Part one of this blog dealt with the decision in Re J, a very
difficult case concerning a 7 year old boy ('J') whose
mother had alleged that he was gender dysphoric and wanted to live
as a girl. At a final hearing in July (2016), a judge found that
the mother had imposed this belief upon J and, in doing so, had
caused significant emotional harm to J, and that J's interests
were better served by living with his father.
The judge then had to decide the extent to which details of the
case should be made public. He decided that a version of the
judgment could be made public, though with certain details removed
to protect J's identity. How he reached this decision is an
important reminder of how the courts will make trade-offs between
privacy and the public interest in significant cases.
The legal framework
In court proceedings about children, the welfare of the child is
the court's paramount consideration. But when it comes to the
reporting of those proceedings, the law requires a delicate
balancing exercise to be conducted between two rights protected by
the European Convention on Human Rights: Article 8, protecting
individual privacy and Article 10, protecting freedom of expression
(which includes the need to report matters of genuine public
As the judge noted: 'If I were here exercising a welfare
jurisdiction, that is to say one in which J's interests were
the paramount consideration, then I should wish to construct an
impregnable fortress around him to guarantee the peace and privacy
which he undoubtedly requires to recover from his extraordinary
experiences. I do not operate here...I am required to balance
rights and freedoms of "titanic proportions" '.
The judge recognised that the case concerned matters of public
interest, not least how concerns brought to the local
authority's attention had been inadequately considered. It also
included the importance that professionals in this line of work
should conduct an independent and thorough investigation even in
cases where, at face value, one parent's account of the
situation may appear to be well-reasoned and articulate.
Should we be allowed to know who 'J' and the others
The local authority applied for a 'Reporting Restriction
Order' suggesting that, for the protection of J, there should
be widespread anonymisation in any reporting of the case (to
include J, his mother, his father, the local authority, the local
authority's social workers, the CAFCASS officer and the experts
who gave evidence).
Everybody involved agreed that J should not be named. The judge
decided that the local authority should also not be named because
this would lead to the identification of the geographical area in
which J lived and therefore also the indirect identification of J
because the facts of the case were so striking.
He decided, however, that the individual local authority social
workers and the CAFCASS officers involved could be identified. He
recognised the 'obvious contemporary reality' that, through
this, someone who really wanted to could discover the area of the
UK within which J lives because such professionals tend to work
predominantly in one area. But he said that this should not lead to
the identification of J because his details and location cannot, in
any event, be published.
With regards to experts who gave evidence during the
proceedings, for example, the clinical psychologist who offered her
assessment of both parties, the judge decided that such experts
should be named. This is because they should only offer evidence to
the court realising that 'their conclusions and analysis will
be held to public scrutiny...not least because those conclusions
may be relied on by judges who are required to make some of the
most draconian orders in any jurisdiction, [including] the
separation of families...and the revocation of parental rights and
The balancing exercise facing the judge is a very uncomfortable
one. On the one hand, there is the need for justice to be conducted
openly and in a way that allows lessons to be learned from past
mistakes. On the other hand, the courts must try to prevent further
damage to the individuals and families involved in particular cases
through publication of the details of their lives. Where there are
the most serious lessons to be learned, the facts of the case are
likely to be the most striking and therefore the possible damage to
the families involved is likely to be greatest, which only serves
to compound the difficulty of the balancing exercise.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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