, has made something of a name for himself calling for an end to secrecy. He seemed even more excised than Mr Justice Munby by this decision.  Most of us were circumspect about the rights and wrongs of the case. Hemming had no such difficulty and told us that “this has a fair chance of being the worst case of human rights abuse I’ve ever seen”.

It’s a difficult balancing act for private client lawyers trying to get an important court decision into the public domain without falling foul of Section 12 of the Administration of Justice Act 1960, which is widely drafted and unlimited in time. I was involved in the recently reported case of FvF [2013] where I was acting for the mother.  My client opposed an application to force her 11 and 15-year-old daughters to have the MMR vaccination against their explicit wishes. I was shocked by the decision that it was in the children’s best interests to compel them to undergo an invasive procedure when any serious health risks arising from not being vaccinated were significantly lower than the risk of being struck by lightning.  But before leave to publish the anonymised judgment was given, my client, never mind her lawyer, could, theoretically, have been guilty of contempt by discussing the case with another member of her family. 

Last week, the media reported a case concerning a three-year-old boy who, although born in an Arab country, had been in this jurisdiction for most of his short life receiving treatment for a life-threatening condition. His father was refusing consent to a bone marrow transplant although without it, we were told, the child was likely to die quickly because his immune system had been shut down in preparation for the operation. 

From an outsider’s viewpoint, that seems to have been the most straightforward decision of the three cases mentioned, whereas the arguments as to best interests in the other two are more nuanced.  But in truth, how can we really know if we’re not involved as lawyers or experts in the case?

There seems to be an inexorable move towards greater openness. These cases might suggest that this is for the best, but a media storm can sometimes affect visibility.  Just how sensitive do we want our judges to be to the court of public opinion?

Philippa Dolan, partner, Ashfords