07:08, February 19 126 0 theguardian.com

2019-02-19 07:08:04
Why I fought for the right to open up family courts to greater scrutiny

On Friday, I was at the Royal Courts of Justice for a hearing in front of the most senior family judge in the land. I was challenging a reporting restriction order (RRO) that I believed had been made unlawfully last autumn in a Portsmouth family court. The restriction order banned the media from reporting on Southampton city council’s attempt to remove a young child from her mother, for ever.

The child had been placed in foster care in 2015. In 2017, the council applied for her to be adopted. The family law court judge ruled in the council’s favour. But the mother appealed against the decision and at the beginning of 2018 the court of appeal declared that Southampton children’s services had offered “only the slimmest of evidence” to back up its assertion that the little girl should be adopted, and that the judge had “fallen into error” in analysing whether adoption would be best for the child, and his ability to do so was “compromised” by weak evidence from the local authority. It ruled that if the council still wanted the child adopted it would have to make its case again. A date was set for October. Yet, unbeknown to any journalist, during the summer the council reunited mother and daughter. A court hearing did go ahead in October 2018, however, at which the council applied for a RRO banning the publication of names of professionals who had been involved in the case, or the ages and ethnicity of the family.

Family court proceedings often cannot be fully reported and there are some good reasons for privacy to safeguard children and their families. But court of appeal judgments are in the public domain unless, as happened in October, a judge slaps a RRO on it.

I emerged from court on that day feeling furious – and frightened. It is shocking enough that family courts are not subject to anything approaching the level of openness in the rest of our justice system. But when one family judge acts, in secret, to remove a child from her mother, and a more senior family judge then says that the media may not report how weak local authority evidence, compounded by questionable judicial decision-making, has almost destroyed a family, then it’s dangerous territory.

Since then, I’ve discovered that fighting for the right to freedom of speech is scary, time-consuming and far too expensive for most people to contemplate. There is no automatic legal aid for a parent to appeal against an adoption decision. In this case, the mother scrabbled together the £60,000 to mount a legal challenge. A number of lawyers warned she had almost no chance of success. But, she told me, she had wanted her child to know that even if she failed, she had tried her hardest to keep them together.

But the RRO meant that the public would never know that a terrible judicial decision could have resulted in a child losing her relationship with her mother. And this is why, risky though it is as a freelance reporter to go to court – I stood to pay everyone’s costs if I lost – I was determined to argue the case.

I crowdfunded to cover the costs; £528 simply to apply for permission to appeal, then a further £1,199 for the hearing itself. The mother was represented for nothing by solicitors Boardman Hawkins & Osborne and barrister Lawrence Messling. My legal bill – representation was provided pro bono by human rights silk Paul Bowen QC, family barrister Sarah Phillimore and solicitors Simons Muirhead & Burton – plus the risk of paying the costs of the other parties had I lost, would have been in the many tens of thousands of pounds. This is the price of fighting for the freedom of speech required to keep the state accountable: the cost to this mother to protect her daughter’s right to be brought up in her birth family has been incalculably more. Their story deserves to be told – and, thanks to help from so many people who believe that family courts must urgently become more transparent in their dealings, it now can be. And following this important victory the country’s top family judge has vowed to make rules covering reporting restrictions in cases involving children much clearer.

Louise Tickle writes on social affairs and family law

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