With social workers identified in the case of Elsie Scully-Hicks reported to be receiving death threats, BASW has questioned whether the risks to professionals outweighs any public interest in their identification. The concern for the safety and welfare of professionals, honestly trying to do their best for children in difficult circumstances, is a legitimate one. BASW has urged their members to seek support from their employers if they find themselves subject to public criticism or abuse and has reminded local authorities of their duty of care towards their staff.
For the most part, Nagalro members do not have a large, well-resourced employer behind them, to whom they can look for support. They are self-employed, sole practitioners who must look to themselves when they find themselves placed at risk. How are they to deal with such a situation?
In my view, to argue for anonymity is to try to fight a battle already lost and which was probably never winnable in the first place; even if we really wanted to. The vast majority of the social workers in the Scully-Hicks case will (I imagine) have also given evidence in the subsequent Crown Court proceedings, or will be required to give evidence at the inquest. Those proceedings are public and can be fully reported. It is inevitable that their identities would have become known.
Should those identities have still been protected? I think that it is counter-productive. If you prohibit people from having this information, then you simply leave an information-void for the wildest of the conspiracy theorists to fill. Allegations of a state cover-up would become unanswerable and wrong-doing assumed by default.
The issue was considered in great detail by the President, Sir James Munby, in Re J (A Child) [2013] EWHC 2694, when Staffordshire County Council tried to persuade the court that a worldwide injunction should be issued to prevent the identification of either the local authority, any member of its staff or the children’s guardian, if that was likely to lead to the identification of the child. Although a much more restricted order was made there is a useful discussion about the need for transparency in the family court, as far as this is able to be reconciled with the welfare of the child.
I have for many years answered the charge of ‘secret courts’ by explaining that the family courts were ‘private’ not ‘secret’ and suggesting that if anyone really wanted to know what happened, a day in a law library with some volumes of the Family Law Reports should more than satisfy their curiosity. That argument has not won the day. Confidence in the family justice system was rapidly ebbing away, not only with the press and public, but also with politicians, who have the power to impose solutions of their own.
Would any of us actually object if our identities were available within accurate and responsible reporting and if that information was treated with appropriate respect by those who received it? I think not.
The issue is not, in reality, the disclosure of identities; it is the use which is then made of that information by the press or by members of the public, often using social media.
There is an old adage in the newspaper industry, ‘if it bleeds, it leads’. Newspapers can only exist by selling papers. Today, they have to compete for their existence with an array of free-to-use sources of information. A headline reading ‘Court and Social Workers Handle Hard Case Well’ is not going to have copies flying off the racks in newsagents across the country. The journalist knows that scandal and sensation will make people buy their paper. They depend on those sales to pay their mortgage.
In Re J, the President accepts (at paragraph 40) that the person reporting the proceedings ‘may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings’ but explains that this is simply the price which we pay for a free press. He quotes from Lord Oliver of Aylmerton in the case of Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248, who said that ‘the price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved’.
So that is the environment within which we all have to work. We may speculate whether Lord Oliver would have been quite so sanguine, if he was receiving death-threats on Facebook and had a baying pack of reporters and photographers at his door, but that does not alter where we are today. How can individual practitioners, lacking the benefit and resources of a large organisation to support them, protect themselves against unwarranted attacks?
Where the attack on an Independent Social Worker is made in the press or they are subjected to unacceptable levels of harassment by reporters, the first recourse should be a complaint to the editor of the relevant publication. Most publications are subscribers to the Editors’ Code of Practice which, amongst other things, deals with accuracy (para 1); privacy (para 2); and harassment (para 3). Publications are expected to have their own in-house procedures for dealing with complaints swiftly. If the report is accurate, even if it is uncomplimentary, there may be little which can be done, besides growing a thicker skin. On the other hand, if facts have been distorted and sensationalised, then a complaint should be made as quickly as possible and a public retraction and apology sought.
If a complaint cannot be satisfactorily dealt with by the editor then a complaint may be made to IPSO (‘Independent Press Standards Organisation’) provided that the publication is a member of IPSO[i] and the complaint is made within four months of the publication or conduct complained of. IPSO can look at complaints about both published material and the behaviour of the publication’s staff. When making a complaint it may be wise to clearly link each head of complaint to the relevant paragraph of the Editor’s Code of Conduct, which can also be found on the IPSO website.
Professionals who wish to go beyond a complaint and to commence defamation proceedings against a publication, would be well advised to seek specialist legal advice before embarking on what can be an extremely expensive procedure.
Beyond the actions of the press, social workers named in proceedings may also have to face harassment and abuse through social media and from members of the public. Most of the things which cause the greatest alarm are, in fact, criminal offences. It is a serious crime, potentially leading to imprisonment, to make threats to kill someone. Under section 16 of the Offences Against the Person Act 1861, a threat to kill someone, made with the intention that the recipient would fear that it would be carried out, carries up to ten years imprisonment. Any social worker who finds themselves subject to such behaviour should not hesitate to contact the police and demand that action is taken.
Even where the behaviour falls short of death-threats, there may be criminal sanctions. Under the Protection from Harassment Act 1997, if someone pursues a course of conduct which amounts to harassment of another person and which they know or ought to know amounts to harassment, then they are guilty of an offence carrying up to six months imprisonment. To amount to ‘a course of conduct’ the harassment must have taken place on at least two occasions.
The threshold for what may amount to harassment is not particularly high and is quite adaptable to cater for the width of human ingenuity when it comes to being thoroughly vile to others. It is defined in s7(2) of the Act as including ‘alarming the person or causing the person distress’.
Whether someone should know that their behaviour is harassing is a matter of objective assessment. Under section 1(2) of the Act, a person ought to know that they are harassing if ‘a reasonable person in possession of the same information would think that the course of conduct amounted to harassment of the other’ (emphasis added). The words in italics are important because they allow the law to protect individual vulnerabilities. The example I have tended to use, is that if someone were seen repeatedly walking up and down the street with an empty pram, most of us would not give it a second thought. On the other hand, if we were then told that they were walking past the home of a lady who had just suffered her third miscarriage, the scenario takes on a much darker hue.
The Protection from Harassment Act is a thoroughly useful statute, because it has both criminal and civil limbs to it. The same behaviour which may be prosecuted as a crime may also be the subject of civil proceedings for an injunction and damages. If someone continues to harass their victim after an injunction has been served on them, they commit a more serious offence punishable by up to five years in prison. Legal aid may also be available for such proceedings.
The use of social media as a weapon, is a phenomenon which the law is still trying to adapt to. Problems can arise from the anonymity of the abuser or because the relevant website is in a different jurisdiction. Evidence suggests that the operators of social media sites may not be particularly effective at filtering out or taking down abusive content. It is difficult to know whether this is a problem of disinclination or the sheer volume of material. From the victim’s perspective it really doesn’t matter which. As people who may, from time to time, find themselves thrust into the public eye, it is perhaps a sensible precaution to look at our use of social media and how easily discoverable we are on it. Countless generations have lived happy and fulfilled lives without a Facebook page.
Practitioners should not tolerate abusive behaviour or harassment directed towards them. The same law which allows details to be made public also regulates the behaviour of those who are given access to it. It is not that the law permits people to be abused, rather, because we are independents, we have the responsibility for organising our own defence. Whilst the remedies may be far from perfect, we should not fail to do so.
[i] A list of member publications can be found at https://www.ipso.co.uk/about-ipso/who-ipso-regulates/