Damaging publicity

Children, our society believes, are essentially vulnerable human beings whom the law needs to protect from various kinds of harm. Among the possible dangers they face is that which arises, especially these days, from publicity. We therefore have laws which, other than in exceptional circumstances, prohibit the media from revealing the identities of children involved in court cases, whether as the accused in youth courts or as innocent victims or pawns in cases that come before the family courts - bitter divorces or care proceedings.

But we are also living in a country which is passing through a phase of demanding to know more and more about matters previously kept private. Transparency is the watchword of the decade; freedom of expression and the right to know are the ascendant slogans of our time. But how does this desire to expose more about our system of justice fit in with our responsibility to protect the vulnerable?

To be fair to the Department for Constitutional Affairs, last week's discussion paper on opening up the family courts to greater publicity does not go overboard in treating transparency as the ultimate in human achievement; and it emphasises several times that an increase in reporting should not necessarily mean less anonymity for children. Yet I am worried.

Last month, the court of appeal ruled that a father in a bitter dispute with his ex-wife over his contact with their 10-year-daughter should be allowed to publicise the issues in his case, even though his going public would also reveal the girl's identity. The court did carefully consider what effect this would have on her, and decided it would not be harmful. But I am still concerned that this decision opens the door to a growing number of judges being overcome by the freedom of expression juggernaut, at the expense of the children. I am not against the principle of open justice being extended to the hitherto secret recesses of the family courts system; but the child's right not to have his or her life ruined by publicity must come first.

I have reservations about another bit of government thinking. The discussion paper suggests, admittedly tentatively, that children who have been involved in court proceedings should, when they become adult, be entitled to see the details of what was said or written about them. At present, children in bitter divorce proceedings will only know what their parents have chosen to tell them, which may be a lot, a little or nothing, but will inevitably be distorted. Children who have been taken into care, too, will rarely be told what exactly in a parent's or parents' behaviour or situation was so awful or tragic as to justify their being removed from their homes.

My feeling is that allowing 18-year-olds to be told what really happened, many years before, is likely to engender more distress and trauma than bring relief. To know more is not always a good thing. I described it in this column last year as "a story of cover-up, double-dealing, maladministration, dishonesty and deliberately issuing misleading information (also known as telling lies)". The party responsible for all those behavioural shortcomings was the Department of Trade and Industry, and I'm delighted to report that it is being made to suffer for its appalling conduct.

Without going into details, the DTI started behaving badly after the whistle-blowing charity Public Concern at Work (PCAW) obtained a high court ruling that the public were entitled to know more than they were being told about whistleblowing issues in claims brought before tribunals. The DTI, instead of furnishing the information, tried to hide it even more, embarking on a campaign which, the parliamentary ombudsman reported, involved misleading parliament, the high court, the public and PCAW.

Last week it was announced that the DTI will be paying £130,000 to PCAW as compensation for wasting the charity's time - a seldom-used category of damages. Even more unusually, the DTI is giving £15,000 to PCAW in respect of the eloquently described "botheration" - in effect the distress and unhappiness - that the department created by its conduct. It is common for individuals who have been the victims of maladministration to be given compensation for botheration, but this is believed to be the first time that an organisation has benefited.

Marcel Berlins
17 July 2006

http://www.guardian.co.uk/commentisfree/story/0,,1822018,00.html

 
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