Media: social or antisocial?

‘Evidence’ in a case of child abduction should give us all food for thought, writes John Forsyth

The Holyrood Justice Committee last month held a round-table discussion on “the role of the media in criminal trials”. The issues that were raised have served as a taster for the debate to be held later this month in the full chamber.

Much of the round-table time was taken up by the need for a balance of the interests of prospective broadcasters in capturing “live” material from trials in progress – merely extending the public benches into the living rooms or smartphones of the nation – and the need to ensure that the true course of justice is not undermined.

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There was some mention of the effect of internet content or the instant commentary of social media such as Twitter or Facebook on proceedings, or on the standing of participants in proceedings. The main concerns expressed were that jurors may be tempted to second guess the evidence presented to them in court, and that they may have already been influenced prior to the trial itself by the viral narrative flying around cyberspace.

A high-profile and long-running child abduction case in the Australian courts has also shown how easy it is for social media to intrude into a civil case, with fair reporting and partisan misrepresentation merging indistinguishably into each other.

Several news bulletins last week showed dramatic and traumatic footage of the older two of the four girls at the centre of the case being forcibly propelled, upset and resisting, through Brisbane International Airport and taken on board a flight for Italy. The younger two had travelled on another flight. Passengers on the flights tweeted their observations about how the children were faring.

It was the latest chapter in a difficult story following the disintegration of the marriage between an Australian mother and Italian father. They had five daughters between 1997 and 2003, although the third-born had died in infancy. It was asserted in court that the death of the child had caused the father to suffer depression and affected the relationship between the parents. They formally separated in January 2007 and in November 2008 obtained in an Italian court a “consensual separation agreement”.

The couple agreed to have joint custody of the four girls and that the girls were to reside mostly with their mother, with visitation rights to their father on one afternoon per week after school until after dinner, and from after school each Friday until Monday morning.

The girls had only ever lived in Italy and Italian was their first language.

The story to this point is unhappy but far from unusual. What has raised its significance is the events following the departure for Australia in June 2010 of the mother and four daughters, then aged between seven and 13, for a four-week holiday. Though the girls did not know it, the mother had no intention of returning.

Under the terms of the Hague Convention of the Civil Aspects of International Child Abduction the father raised an action for the return of the children to their usual place of residence. The director-general of the Queensland Department of Child Safety initiated proceedings in February 2011 and the full hearing of evidence took place in May 2011.

Although the judge was critical of the evidence of both parents he concluded that the case the mother had made about the facts and circumstances of her departure from Italy did not stand up to scrutiny. She was found to have misrepresented the facts on crucial matters, not least asserting that she had somehow been helped by the Australian embassy in Rome to “escape” from Italy.

The judge ordered that the children should return to Italy so that lawful means of resolving the matter could be pursued there. The father was ordered to maintain the children financially in Australia and he agreed not to force them to return while the mother prepared an appeal.

The crucial turn of events appeared to be in May 2012 when the court decided that despite the fact that through the passing of time the children now appeared settled in Australia, that did not create sufficient exceptional circumstances for the May 2011 order to be discharged. The ruling was contingent on the father undertaking not to pursue any criminal proceedings against the mother should she return to Italy with her daughters.

Much of the focus of those proceedings has been on whether the sisters’ views had been sufficiently taken into account. The girls were interviewed again prior to the hearing and expressed the view that they did not want to return to Italy.

However, the judge found that the girls had been “significantly influenced” by the mother and her family, and that their desire to remain in Australia did not override the obligations imposed by the Hague convention. At that point the children went into hiding and a Facebook page, Kids Without Voices, was set up: “This page was started by four courageous sisters who wanted to have a say in their future.”

Emma Pinder of London solicitors Spring Law has followed the evolution of the case and the social media campaign.

“It has certainly generated animosity against the Italian father, hostility to the Australian courts and resentment of the Hague convention. It’s also soliciting donations to a fund. It certainly doesn’t tell the whole story by any means and you can see why people coming new to it might be outraged,” she said.

The father’s family in Italy has set up its own Facebook page, 4 Hidden Sisters.

Pinder added: “The airport footage was difficult viewing. What you will not find on any of the websites, or in newspaper articles, is the full reason why the authorities were brought in to locate the children and take them into care, an unusual step as the deadline for taking the children to the airport had not yet passed. According to the judgment in the emergency proceedings, the girls’ grandmother contacted the mother’s senior counsel and informed him that she was going to murder the girls and encourage the mother to kill herself.”

Campaigns, by definition, are likely to be subject to tunnel vision and, while the older girls at least would be in a position to instruct their own legal representation in England or Scotland, Pinder is concerned that the apparent strength of feeling expressed via social media was offered to the court as evidence.

“To suggest that the Australian sisters were excluded completely from the process would be untrue. What has yet to be determined is whether the consideration of their view was adequate and may lead to a further evolution in the way in which wishes of children are considered under the Hague convention. I would have been more concerned if the court had let them stay, and the precedent that could be set if one parent was successful in prolonging proceedings long enough for the original abduction to be overlooked,” she said.

“But the appropriate forum for such issues to be resolved is a courtroom and not a chatroom.”