In yesterday’s Telegraph online, Cristina Odone blogged on a recent “scandal” relating to Mr Justice Mostyn’s request to carry out his responsibilities as a duty judge in Tenerife. I will leave comment on the main story to Charon QC, save to say that Odone uses the story as a means of judge-bashing, a sport which is currently popular in the press and even with politicians. “Who”, asks Odone channeling public anger, “do these judges think they are?” Moreover,
A series of judgments have left law-abiding citizens bewildered, as when Lord Justice Munby and Mr Justice Beatson ruled that Mr and Mrs Johns, a Christian couple, should be banned from fostering because they regard homosexuality as sinful.
Odone is referring to Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin). She is quite wrong that the decision of the court was to ban Mr and Mrs Johns from fostering because they regarded homosexuality as sinful.
Rosalind English has already covered the case in detail, but the basic point was that the local authority in question had made no decision as to the Johns’ suitability to foster, but rather had deferred it. So, Lord Justice Munby had no option to say whether the Johns could foster or not. Instead, he was presented with an “abstract” application supported by no evidence on either side. He reluctantly proceeded on the basis that he had been asked to give general guidance on how the local authority should exercise its judgment when deciding a fostering case.
On whether the attitudes of potential foster carers to sexuality were relevant when considering an application for approval, he ruled that it was
quite impossible to maintain that a local authority is not entitled to consider a prospective foster carer’s views on sexuality, least of all when, as here, it is apparent that the views held, and expressed, by the claimants might well affect their behaviour as foster carers.
This is “not a prying intervention into mere belief” and “Neither the local authority nor the court is seeking to open windows into people’s souls.” Rather,
The local authority is entitled to explore the extent to which prospective foster carers’ beliefs may affect their behaviour, their treatment of a child being fostered by them. In our judgment the local authority was entitled to have regard to these matters; indeed, if the local authority had failed to explore these matters it might very well have found itself in breach of its own guidance and of the National Minimum Standards for Fostering and the Statutory Guidance…
The crucial point is that despite saying that a local authority is entitled to examine how a prospective fosterer’s beliefs on sexuality may affect their treatment of a child – and it seems difficult to see how this could be wrong – he made no order in respect of the Johns. The local authority had made no decision and “there is likely to be a broad range of factual contexts for reaching a particular decision, the legality of which will be highly fact-sensitive“.
Misrepresenting the law in a throwaway comment may seem innocuous but a quick read of the angry comments below Odone’s blog reveals the damage that her misrepresentation has already done. Judges are unpopular enough without being accused of and criticised for making decisions they didn’t make. As one of the most senior judges Lord Neuberger said in a recent speech on open justice:
Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law.
He is right, and for that reason Cristina Odone should be on the legal naughty step. Legal commentator Joshua Rozenberg recently told Legal Week that “the newspapers don’t provide the service they did [in the past]” due to the lack of designated legal correspondents. Presumably, it would be those correspondents who would check over articles which purport to comment on the law.
If the presentation of law in newspaper articles concerns you, the online Press Complaints Commission form is here.
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