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Category Archives: transparency

Inaudible and jigsaw identification [Contains Agatha Christie Christmas spoiler gag]

You may be aware of the President’s guidance on Transparency, which sets out those judgments which ought to be published on Bailii, which is a site that is available for members of the public to use as it does not charge a fee or require a subscription.  The guidance sets out that all committal judgments should be published, and that’s a laudatory aim. It must be right that if a Family Court or Court of Protection are sending someone to prison (or even if they were asked to do so and said no) that the facts are put in the public domain so that they can be reported and debated.

You may be less aware that I’ve seen five examples since the Transparency guidance was published, of judgments going up on Bailii for all to see where the anonymisation process was insufficient.  For example, I have seen the real first names and ages of the children accidentally go in, the real address and name of a mother’s boyfriend said to pose a risk, the real surname of someone accidentally go into the Reporting Restriction Order judgment saying that the surname was not to be revealed, and in the worst example, a case that ended with the children going off for adoption accidentally leaving in one paragraph the real name of the mother.  In each of these cases, I and others have contacted Bailii who acted very swiftly in taking them down and making the corrections.  It isn’t Bailii’s job to proof read the judgments – they publish the transcript that a Judge has sent them saying that “This is okay to publish please” or similar.

Accidents can happen.

The process is that the judgment is transcribed, the Judge checks it carefully and makes any corrections, and then the corrected version goes onto Bailii, where it is available for anyone to look at. Sometimes that careful process can be a bit slow – when there’s a story in the news and you know that there’s been a Court case sometimes that careful process means that it takes weeks to get the proper judgment available to read and discuss and the newsworthy event is long forgotten then, and whatever slant the Press put on it becomes the definitive version.

But of course, Judges are people, and people under pressure. They have to read huge amounts of material, have to make complex and emotionally difficult decisions, and they have to listen to lawyers drone on and on for about six hours a day, which must be pretty close to intolerable.

 

Being a Judge could drive you to U.N.Owen methods of resolving stress

Being a Judge could drive you to U.N.Owen methods of resolving stress

 

[Apologies to those who haven’t watched it yet.  Apologies to those readers who were hoping for the Aiden Turner towel photo instead of this one]

 

So you can see perhaps that a Judge pressed for time could miss a stray reference – redacting a document is tricky and it takes time and concentration – and usually a second pair of eyes.  I’ve no doubt at all that the mistakes I’ve mentioned above were just honest mistakes that slipped through. Nonetheless, even an honest mistake can still be costly to the persons involved whose privacy ends up being breached.

 

This one, however, doesn’t entirely feel like it was checked at all before it went to Bailii.

 

Newcastle City Council v Daniel Murtha 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B193.html

 

A shame, because the bits that aren’t  (inaudible) are largely very good, and it raises an important and interesting legal issue about the extent to which in a committal hearing which is to the criminal standard of proof, hearsay evidence (which is admissable in Court of Protection and family cases) can be relied upon, and also where the primary source of the evidence is from a person who lacks capacity.  It could have been a very helpful precedent. I don’t think any lawyer could safely hand this up to a Judge and invite them to draw any conclusions, because there are just too many gaps.

 

I’m not meaning to single this particular Judge out for a hard time – I think it is more broadly indicative that in amongst the many pressures on Judge time, perhaps checking transcripts of judgments comes lower down on the list of priorities that the President’s guidance really made allowances for.

The lady who wanted to sparkle – follow up

 

You have probably heard that C, the lady I wrote about on Wednesday, where a Judge had decided that she had capacity to make her own decision to refuse treatment, that decision being in keeping with her unusual approach to life rather than being a sign that she lacked capacity to make the rational decision that almost all of us would have made, died this week.

 

The Press made an application to be able to name her.  That’s a very tricky one.  On the one hand there is transparency and this case has certainly attracted a lot of media interest (and frankly given the biographical details in the story, I’m sure that the Daily Mail with their resources can find out who C was in about 30 minutes of investigation).  I don’t think this is prurient, I think there is some genuine public interest in the story and the issues, and of course a piece in a paper works far better when it is a real person not the letter C.

On the other, this case threw up very personal details in order to uphold C’s right enshrined in the Mental Capacity Act 2005 that everyone is assumed to have capacity unless proved otherwise and thus to refuse treatment unless proved they lack capacity – C did not bring the case to Court, she was brought into Court by the Trust and she won the case. So why should she be named when she did nothing whatsoever wrong in law? There are also the children to think of, one of whom is 15.

 

The final decision is not made yet, but an interim Reporting Restriction Order was made, preventing publication of the name until the matter can be properly litigated.

 

http://www.bailii.org/ew/cases/EWCOP/2015/83.html

 

I read in the week, sadly with bad timing on the day that I learned that C had died, the article in the Guardian by Zoe Williams. That article attacked the Judge and linked his decision with other very controversial outbursts by Judges – arguing that the Judge’s setting out of the history showed an inherent sexism.  I felt that the article was ill-concieved and had missed all of the real substance of the case.  I normally rate Zoe as a writer, so the tone of the piece, particularly the attack on C’s children surprised me.

http://www.theguardian.com/commentisfree/2015/dec/02/slur-woman-who-lost-sparkle-c-right-to-die-judgment-femininity-marriage

 

I then saw the piece by Lucy Series from The Small Places blog, that made me look at it in another way. I think this is the best piece of writing on C’s case and the issues that it throws up of ‘who are judgments written for in a transparency climate?’  and ‘should they be written in the same way as they used to be’?

 

https://thesmallplaces.wordpress.com/2015/12/04/the-stories-we-tell/

I wish I could write like Lucy does. I dash stuff off the way that Kerouac wrote “On the Road”  – typing furiously, getting all of my thoughts on the page  – Kerouac wrote so fast that he taped paper into one giant sheet to save him the distraction of having to stop and put a fresh sheet into the Hermes  (and I’m reminded that Truman Capote famously said of his method “That’s not writing, that’s typing”).  Lucy is much more the Truman Capote style of constructing the piece, making the words all do their share of the work, not having a sentence in that doesn’t say something important and say it in just the right way, and it being more like inspecting a gorgeous diamond from a variety of angles rather than listening to someone excitedly blurt out what’s on their mind.   Hopefully, there’s a place for both Kerouac and Capote in legal blogging.

 

Couple “too old” to look after their granddaughter

I saw this case break in the Telegraph  http://www.telegraph.co.uk/news/uknews/law-and-order/11754837/Couple-told-they-are-too-old-to-look-after-their-granddaughter.html   where the line was that grandparents who were able, willing and capable of looking after their grand-daughter were turned down on the basis of their age and the child would be adopted.

 

That immediately didn’t sound right. It had the immediate ring of “I think that you’ll find its a little bit more complicated than that”.   [If you do find yourself being outraged and appalled by a case and you haven’t actually read the judgment, that’s usually a safe answer.  Of course, there are cases where reading the judgment actually does appall you at the scandal that’s gone on, but at least you are now being appalled on an informed basis]

 

That would fall extremely short of the legal tests involved, and you can see from the Telegraph article that they do include the comment from the Social Services department involved, who said flatly that age was not the deciding factor in the case.

 

The judgment is now available and people can see it for themselves

 

Re C 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B99.html

 

You can see that the grandparents made an application to Court, to challenge the assessment done of them that did not recommend that they could care for the child. The Court heard from them, including hearing evidence from the grandfather (who sounds like a thoroughly nice man, to be honest).  The Court then applied the statutory tests and the case law guidance to whether they should have that application granted and whether the child could live with them, or whether adoption was the right way forward.

 

Additionally, you can see that whilst the Judge does mention the age of the grandparents, it is mentioned in passing rather than being the reason for the decision.

 

The reason for the decision, very simply, was that the mother had considerable mental health difficulties, including cutting herself in front of the child, that the mother had a very difficult relationship with the grandparents and that they were not going to be able to shield the child from these things.

 

The main concern however it seems to me is the fact that this family would be in my judgment completely unable to cope with the triangular relationship of C, M and the grandparents. Mr G expressed in evidence that he hoped that his daughter was going to recover her mental health, that she had had some recent treatment that over the next four years might lead to her mental health recovering. I very much hope that that is the case and it may well be right, but he was very clear that he was going to continue his relationship with his daughter and indeed he is to be commended for that. He said he saw her yesterday. I just cannot envisage how the triangular relationship can possibly work. Dr Martinez in her report expresses the concern that mother is unable to bring up C because she is likely to expose C to extreme behaviours – ‘scary situations’ is the word she uses – and she is referring to the incident in January when M in front of C self-harmed, cutting herself, and C was clearly in a scary situation witnessing her mother bleeding. That is exactly the type of situation which Dr Martinez envisages recurring and which puts C at the risk of significant harm if she were to be placed with her mother. If I were to envisage C being placed with her grandparents it seems to me that it is only a matter of time before C is put in that situation again. This is because of the conflict which the grandparents will experience in their meetings with their daughter, who they will not be able to turn away and in the conflict that is likely ultimately to create and which C is inevitably going to experience. Their personal circumstances are not ideal but ultimately it is that relationship which it seems to me makes it impossible for their application to succeed. Given the disruption to the local authority Care Plan against the likelihood of success of their application, I am afraid that I have no hesitation in saying that that application should therefore be dismissed.

 

Now, you may agree or disagree that this is a valid reason for saying no to these grandparents; but it certainly isn’t a decision that was made because of their age.

I don’t fault the grandparents at all for this – Courts can be confusing and scary places, and Judges use language and concepts that aren’t commonplace for ordinary people. Add to that, that of course this was an emotionally charged hearing and it is little surprise that the grandparents left not completely understanding all the reasons why the Judge said no to them, and that they got the wrong end of the stick.

Nor do I blame the journalist  – if the judgment had borne out what the grandparents said, that a Court had ordered that the child be adopted purely because the grandparents were too old, that would be a miscarriage of justice and a scandal worth reporting.  Of course, the journalist did have the clear rebuttal from Social Services that the case wasn’t about age, but also they had the comments from the solicitor engaged to represent these grandparents in an appeal  (which I doubt has any legs at all).  So it is not the flaw we often see in the Telegraph of the story having a single source – the journalist here did try to get multiple sources and to stand the story up.

You could make a criticism that the journalist didn’t try to get the judgment from the Court or wait for it on Bailii, but I think that’s to confuse the worlds of law and journalism.  Firstly, news stories are time sensitive. If the Telegraph waited for it to be published, they could have missed the scoop element that they had. And secondly, given that most lawyers can’t get an answer out of the Court service, what makes you think a journalist enquiring about “there’s been this case, I don’t have the case number, but can I have an anonymised copy of the judgment” is going to get any better response.

So I think it was okay for the Telegraph to run the story.  The problem, however, is that the Telegraph’s version of the story – that social workers and Courts rule people out just based on age, is the one that fluorishes and replicates and spreads, and the actual truth that the reasons for the decision were based on a Judge’s assessment of their ability to keep the child safe from mother, won’t get out there.

It is really important in care proceedings that family members who are able to help out, support the parents and ultimately offer a home if the parents can’t do it, come forward and aren’t put off. So, the story here spreads a myth that simply isn’t true.

I do appreciate that newspapers don’t exist solely as a vehicle to communicate the truth. They have to sell copies, they have to get clicks on their articles, they have to exist as a commercial venture. If they print articles that are factually accurate but that nobody wants to read, then the advertisers who want to sell their conservatories, plates with Princess Diana on them,  safes disguised as baked-bean tins, and mustard coloured polyester slacks*, won’t be placing those adverts.

I can’t actually work out a sexy way for the Telegraph and other news outlets to tell this story and correct the myth.  The best I can do is “Family Courts do still screw up from time to time, but they didn’t on this occasion. Sorry”   – and even I probably wouldn’t read that article.

[* Other products are, I’m sure, advertised in the Telegraph , and that’s just the sort of flippant generalisation and stereotyping that I would criticise them for when writing about social workers wearing corduroy trousers and knitting their own muesli.  It was just a cheap gag…   – now,  if you want to find “cheap gags” in the advertising section of a publication you are looking for something in the newsagents on an entirely different shelf to the Telegraph]

Minnock judgments (part 2) and a different judicial approach

Well, firstly, I’m pleased that the child has been found. And I’m not going to speculate about the future outcome of the case.

 

But I thought that people who have been interested might like to see the next four judgments.

https://www.judiciary.gov.uk/judgments/roger-williams-v-rebecca-minnock-and-ethan-freeman-williams-2-judgments/

 

They are the bottom four (beginning 12th June)

The 12th June judgment is unusual, in that it doesn’t read as a case where the Judge was being asked to decide an issue or make an order. Rather, he is helpfully setting out for those involved that if there is a commital application (where a person might get sent to prison) they are entitled to free legal advice and representation and what the magic words are. He then goes on, largely for the benefit of the Press and public to set out how the Courts make decisions about where a child lives, what factors come into account, the representation that the parents have had, and what factors the Court would take account of in the future, stressing that what the Court wants is to make sure that the child has a proper relationship with both parents. It is almost a judicial press release.  I’ve not seen that happen before, but I think in a case with so much media attention and public interest, it is actually a really sensible thing to have done and I hope that future Judges consider it.  If you wanted to understand what the legal background was to the case, it is all there.

The next judgment is describing that the child is safely returned, and explaining that the mother’s plan in the case was to use the Press to gain sympathy for her cause and to thwart the decision of the Court.  People may have their own view as to whether she was justified or not, but if you have a strong view, I’d recommend that you read that judgment to see if it remains the same. The really remarkable thing about this judgment is that at the end, the Judge allowed members of the Press to ask him questions directly and answered them.

I’ve never seen that happen in a family case before, but it seems to me a remarkably sensible approach. It must surely result in more responsible, balanced and nuanced reporting that the Press had the chance to ask questions directly of the Judge.  I applaud it.

The third (private hearing 15th June) sets out that the future decisions in the case need to be made without public spotlight, although a judgment will be published after the case is over, and allowing father to provide a short statement to the press.

 

And the fourth (and so far final) is a purge of contempt (by the partner of the maternal grandmother) for his part in the press campaign and more importantly in lying about the child’s whereabouts. For non-lawyers a purge of contempt is where a person who has been sent to prison for breaking court orders goes before the same Judge to express remorse and regret and ask for his sentence to be reduced or ended. In this case, the man was released from custody.

 

The Judge did ask, in his judgments, for the Press to refrain from speculation about where the child might live and whether mum would get to see him again and how that would work, and I’d therefore ask people to do the same in comments.

But what do people think about the Judge’s approach to openness in the case ? Very fast publication of the judgments, allowing the Press to come in, delivering a judgment that explained all of the balancing factors and principles, and allowing the Press to ask him questions? I think it is all very new, and the law is generally terrified of innovation, but we may come back to look on this case as a watershed in the family Courts not merely paying lip-service to the idea of transparency but really engaging in the process of explaining to the Press and public what is happening.  And balancing that with keeping really private things private.

 

Was an autobiography harmful to a child?

 

The Supreme Court have given their decision in James Rhodes v OPO 2015

https://www.supremecourt.uk/cases/docs/uksc-2014-0251-judgment.pdf

 

This was a case in which James Rhodes, a concert pianist, author, and film-maker, wrote an autobiographical account of his life,  and where the mother of their child sought an injunction to prevent its publication. The Court of Appeal granted that injunction, based on an 1897 case called Wilkinson v  Downton. That case established a cause of action which was “intentionally causing physical or psychological harm”

Mr Rhodes took that case to the Supreme Court, and triumphed.

 

The Supreme Court posed the central question in this way:-

 

What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?

 

When you read snippets from the book contained in the judgment, those snippets pull no punches. It describes the dreadful sexual abuse that the author sustained as a child, the harrowing impact that it had on him, the consequences throughout his life and how for the author, music provided an escape from that. The descriptions are brutal and shocking – but of course, so is what happened to this man as a child. The words hurt, but nothing like how the experience must have hurt.

One can also see that the mother of a young boy (who has Aspergers’ Syndrome, amongst other difficulties) would be worried about the boy coming across these accounts.  They are graphic accounts – they are so by intent – the author is wanting to convey just how monstrous what happened to him was, to reach out to other victims or potential victims, and possibly to reduce the chances of what happened to him happening to others. They are not easy to read – even for me – and I work within a field where I see accounts of abuse against children almost every week and would be expected to be somewhat more de-sensitised to it than the average adult. What James Rhodes has written is powerful and hard to read.  I commend him for it.

 

[This isn’t a terribly neutral summary, I am glad that he won this case – but nor do I think that the mother was a bad person for bringing the claim – I see entirely why she would not want her son to read this material whilst he is a child, and that in the modern era it is not as simple as just not having a copy in his home to read – the internet will have passages from it, indeed the judgment does, and other children who the son knows may come across it and make use of it]

 

As a matter of law then, what does the Supreme Court have to say about this tort?

Let’s look at the history first – as ever with old caselaw, the facts are quirky, and I’m sure that nobody involved ever imagined they’d be making legal history and newspaper headlines 120 years later.

 

Mr Wilkinson had been out at the races (I think that I can say without fear of defamation 120 years later that some degree of liquid refreshment may have played a part in the day’s events) and his friend Mr Downton decided that it would be an amusing practical joke to tell Mrs Wilkinson that Mr W had had an accident at the races, broken his leg and needed help.  Mrs W took it very badly and had weeks of nervous shock.

 

Wilkinson v Downton

31. Mr Downton secured a place for himself in legal history by a misconceived practical joke. He thought that it would be a cause of harmless amusement among the clientele of the Albion public house in Limehouse to tell the landlord’s wife, Mrs Wilkinson, a false tale that her husband had fractured his legs in an accident while on his way back from a race meeting and that he had sent a message to ask for her help to get him home. It cost her 1 shilling and 10 ½ pence to send her son and another helper on this fools’ errand, but a matter of far greater concern was the effect on her health. She suffered severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering. Mrs Wilkinson had not shown any previous sign of predisposition to nervous shock. She and her husband sued Mr Downton, and the matter came to trial before Wright J and a jury.

32. Recovery of the transport costs incurred in response to Mr Wilkinson’s supposed request for help presented no legal difficulty. Such costs were recoverable as damages for deceit. The jury assessed damages for the illness caused to Mrs Wilkinson by her nervous shock (together with her husband’s claim for the resulting loss of her services) at £100, but the legal basis for making such an award was problematic.

33. Wright J rejected the argument that damages for deceit could include an award for Mrs Wilkinson’s suffering, because the essence of liability for deceit was that a maker of a false representation, intended to be acted upon, was liable to make good any loss naturally resulting from the representee acting on it, but the illness suffered by Mrs Wilkinson was not a consequence of her acting on what she was told. It was simply a consequence of the shock brought about by the news reported to her.

34. Wright J held, at pp 58-59, that a cause of action could be stated in law where a defendant has

“wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.”

He continued

“That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”

35. This compact statement of law contained a number of key features. First, he identified the plaintiff’s protected interest as her “legal right to personal safety”. Secondly, he identified the defendant’s act as wilful. Thirdly, he described the act as “calculated” to cause physical harm to the plaintiff. Fourthly, he noted the absence of any alleged justification. Fifthly, he characterised the “wilful injuria” as “in law malicious” despite the absence of any purpose (ie desire) to cause the harm which was caused. Having stated the law in that way, Wright J then considered whether it covered Mrs Wilkinson’s claim. He held that it did. He said:

“One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed …”

 

The discussion of the Supreme Court into this tort and partic ularly on the key ingredient ‘maliciously’ is wide-ranging –  covering level-crossings, horses ram-raiding into pubs, pretending to unmask someone as a German spy, and imputations of inchastity.  I was saddened that the promising case name of Mayor of Bradford v Pickles 1895 did not hinge on a gherkhin-related dispute, but rather on water supply…

Of course, you will note that in Wilkinson v Downton, the story that caused the harm was false, made up, whereas the story being told by Mr Rhodes is true. We shall see if that makes a noticeable difference.

72. The order made by the Court of Appeal was novel in two respects. The material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it. The appeal therefore raises important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton.

73. In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements: a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness. In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is.

 

When writing a book, the author is not obliged to consider that any reader of the book might be caused damage by reading it – that would make it almost impossible to write anything. The Court of Appeal had held that it was applicable in this case to consider that in writing the book, the child was a relevant person to take account of – i.e that he was a specific person who could be said to be affected by it.

 

74. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant. We are concerned in this case with the curtailment of freedom of speech, which gives rise to its own particular considerations. We agree with the approach of the Court of Appeal in regarding the tort as confined to those towards whom the relevant words or conduct were directed, but they may be a group. A person who shouts “fire” in a cinema, when there is no fire, is addressing himself to the audience. In the present case the Court of Appeal treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis-à-vis him. In this respect we consider that they erred.

 

 

 

75. The book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation. In point of fact, the father’s case is that although the book is dedicated to the claimant, he would not expect him to see it until he is much older. Arden LJ said that the father could not be heard to say that he did not intend the book to reach the child, since it was dedicated to him and some parts of it are addressed to him. We have only found one passage addressed to him, which is in the acknowledgments, but more fundamentally we do not understand why the appellant may not be heard to say that the book is not intended for his eyes at this stage of his life. Arden LJ also held that there could be no justification for the publication if it was likely to cause psychiatric harm to him. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.

76. When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest. But in pointing out the general interest attaching to this publication, we do not mean to suggest that there needs to be some identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton.

 

As the Supreme Court point out here – Mr Rhodes case triumphs on the wider public interest of telling his story, but that does not mean that the story HAS to have that wider public interest to defeat a Wilkinson v Downton claim.

Where a story is true, they say, the law gives the freedom of someone to tell the truth a great deal of protection.

 

77. Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example,Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention. The question whether (and, if so, in what circumstances) liability under Wilkinson v Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in this case.

 

It MIGHT be that a set of circumstances exist in which words in a publication are true, and not threatening, but are abusive and would cause harm to the recipient, but it is quite difficult to think of what those circumstances might be. It may be some time before we see another Wilkinson v Downton claim.

 

Finally, the Supreme Court looked at the mental element of the tort (the intent)

 

83. First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office.

 

They concluded that option b was correct, and declined to develop the law to include ‘recklessness’ within the mental element of the offence.

89. In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.

 

Also hooray for Lord Neuberger’s remarks on free speech.

96. It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” – see Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20, per Sedley LJ. As he memorably added, “[f]reedom only to speak inoffensively is not worth having”.

97. Quite apart from this, it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it).

 

 

An argument about publication of a judgment

 

Wigan Borough Council v Fisher and Others 2015

Again, Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/34.html

I think this is the first reported authority on how to deal with transparency and publication of a judgment where one party objects, following the President’s transparency guidelines. The first and most important thing to say is that the High Court held this:-The question of whether a judgment should be published is an integral part of the proceedings from which it arises and I consider that where a party is legally aided, any work that is necessary to contribute to the court’s decision on publication should normally be covered by the party’s legal aid certificate.There were care proceedings about a little girl named A, who was in foster care but eventually went back to live with her mother. The central theme of those proceedings was the very tragic death of A’s sister Evie.

  • The proceedings arose because of the death of A’s sister Evie at the age of sixteen weeks on 21 February 2013. During her short life, she had sustained a number of serious injuries.
  • My fact-finding judgment was given on 6 December 2013 at the end of a hearing lasting eight days, during which each parent blamed the other for Evie’s injuries. My conclusion was that they had been caused by the father and that the mother should be exonerated. There was no appeal and the proceedings ended.
  • Mr Thomas was then prosecuted for causing grievous bodily harm to Evie. On 29 October 2014, he was acquitted by a jury at Liverpool Crown Court. The trial was reported in the press.
  • On the day of his acquittal, Mr Thomas gave an interview to a journalist in which he said “All I ever wanted to do … was to prove my innocence and now I have done that.” This interview, illustrated with a photograph of Mr Thomas holding a photograph of Evie, was published in the Wigan Observer and in the Daily Mail.
  • On 9 December 2014, a Coroner’s inquest reached an open conclusion, formerly known as an open verdict

 

The issue of whether the fact-finding judgment should be published was therefore an important and live one. Firstly, the name and face of the father was known to the media, as was Evie. Secondly, there was public interest in what had happened to Evie. Thirdly, the combination of the care proceedings (which remained confidential), a criminal trial (which was in the newspapers) and an inquest (which had been reported) might lead people to erroneously conclude that if the father had not hurt Evie then mother must have done.  Equally, however, father who had put himself in the public domain after having been found Not Guilty in a jury trial would obviously not want a finding of fact judgment which held that he was responsible for Evie’s death coming into the public domain.

 

  • To avoid the risk of prejudice to the criminal proceedings, I had deferred a decision on the publication of the fact-finding judgment. In November 2014, when those proceedings had ended, the parties referred the matter back to me. They initially suggested that an anonymised version of the judgment could be published, edited in such a way as to protect A’s identity.
  • I did not consider that this was realistic. The criminal trial and the Coroner’s inquest had taken place in public and substantial information about the family and the surrounding events had appeared in the press. This information was to all intents and purposes the same as that considered in greater detail in the family proceedings, except that this court’s conclusions were not reported. It would therefore be impossible for an anonymised fact-finding judgment to be published without it immediately being linked with this family. I therefore asked the parties for further written submissions by 13 January on the following possibilities:

 

(a) That the judgment should not be published at all.(b) That it should be published in an un-anonymised form.

(c)  That it should be published in an un-anonymised form, accompanied by a reporting restriction order preventing the identification of A (in which case an application would have to be made and the media notified in accordance with the Practice Direction).

(d) That it should be published in an anonymised form with workable accompanying directions that could be understood by the media. 

 

The Judge discussed the transparency guidance and the purpose of it

 

  • A salient purpose of the guidance is to promote understanding of and confidence in the proceedings of the Family Court. But beneficial though that goal is, it is not an end in itself. Rather, it is part of a necessary process to ensure that the rights of individuals and the public, referred to above, are properly balanced. That cannot happen if confidentiality in the proceedings of the Family Court, a public body, is allowed to trump all other considerations. A balance has to be struck in each case, using the guidance as a valuable aid. There will still be cases where, notwithstanding the guidance, publication is not permitted, and other cases where the judge will authorise wider publication than that contemplated by the guidance.
  • The guidance has had a marked effect. In 2014, its first year, over 300 judgments at High Court level were posted on the Bailii website, together with 160 judgments by other judges. These numbers are a very substantial increase on previous levels of publication, particularly in relation to judgments in local family courts. As a result, there is a very considerable body of material available to anyone who wants to better understand the way in which our proceedings are conducted.

 

 

I will set out the parties respective positions – the LA wanted the judgment to be published, as did mother. The father opposed publication. The Guardian supported publication but sought safeguards.

 

  • The local authority supports the publication of the judgment in an un-anonymised form, except that the surviving children A and B should not be named. It submits that there is good reason to publish the judgment and no compelling reason to the contrary:
  • The fact that an infant has been seriously injured and has died in unusual circumstances is shocking and rightly becomes a matter of public concern. Questions are asked – Why? Who? How? Could the death have been prevented? If so, is someone to blame?
  • The mass of publicly available information is noted. It includes Evie’s name, details of her injuries and death, the names of both parents, their locations, ages and photographs. Any privacy and confidentiality has long since been breached. The only remaining confidentiality attaches to A, who has not been publicly identified.
  • Conclusions have now been reached in the criminal court, the Coroner’s court and the Family Court about the events surrounding Evie’s death. The outcome of two of the three is now known, but not the third.
  • Neither A nor her mother are likely to be unduly affected or destabilised by further publicity.
  • Knowledge that the mother has been exonerated could assist her and A.
  • A’s identity is not likely to become more widely known. There is no evidence that the press has done other than respect her privacy, and a reporting restriction order is not necessary.
  • Publication would show the rigour with which the Family Court investigates the death of and injuries to a child and how it arrives at its conclusions.
  • Where, as here, there is criticism to be made of professionals, it is in the public interest to know of this in the hope that lessons will be learned.
  • Anonymisation of the judgment would be utterly pointless, except insofar as the surviving children’s names are concerned. It would lead to confusion and questions as to why the Family Court was seeking to withhold information that is already public knowledge.
  • The mother supports publication of the judgment and does not seek any other protection beyond that suggested by the local authority, namely the withholding of the children’s names. She contends that there is a clear public interest in publication for these reasons:
  • The information already in the public domain is very extensive, as demonstrated by a collection of press clippings from the Internet.
  • She has been placed in a difficult position by the father’s acquittal and the publicity he subsequently sought. Given that Evie was undoubtedly assaulted, the result has been to cast suspicion on her. She has been approached by the media to tell her side of the story, but has refused. Following the Coroner’s proceedings, the Daily Mail report posed the question in the title to its coverage: “Father with battered baby daughter’s handprint tattooed over his heart was cleared of beating her. So how did Evie die?” The article goes on to state that the father sought to blame the mother during his criminal trial.
  • The Family Court proceedings are the missing piece from a jigsaw of information. The other processes have been reported. The mother feels strongly that somewhere within the public domain there should be an accurate report of what happened to Evie. In time it will be of value to A that the truth is known. She also feels that the publication of the judgment would help to bring matters to a close for the family.
  • The father opposes publication, for these reasons:
  • The guidance states that the names of family members will not normally be used. The metaphorical opening of the doors to the Family Court is aimed at exposing the family justice system, not the families who pass through it, to the light of publicity.
  • Identification of the perpetrators of crime is the purpose of the criminal courts, not the Family Court.
  • The reasons for care proceedings to be conducted in private continue to be sound. The care with which the courts protect the rights to privacy, even of those who are found guilty in the criminal courts, is shown in a number of authorities, to which detailed reference is made. A careful balancing exercise must always be conducted.
  • Any attempt to publish the judgment in an anonymous form is doomed to fail, as the family would inevitably be identified. Since an anonymised judgment cannot be published, there should be no publication at all.
  • Identification of the family would breach its right to respect for private and family life and would be fundamentally wrong. Naming the father would be an unwarranted interference with his rights. Publication may destabilise A’s placement with her mother.
  • Just because the father involved himself in media coverage is not a reason to stir matters up again. Republication can be as harmful as publication.
  • There is no wider public interest, such as may exist in cases of failures by statutory agencies.
  • The Children’s Guardian does not argue that there are compelling reasons for publication not to occur. She notes that
  • There has already been a great deal of publicity but that A has not been named, though reference has been made to “another child”.
  • Her primary concern is that the mother and A may be exposed to unwelcome scrutiny and distress as a result of publication that reveals the disparity between the outcomes in the criminal and the family proceedings.
  • She supports as many safeguards as possible being implemented to reduce interest in this matter. She would oppose publication that identifies A or further identifies Ms Fisher, or refers to the inherited condition Treacher Collins syndrome. Any reference to the Wigan area and the local authority should be removed , and the names of solicitors deleted.

 

Note that the Local Authority was in favour of publication even though professionals were criticised in the judgment.

 

The Judge decided that the judgment would be published, and will appear in 28 days (thus allowing the parties time to prepare themselves, and for any appeal).  I think that it must be right that where a father has gone to the Press and insinuated that mother was responsible for the death of a child, that the judgment showing why she was fully exonerated from blame ought to be out there. I suspect it won’t get the same exposure in the Mail as the previous story, I hope to be proven wrong.

 

Determination

 

  • Having given due consideration to all of these matters, I am in no doubt that the fact-finding judgment should be published and that the only restriction that is necessary is that the actual names of the children referred to as A and B (another child associated with the family) are not to be revealed. The rubric attached to the judgment is sufficient to achieve this restriction. There is no need for a reporting restriction order. The media can be relied upon not to identify young children gratuitously in circumstances of this kind.
  • I find that the relevant considerations point very much in the same direction.
  • The first consideration is that it is generally in the public interest for accurate information to be made available in such a serious case. The need is particularly pressing when the information now in the public domain is incomplete and distorted.
  • The second consideration is that the mother supports publication and it is only fair that she should be able to rely on the judgment to show that she was not responsible for Evie’s injuries. Non-publication would be an injustice to her.
  • The third consideration is that publication is unlikely to destabilise A and her mother. On the contrary, it is likely to improve their situation in the long run. It is clearly in A’s interests to grow up on a true footing, knowing that her mother was not responsible for her sister’s death and that her relationship with her father is as it is because of what he did. Any short-term disturbance that might possibly arise from publicity is greatly outweighed by the long-term benefits of the truth being known.
  • The final consideration is that the rights of the father carry little weight in the overall balancing exercise, given his conduct and his attempts to misrepresent the position to the mother’s detriment. If his submissions were correct, the law would be a screen to hide the truth. There is instead a public interest in the findings about the father being made known. The fact that they have been reached according to the civil standard in the Family Court as opposed to the criminal standard in the Crown Court makes no difference in this case. to prevent the truth being seen.
  • These conclusions are, as it happens, in keeping with the guidance. Paragraphs 16 (public interest) and 17 (serious fact-finding) are both engaged. Insofar as the naming of the family members departs from the normal approach, this is warranted under both limbs of paragraph 9 (party’s wish to refer to exoneration and public interest in identification of a person against who findings have been made).
  • I agree with the local authority that it would be futile to seek to remove identifying information in an effort to dissociate the Family Court’s conclusions from information already on the public record. The court should not stultify itself and any attempt to publish anonymously could only lead to bewilderment about what could and could not be reported. The Guardian’s submissions were made before the mother’s position was known, but were they to remain unchanged, I would prefer the positions of the local authority and the mother.
  • I do not agree with the father’s analysis of the purpose of the guidance. As I have explained, it is not narrowly concerned with the image of the Family Court but with the wider goal of achieving a proper balancing of all the rights that arise in these cases.
  • The fact-finding judgment, and this judgment, will be placed on the Bailii website 28 days from now, to allow time for all interested parties to prepare themselves and for any rights of appeal to be exercised.

 

 

Poppi Worthington

 

There has been a lot of media interest and frustration about the death of Poppi Worthington.  She died in December 2012 and was just thirteen months old. A finding of fact hearing took place in care proceedings and judgment was given on that in March 2014.  Despite media interest and applications, the contents of that judgment are still not known other than to those directly involved in the case.

A reporting restriction order remains in place, that prevents the contents of that hearing being shared in the media or published. [As ever with reporting restriction orders, they apply to me and to my commentators, so if the information is leaked elsewhere on the net, please do not link to it]

We do know that an inquest took place, with an open verdict and the Coroner releasing Poppi’s name into the real world and was recorded as describing her death as ‘unusual and strange’

The Press were interested in the suggestions that either the finding of fact hearing in the care proceedings might be a miscarriage of justice (based on the Coroner’s verdict being open, rather than concluding that Poppi was unlawfully killed)  OR that the finding of fact hearing was critical of the Local Authority and social workers and that this was being hushed up.

[See for example, the Daily Mail piece here http://www.dailymail.co.uk/news/article-2810262/How-council-tried-baby-s-death-secret-protect-social-workers.html   ]

Either of those things are possible, it is really hard to prove or disprove them until we see the judgment itself.

For a long time, the decision to hold back the contents of the judgment despite media interest, was on the basis that there might be a pending criminal trial.

The police decided on 16th March 2015 not to charge the father with any criminal offences. The Press obviously thought that this would mean that the judgment would be released and they could tell Poppi’s story.

However, as a result of enquiries that had been made in the police investigation, including fresh medical experts, the father considered that there was scope to challenge the decision of the fact finding hearing and the decision to make Care Orders on Poppi’s siblings.  [I don’t think it is rocket science to infer that the final outcome of the finding of fact hearing was that father had done something to Poppi that led to her death, which he disputes]

 

The issues then for Mr Justice Peter Jackson to resolve were :

1. Should this be an application to the Court of Appeal on fresh evidence OR an application for re-hearing made to the High Court who had originally heard the case?

2. If the latter, should the application for re-hearing be granted?

3. Should the original judgment be published prior to the conclusion of that appeal/re-hearing?

And that is what he dealt with in the case of Cumbria County Council v M and F (Application for rehearing) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/35.html

 

 

  1. At the original hearing, the main medical evidence came from three pathologists. Dr Alison Armour, Dr Stephanie Bitetti and Dr Stephen Leadbeatter and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
  2. As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
  3. In their submissions, the parties have analysed the extent to which the more recent pathology evidence differs from that which was given that the original hearing, with reference to five particular post-mortem appearances.
  4. On behalf of the father and the Guardian, it is argued that the additional medical evidence raises issues of sufficient importance to warrant a rehearing. On behalf of the local authority and the mother, it is said that the issues are ones of nuance and interpretation that do not amount to a reason for reopening the matter. It is also said that the process by which the new evidence was gathered may have had shortcomings.
  5. In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it. Arguments about any consequences arising from the process by which the further opinions were obtained cannot be resolved without significant further inquiry, and a decision on the father’s application should not in my view be postponed for that to occur.
  6. The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
  7. There are two ways in which an application for a further hearing can be made. The first is by way of an application to appeal out of time on the basis of fresh evidence. The second is by way of an application to the trial court for a rehearing. In this case, the latter course has been selected. It is argued on behalf of the mother that the former course would have been better. However, it is acknowledged that the appeal route would be likely to lengthen the overall process in circumstances where the earliest resolution is in the interests of the children. In the overall circumstances, and bearing in mind that this court has had an ongoing involvement since the conclusion of the care proceedings because of issues of publicity, I find that the father’s application is appropriately made here.

 

So, in these circumstances, an application for re-hearing was better than an application to appeal. What about the merits of the application itself?

  1. His choice of venue will have been influenced by the way in which the tests that apply in each court have been articulated. An application to appeal out of time engages the well-known test in Ladd v Marshall 1954 1 WLR 1489. The new evidence must be such that it would probably have an important influence on the result of the case, though it need not be decisive, and it must be apparently credible, though it need not be incontrovertible. An application to the first instance court for a rehearing engages the guidance contained in paragraph 33 of the decision of the President in Re ZZ (Children) 2014 EWFC 9 where he endorsed the words of Mrs Justice Hale in an earlier decision: “Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions on the same evidence … The court will want to know … whether there is any new evidence or information casting doubt on the accuracy of the original findings.” To this, the President added that “one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my own part I would be disinclined to set the test any higher.”
  2. There may be cases in which the formulations of the tests on appeal and at first instance might make a difference to the outcome, but I do not consider that this is one of them. The court’s overriding objective is to deal with cases justly, having regard to welfare issues involved, and that is my goal.
  3. The considerations that persuade me that justice requires that a further hearing should take place are these:

    (i) The finding of fact addressed in the more recent evidence is of central importance for the family. It is of a kind that determines the children’s future and is of great significance to the parents.(ii) It will be important for the children to have an accurate understanding of what happened to their sister. The more recent evidence has the effect of raising doubt about the existing conclusion. The children’s welfare requires that the matter is resolved.

    (iii) The more recent evidence, like the previous medical evidence, comes from a reputable source; further, it was commissioned in response to concerns expressed by this court about the earlier police enquiry.

    (iv) While the outcome of a further hearing cannot be foreseen, it is possible that a review of the overall medical evidence may lead to a different conclusion. It may, or it may not. What can be said is that there is a serious issue to determine in the light of the further opinions.

  4. As to the scope of the further hearing, oral evidence is likely to be limited to medical testimony. I am unlikely to admit other oral evidence, unless a particular matter needs clarification. Transcripts and notes of evidence from the earlier proceedings will be gathered. A meeting of the doctors should be held in order to establish points of agreement and disagreement. The parties will present a draft directions order, having made further enquiries.
  5. At an earlier stage, the father submitted that any rehearing should take place before a different judge. That submission was not in the end pursued, in my view correctly. There are considerable advantages in judicial continuity in a case of this complexity.
  6. The outcome is that the further hearing will take place in the autumn.

 

So there will be a re-hearing in the autumn. But we are not yet into May – what happens between now and then?

 

As to the publication of the original judgment, I remain on view that this is not appropriate at this point in time, for the reasons given on 30 March. However, I have expressed a provisional view that it should be published at or around the time that the rehearing begins, rather than it being withheld until that hearing ends. There is a proper public interest in the course that these proceedings, and the other procedures surrounding Poppi’s death, have taken. The media will be able to describe matters more effectively if the original findings can be described at the point when they come under review. I have also raised the possibility of the further hearing taking place in public. I will hear from the parties and the media about these issues at the next directions hearing.

 

So the judgment will not be published until the autumn. It MIGHT be published before the re-hearing finishes, and even possibly at around the time that it begins.

The reference to the judgment on 30th March is this one – which was considering the position given that the police had dropped their case against father, but father was wanting to challenge the findings in the family Court.

From that judgment

http://www.bailii.org/ew/cases/EWHC/Fam/2015/918.html

 

  1. On the question of publication of the judgment, there is division between the parties:

    (i) The media, on whose behalf Ms Caoilfhionn Gallagher has presented written submissions, supplemented today by Mr Murphy, argues for publication. It says that the matter is of the highest public interest, both as to the circumstances of the death and as to any agency failures. There is a risk that an information vacuum will be filled with inaccurate speculation. Moreover, continued non-publication would be likely to reignite concerns about “secret courts” and lack of transparency in the family justice system.(ii) The local authority argues that the judgment should be published now that a charging decision has been taken. Even if the findings are reopened, there is a public interest in being informed about the process as it occurs.

    (iii) The mother supports publication, particularly as non-publication heightens speculation in an unhelpful way.

    (iv) The father opposes publication at this point. On his behalf, Mr Rowley QC argues that the evidence gathered during the father’s criminal investigation forms a credible basis for querying the court’s findings. He submits that it would be wrong, taking into account the father’s rights, to publish the judgment ahead of a decision about whether the findings will or will not be reviewed.

    (v) On behalf of the children, the Children’s Guardian opposes publication of the judgment at this time. The children, whose future plans remain at a sensitive stage, would have to face a heavy bout of publicity now with the possibility of further, conflicting publicity at a later stage.

  2. The Practice Guidance issued by the President of the Family Division on 16 January 2014 and entitled “Transparency in the Family Courts: Publication of Judgments” [2014] 1 FLR 733 advises that fact-finding judgments in serious cases should be published unless there are compelling reasons to the contrary. Quite apart from that guidance, this should in my view be the starting point in a case of this kind. The public interest that the media contends for is very significant indeed. As I have said elsewhere, I am aware of the value of the media being able to describe events in real time as they unfold. The risk of speculation replacing information is also a relevant consideration.
  3. I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now. The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned. It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed. To do so would be unfair to the father and contrary to the welfare of the children.
  4. I well understand the desire of the media to carry out its role as fully as possible, and the frustration that is felt at the course of events in this case, in particular where one obstacle to publication is removed only to be replaced by another. However, I am clear that a proper balancing of the rights of all concerned leads to the conclusion that the judgment cannot be published yet. In saying this, I repeat my intention that it shall be published when it can be.

 

Given the Daily Mail story linked to earlier, it is worth noting that at the hearing on 30th March, the Local Authority (i.e Social Services) were of the same view as the Press, that the original judgment should be released and published.  I can also see however, that if you were the father, hoping to get that decision overturned that you wouldn’t want the Press reporting all the details of how a Court found that you did something dreadful to your child BEFORE you get a chance to persuade the Court that they had got this wrong. I can also see that for the Guardian, representing the children, it would not be ideal to see in the papers terrible headlines about your father and your sibling, and then possibly to have a different version of events and fresh stories AFTER the re-hearing.  But also, I can see that this all feels very unsatisfactory – the Press have a story here which is a genuine public interest. Maybe there were failings from professionals from which others could learn, maybe not. Maybe a family has been broken up as a result of a mistake in the family courts, maybe not.  The Press legitimately want to report the story and they aren’t able to do so.

Not an easy situation.

I also note that there is to be a Serious Case Review (which is the internal investigation where a child dies and there might be lessons to be learned). Those generally have to be published, so I wonder if the report might be timed to come in after the autumn re-hearing; as otherwise the Press could legitimately report on the conclusions and substance of that report.

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