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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.

Reporting restriction orders and anonymisation

 

This Court of Protection case raised, and answered, an important question that was causing people doubts, in relation to Reporting Restriction Orders. It has broader implications than just Court of Protection cases.

A Healthcare NHS Trust and P 2015

http://www.bailii.org/ew/cases/EWCOP/2015/15.html

 

A Reporting Restriction Order is just as you might guess, an Order of the Court saying that the Press can’t report some details on a particular case.  When the Court decides whether to make one, it is balancing up the article 8 right to privacy of the people involved (particularly if they are vulnerable people who can’t consent for themselves) AGAINST the article 10 right to freedom of expression (the concept that the Press ought to be free to report stories of public interest, or that are just interesting to the public)

What you might not know, if you haven’t made an application of this type, is that when faced with a story that you don’t want the Press to run, the procedure to obtain an RRO is to contact the Press and tell them all that there’s a really juicy story that you don’t want them to run.

 

That is so that the argument about article 8 v article 10 can be run with the Press being present and represented.  It does mean that you need to think carefully about whether stamping out a small fire (a newspaper wanting to run a story) by applying for an RRO might mean you accidentally starting a forest fire (by shouting “Fire, fire” to the rest of the media)

 

It is also worth noting that the transparency guidelines are that any application for an RRO, whether granted or not, should have an anonymised judgment published  – so RROs in practice are really going to be about ensuring that the NAMES of the people involved do not become published.

So, when the Press are told about the application for an RRO, should the real NAMES of the people involved be used, or should they be anonymised?

  1. It is submitted by the Press Association that pre-notification anonymisation appears to becoming a practice amongst claimant lawyers, who appear to be under the erroneous misapprehension that not only would they be committing a contempt but that by identifying the parties to a claim to the media means that the media will or may publish the material before the Court has had the opportunity to consider and possibly prohibit publication. It also suggests that the assumption is being made that the applicant’s right to privacy under Article 8 of the ECHR outweighs the media and public’s rights under Article 10. That approach by lawyers representing applicants seeking reporting restrictions or injunctions in refusing to identify the parties involved in a case involves restricting the media’s rights even before the Court has had an opportunity to consider the matter. That, it is said, leaves the media unable to take advice or make sensible and informed decisions as to what approach, if any, to take in a particular case.
  2. When the Press Association raised the question of identification of the parties with the applicant’s solicitors in this case, the response apparently was that the solicitors would be committing a contempt of court by disclosing the information; the argument put forward today by Mr Sachdeva QC is altogether different.
  3. The short issue of course is whether there is an obligation subject to paragraph 15-17 of the Practice Direction 13A to disclose information.

 

If there is an obligation to provide the real names of those involved as part of the application process, then there’s no issue of contempt of Court in complying with that obligation. And this is the issue that the Court had to decide.

On the one hand, the argument is that giving out the real names might be a contempt of Court and might breach privacy and might pose a risk of the names accidentally leaking out. On the other, if you tell the Press that they aren’t allowed to write about person X, but you don’t tell them who person X is, how can they really know whether they might have already been approached by X about the story, or even whether they would want to run the story.

  1. The questions therefore seem to be as follows. On the one hand the arguments in favour of revealing the parties’ identity to the Press before such an order is made include Practice Direction 13A requiring that the application notice (COP 9) be served with the media notification. The COP 9 has the parties’ names on it as of course does the witness statement (COP24). It is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity despite no RRO being yet in place without being in contempt and the media will learn the parties’ names once the RRO is made in any event.
  2. Against the proposition is the assertion that the Practice Direction (which is a practice direction, not a Rule of Court) does not require the draft order to be served on the media (as noted by Baker J in Re M). However, he was considering the issue in relation to the identities of a considerable number of people who would be covered by the anonymity order. More directly than that it is simply unnecessary for the media to know the identity of P before forming an opinion on the terms of the RRO being sought, the issues being the centre of interest. Relevance is also placed on the absence of prohibitive order prior to hearing, a breach of which it is said is not clearly a breach of confidence or contempt of court.

Mr Justice Newton marshals the law and principles very well here, and it would be a good source for any RRO research in future cases.

To skip to the conclusion – the Judge was satisfied that the Press having the real names on the application form would not result in those names being published before the Court considered the RRO and that there were a number of safeguards to ensure that would be the case, even if there were to be one maverick or rogue player:-

  1. I am therefore completely satisfied that a number of factors come together preventing the media from revealing the parties’ names, because

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

    3. It would be in breach of the express contractual arrangements between any subscriber and the Press Association (with a powerful deterrent effect).

    4. It would be a breach of confidence.

  2. In the interests of transparency, the whole thrust of the law from the Practice Direction onwards dictates that in order to form a proper view the Press should see all the information including names. I therefore order the disclosure of the identity of P and the family to the Injunctions Alert Service so that the Press may respond if they wish to do so.

 

 

The statutory contempt of court bit is interesting, particularly in relation to publication of information whilst the proceedings have not been concluded.

  1. Section 1 of the Contempt of Court Act 1981 provides:

    “In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.”

    Section 2 of the Act sets out the scope of strict liability. The following must be established to the criminal standard:

    a) publication addressed to the public at large, as any sections of the public;

    b) publication which creates a substantial risk that the course of justice in the proceedings in question will be severely impeded or prejudiced;

    c) publication occurs at a time when the proceedings are active.

    So there is a double test, there has to be a risk that the proceedings in question will be affected at all and if affected, the effect will be serious.

  2. Anything that has a deleterious impact on the conduct or outcome of proceedings is prejudicial to the course of justice (I have had regard to the definitions in Arlidge, Eady and Smith on Contempt (citing Re Lonhro 1990 2 AC 154 and AG v Times Newspapers Times 12/2/83).

 

What about common law contempt?

  1. In the unlikely event that statutory contempt is not established common law contempt (under section 6(c) of the Act) could clearly be established. The actus reus and mens rea both have to be established. Lord Bingham in A-G v Newspapers Publishing plc [1997] 1 WLR 926 at 936B-D set out the actus reus to be established:

    “We do not accept that any conduct by a third party inconsistent with an order of the court is enough to constitute the actus reus of contempt. Where it is sought to impose indirect liability on a third party, the justification for doing so lies in that party’s interference with the administration of justice. It is not our view necessary to show that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice. Recognising that the restraints upon freedom of expression should be no wider than are truly necessary in a democratic society, we do not accept that conduct by a third party which is inconsistent with a court order in only a trivial or technical way should expose a party to conviction for contempt.”

  2. At 936H-937A, Lord Bingham set out what had to be established in respect of the necessary mens rea:

    “To show contempt, the [A-G] must establish, to the criminal standard of proof, that: ‘the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of the conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire …’

  3. The publication of material contained in an application for reporting restrictions prior to the hearing to determine those restrictions is likely to amount to a contempt of court at common law. It is likely to have a significant and adverse effect on the administration of justice by thwarting the very purpose of the application, thereby making the application for reporting restrictions redundant. Intent to impede or prejudice the administration of justice is likely to be inferred from the context that the publisher will be aware of the context of how the information was received, the purpose for which it was received and the likely restrictions sought in the application.

 

 

Committal for harassment

 

In the matter of an application by Gloucestershire County Council for the committal to prison of Matthew John Newman

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3136.html

 

This is a judgment given by the President. There are, I think, three interesting aspects to this judgment. Aside from him quoting the very famous remark about freedom of speech not extending to the freedom to shout “fire!” in a crowded theatre.   (which is my favourite joke in Rozencrantz and Guilderstern Are Dead)

 

 

  1. The penal notice should be on the face of the order

 

 

So far as material for present purposes, rule 37.9(1) of the Family Procedure Rules provides that:

 

“a judgment or order to do or not do an act may not be enforced … unless there is prominently displayed, on the front of the copy of the judgment or order … , a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

 

Neither the order of 16 May 2014 nor the order of 16 July 2014 complied with this requirement. In the order of 16 May 2014 the penal notice appeared at the end of the order on the second page. Although the order of 16 July 2014 contained, prominently displayed, the statement on the front of the order that “A Penal Notice shall be attached to paragraphs 1 and 2 of the injunctive consent order”, the penal notice itself was set out, just before the text of the injunctions, on the third page of the order.

 

Paragraph 13.2 of PD37A provides that “The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.” I was satisfied that no injustice would be caused to Mr Newman by waiving these defects. In the one case, the penal notice was prominently displayed at the end of a short, two page, order which also contained a recital that Mr and Mrs Newman had “previously received legal advice as to the implications of breaching the terms of this Order.” In the other case, the father was present and consented to the grant of the injunctions. He cannot by that stage in the proceedings have been in any doubt as to the consequences of breach.

 

Although in this case I was prepared to waive these procedural defects, I cannot emphasise too strongly the need for meticulous compliance with all the requirements of Part 37 and PD37A. I might add, for the benefit of the doubters, that this surely serves only to demonstrate the need for the family justice system to adopt, as I have been proposing, the use of standard forms of order available to all in readily accessible and user-friendly templates.

 

I would have two brief points in relation to this – the first is that the President is making use of the term ‘user-friendly’ in relation to the standardised court orders which bears no relation to any accepted definition of the phrase that I have ever seen used. If ten people in the country (outside the MOJ or designers of the form) can be found who say that these forms are a pleasure to use, then I will cheerfully withdraw my remark. I don’t expect to be taken up on that.

 

The second is that the reason the penal notice doesn’t appear on page one of the order is PRECISELY because the template form doesn’t put it there.

 

Be warned people – if you are drafting an order with a penal notice, screw where the stupid form wants you to put the penal notice and put it on the front page. Everything else can be moved down.

 

  1. Harassment of social workers (although the Judge says that harassment of members of the family was worse)

I turn to ground (ii), the allegation that Mr Newman has been guilty of “harassing” employees of the local authority. The allegation is based on the contents of fourteen emails sent to various of the local authority’s employees (who I will refer to respectively as R, J, K, L and V) between 17 July 2014 and 18 August 2014 inclusive and a message sent on 18 August via facebook to the mother of another of these employees. I set out in the Table annexed to this judgment the dates and recipients of each of these email messages and, in full, the text of each message exactly as sent. The facebook message was sent on 9 August 2014 to the mother of another social worker, Kimberley H. The message read “This is what Kimberley does.” Attached to the message were newspaper articles about social workers who boast about removing children.

 

Mr Newman admits the authorship of each of these messages, and does not dispute that each of the emails was sent to one or more of the class of persons referred to in paragraph 5 of the order of 16 May 2014. The only question is whether Mr Newman’s conduct amounted to “harassing” within the meaning of paragraph 5. Mr Jenkins submits that it did. Mr Newman says that what he did was neither intended to be nor did it in fact amount to harassing.

 

What the word “harassing” means in paragraph 5 of the order of 16 May 2014 is a matter of construction, and therefore a matter of law. Whether, in the light of that meaning, what Mr Newman did amounted to harassing is a matter of fact and degree. I adopt the same approach as commended itself to the Court of Appeal in Vaughan v Vaughan [1973] 1 WLR 1159 when considering, also in the context of committal, the meaning of the word “molesting” when used in an injunction. All three judges had recourse to the dictionary.

 

“Harassing”, like “molesting”, is an ordinary English word and there is nothing in the order of 16 May 2014 to suggest that it was being used in any special sense, let alone as a term of art. It is to the dictionary that I accordingly turn. The Oxford English Dictionary provides, in addition to a number of more antique meanings, an apt definition of harass which, in my judgment, reflects what the word harassing means when used in this order:

 

“To subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.”

Whether emails constitute harassment will, of course, depend upon the circumstances, in particular the number and frequency of the emails, their content and tone, the persons to whom and more generally the context in which they are sent. Here we have fourteen emails sent in a little over four weeks. On one day (9 August 2014) there were three. Initially, R seems to be singled out; then the emails are sent to a wider group of people. There is a pervading tone of menace: the personalised attacks (“How do you sleep at night?”, “If you have kids ask yourself what would you do to keep them”); the threats (“I have everything ready to completely ruin everyone who stands against us”, “people’s names … spread all over the world along with their pictures”, “set things right before they go terribly wrong”, “Soon your tyranny will end”, “Soon all your names will be appearing on a newspaper”, “someone, someday will be held accountable”, “unless you wish to put your career on the line”, “Hope you are looking forward to an early retirement”, “The revolution is coming are you ready”); the threatening count down; and the repeated unwarranted demands that X is returned.

 

In my judgment this was quite plainly harassment, not just pestering but psychological intimidation. It was deliberate. It was intended to achieve, by the making of unwarranted demands accompanied by menaces, the return of X to his parents notwithstanding the orders of the court. It is a bad case.

 

The facebook message sent to Kimberley H’s mother is, from one point of view, even worse. What aggravates the contempt is not so much the actual message, which in comparison with some of the others is comparatively innocuous; it is the fact that it was sent to Kimberley H’s mother. For someone in Mr Newman’s position to extend his campaign to a member of his primary victim’s family, whether partner, child or, as here, parent, is despicable. It is deliberately putting pressure on his victim by attacking their nearest and dearest.

 

 

Accordingly, I am in no doubt at all, I find as a fact, and to the criminal standard of proof, that Mr Newman is in breach of paragraph 5 of the order of 16 May 2014 as alleged by the local authority.

 

 

  1. The President goes back to Re J, and reminds us that whilst he was permissive, even welcoming of people publishing their stories (if not identifying the child) and even been critical of Local Authorities and professionals, there was still a line that people should not cross

 

 

In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523, a case that attracted much attention at the time, I articulated, not for the first time, two points which in my judgment are and must remain of fundamental, indeed constitutional, importance.

 

The first (para 36), was the recognition of “the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system.” I added that the same goes, of course, for criticism of local authorities and others.

 

The second (para 38), was the acknowledgement that the “fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar.” I added that a much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism, for “Society is more tolerant today of strong or even offensive language.” I summarised the point (para 80): “an injunction which cannot otherwise be justified is not to be granted because of the manner or style in which the material is being presented … nor to spare the blushes of those being attacked, however abusive and unjustified those attacks may be.”

 

I stand by every word of that. But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.

 

The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.

 

There is freedom of speech, a right to speak. But this does not mean that the use of words is always protected, whatever the context and whatever the purpose. As Holmes J famously observed in Schenck v United States (1919) 249 US 47, 52:

 

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

 

Freedom of speech no more embraces the right to use words to harass, intimidate or threaten, than it does to permit the uttering of words of menace by a blackmailer or extortionist. Harassment by words is harassment and is no more entitled to protection than harassment by actions, gestures or other non-verbal means. On the contrary, it is the victim of harassment, whether the harassment is by words, actions or gestures, who is entitled to demand, and to whom this court will whenever necessary extend, the protection of the law.

 

I do not wish there to be any room for doubts or misunderstanding. The family courts – the Family Court and the Family Division – will always protect freedom of speech, for all the reasons I explained in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam) [2014] 1 FLR 523. But the family courts cannot and will not tolerate harassment, intimidation, threats or menaces, whether targeted at parties to the proceedings before the court, at witnesses or at professionals – judges, lawyers, social workers or others – involved in the proceedings. For such behaviour, whatever else it may constitute, is, at root, an attack on the rule of law.

 

I emphasise, therefore, that Judge Wildblood was perfectly justified in granting the injunction in paragraph 5 of the order of 16 May 2014. Such orders can, should, and no doubt will, be made in future by the family courts when the circumstances warrant. I should add, moreover, that the protection of the law is not confined to the grant in appropriate circumstances of such injunctions. Harassment is both a criminal offence and an actionable civil wrong under the Protection from Harassment Act 1997. And, quite apart from any order of the court, it is a very serious contempt of court to take reprisals after the event against someone who has given evidence in court.

 

I do not want anyone to be left in any doubt as to the very serious view that the court takes of such behaviour. In appropriate cases immediate custodial sentences may be appropriate. And deterrent sentences may be justified. The court must do what it can to protect the proper administration of justice and to ensure that those taking part in the court process can do so without fear.

 

 

 

The Court have not sentenced Mr Newman yet, and it is worth noting that one of the alleged breaches – that he put a mobile phone in his son’s bag was dismissed.

 

I deal first with ground (i), the alleged breach of paragraph 1 of the order of 16 May 2014. This, it will be recalled, forbad Mr Newman from “taking any steps to ascertain the whereabouts of [X] and/or foster placement, including using [his] mobile phone or laptop GPS positioning systems.”

 

The evidence in support of the allegation of breach was two-fold. First, there was evidence from one of the social workers who had supervised contact between Mr Newman and his son on 5 August 2014 that, following this contact, a mobile phone of unknown ownership was found in the bottom of X’s changing bag. Second, there was evidence that, when a key on the phone was touched, it began intermittently sounding what was described as a siren alarm tone and the front screen of the phone displayed the following text:

 

“! Help ! I lost my device! Can you please help me get it back? You can reach me at 000000 newman1985@hotmail.co.uk Blow me fucker, give me my son back”.

 

That is the extent of the factual evidence, though in his affidavit the local authority’s team manager says that “This action could be considered as an attempt to locate X or to intimidate his prospective adopters, carers or involved Children’s Services staff.” Be that as it may, the relevant allegation in relation to this incident is not of intimidation, only of breach of paragraph 1 of the order of 16 May 2014.

 

There was a clear prima face case that Mr Newman had deliberately placed the mobile phone in X’s changing bag, but despite hearing what Mr Jenkins had to say, I remained unpersuaded that there was even a prima facie case against Mr Newman that his actions had, within the meaning of paragraph 1 of the order of 16 May 2014, involved him “taking steps to ascertain the whereabouts of” either X or the foster placement. It was hardly to be imagined that the only people likely to pick up the phone – either a social worker or foster carer – would be so obliging as to contact Mr Newman and volunteer the information. And if the concern, as indeed the order itself would suggest, was that Mr Newman was using the phone itself in such a way (eg as a tracking device) as to reveal the relevant location, then that is not something, in my judgment, that could properly be inferred in the absence of evidence – and there was none – demonstrating how the phone could be used in that way. Absent such evidence there was, in my judgment, not even a prima facie case against Mr Newman.

 

Bad character evidence

 

There are all sorts of rules and guidance in criminal proceedings as to when you can, or can’t adduce or cross examine on ‘bad character’ evidence. We don’t have those rules and guidance in care proceedings (yet).

 

If you are a parent in care proceedings, every bit of your life is pored over. There will be a life history, assessments, questioning, examination of records relating to school, health visitor and sometimes your medical records. You will find yourself scrutinised – if you are foolish enough to have an open Facebook page, you might see that produced – you might end up with your text messages being obtained and released into the proceedings, maybe your emails too.

So in a sense, a lot of the proceedings can be (or at least seem to be) about bad character.

There’s a new development though, which is that judgments in care proceedings are being published. Those can (and generally should) contain the names of the social worker and Guardian.

 

Now, what happens if in one of those cases, the Judge says that Steve Pink (your social worker) has done a bad assessment, hasn’t been fair, didn’t keep proper records and fell short of the standards required of a social worker conducting an assessment. (Or the Guardian, the same principle works for both)

 

(Or if you want a real example, read the last blog post – I don’t want to pick on those professionals specificallly, but I can see that there are things in that judgment that they wouldn’t want to be cross examined on in other cases)

 

If the parent’s case is that the worker has done the same thing again with THEM, are they entitled to cross-examine the social worker or Guardian about those matters?  Is it material evidence that could undermine their credibility and bolster the parent’s case?

 

It would seem to be so. It probably feels uncomfortable and worrying for professionals that things they got wrong in one case could come back to bite them in another.  But think for a minute – if the judgment was about the father instead, it would be relied on and used in care proceedings. Is what’s sauce for the goose sauce for the gander?  Or is it on the parent who is ‘on trial?’

 

I will be interested to see when this issue arises, and how the Court’s deal with it. There’s a risk of article 6 unfairness if something material isn’t admitted   (I think it has to have relevance to the case – i.e the complaint the parent is making has similarities, not just being done to make a witness squirm  – there are some strictures against that in the Bar Council Code of Conduct   (g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person     – I’ve seen plenty of people sail pretty close to that though)

 

Once the genie is out of the bottle though, it has implications – suddenly everyone has to search case law for any references to the social worker, Guardian or other professional witnesses to see if there’s any dirt there, the Court has to slog through an entire judgment on another case to ensure that the criticisms are not being cherry-picked out against a more positive overall view. And a Court might feel fettered in naming, or shaming a social worker if they know it might be brought up time and again. Also, it places even more pressure on social work evidence, particularly for the inexperienced ones who might have a blunder in one case dog them for the next year.

 

 

Hearing an appeal in private

 

 
The Court of Appeal were asked to rule, as a preliminary issue, whether the mother’s appeal should be heard in private

Re DE and AB 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1064.html
Even though a family Court hearing is held in private (or secret, depending on your standpoint), where only those directly involved – or the Press by application, can attend, if the case gets appealed, the appeal hearing is usually heard in public.

It always throws you a little when you are in the Court of Appeal, dealing with incredibly sensitive and delicate matters and there are thirty bored law students and two Roy Cropper types with  tartan thermos flasks sitting on benches behind you, but that’s the way of it. Anyone can walk into the Court of Appeal and watch a hearing.

In reality what they get to hear is two hours of this sort of thing

“I see at paragraph 14, subsection (v) of your document that you make reference to Lord Butter’s decision in Re K – can you take me to the relevant passage?”

“My Lords, yes, in the bundle of precedents, that is at page B92, and it is the third paragraph from the top, beginning ‘it is well-established that’…”

And the prospects of anyone being able to make sense of, follow or enjoy that whole affair are pretty limited.
Anyway, the main dispute in Re DE was the claim by a mother that the father should make financial payment for a child – this is under Schedule 1 of the Children Act. This is usually (but not necessarily limited to) for cases where the parents weren’t married to each other and it is a way of getting one parent to make a financial contribution to the other, where the Child Support Agency can’t help (because the case is more about capital than income, or one parent is effectively a millionaire)
In the High Court, Mr Justice Bodey refused the mother’s application, and made an order restricting the reporting of the case – i.e that the parties and the child could not be named.
The father asked for the appeal to be heard in private, in large part as a result of this:-
The father applies for the proceedings to be heard in private on the basis that the mother, in a telephone call she made to the father on 2 July 2014, has threatened him with ‘maximum publicity’ by ensuring that as many journalists and members of the public as possible attend the permission hearing. The father contends that the publicity of the appeal process is being used to bring undue pressure on him and to defeat the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the ‘prohibited information’). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman’s terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail
[Nicely put, that last sentence]

Followers of the super-injunction scandal of a few years ago may remember that some of the super-injunctions were granted on the basis of an allegation of blackmail – i.e give me compensation/a cheque and we’ll leave the papers out of it. So, one has to be wary – just because father makes that assertion doesn’t mean that it is true, and likewise just because the mother denies it doesn’t mean that father made it up. Just don’t take it as being settled either way.

Of course, the loophole here, is that by appealing the decision of Mr Justice Bodey, the case goes into the Court of Appeal, and the Press and public can attend that hearing.

Father’s preliminary application, therefore, was that if the appeal was open to the press and public, then all the benefit to him of Bodey J’s judgment would be lost BEFORE the Court of Appeal decided whether he was right to have given the father that protection. The Press and public would already be in the court room, hearing all of the juicy details.
The Court of Appeal therefore had to weigh that point (in essence, there’s no point arguing about whether something should be secret if you tell everyone the secret before you have the argument) against the wider public interest of appeals being heard in public.

I heard the father’s preliminary application before coming to a decision whether to adjourn it as requested by the mother. I did not need to decide the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the detail of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the very firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that ‘secret justice’ is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.
Despite the entirely adverse view that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.
As I shall explain, the court was able to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.

[The last bit is saying, in essence, that this might have been difficult had there been members of the Press and public there to throw out, but in reality, there was just one pupil barrister, who politely made their excuses and left]
But the Court of Appeal still had to follow the principles and precedents and come to the right decision in law. In case the issue comes up again, it is helpful that the case sets those principles out

Legal submissions on the law – power to sit in private
The father submitted that it was necessary to seek an order that the hearing take place in private on the basis that (a) publicity would defeat the object of the hearing; (b) a private hearing was necessary to protect the interests of the child; and (c) it was in any event necessary in the interests of justice.
A court hearing an appeal or an application for permission to appeal may sit in private if the court whose decision is being appealed had the power to sit in private during those proceedings. But the appellate court must give its decision in public “unless there are good and sufficient grounds” for giving it in private (in which case the court must state those grounds in public): see section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.
Though a case was heard in private, it does not follow that the Court of Appeal will sit in private, on the contrary. Hearings in family cases in the Court of Appeal are open to the public, save on very rare occasions where the court orders otherwise: see The Family Courts: Media Access & Reporting, published by the Judicial College and Society of Editors in July 2011.
It is axiomatic that the starting point for this court’s consideration of the preliminary application is that open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders made, are public: see, for example article 6(1) ECHR, CPR 39.2 and Scott v Scott [1913] AC 417.
Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising its wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury observed at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:
“As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.”
A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:
“But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”
After citing the dictum of Viscount Haldane, Lord Devlin continued at p 239:
“That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”
More recently the importance of the common law principle of open justice was emphasised by nine Justices of the Supreme Court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society at [2]. He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477 and JIH v News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].
When considering the imposition of any derogation from open justice, the court must have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

 

It is also worth noting that unless the Court of Appeal make a specific order (which they have the power to do), then all of the restrictions on reporting and naming the parties which would apply in the Family Court do not apply.

Specifically

Section 12(1) a of the Administration of Justice Act 1960 will not apply to the present hearing if it is to be heard in public. As a consequence, any matters discussed in open court at the permission hearing can be freely reported.
Reporting is prima facie not restricted unless the Court of Appeal makes an order in the proceedings. In children cases, s. 97(2) Children Act 1989 does not apply in the Court of Appeal: see Pelling v Bruce Williams [2004] EWCA Civ 845; [2004] Fam 155; [2004] 2 FLR 823 at [53]).
This Court has observed that it is necessary to analyse whether, on a consideration of the competing rights in each case, anonymisation of proceedings and judgment is necessary: Pelling v Bruce-Williams at [49]. Reporting may be restricted under the inherent jurisdiction or the Children and Young Persons Act 1933 section 39, if applicable.

 

So the Court of Appeal had to decide whether to exercise that power in this case. They did, on the basis that given that the mother was seeking publicity in this case, and that there was an anonymised judgment giving lots of details about the case (but no names) out in the public domain, it would be simple if this appeal was using real names to link the two cases together and for a lot of sensitive and delicate information to be in the public domain.
the fact of the existence of the anonymised judgment of Bodey J significantly enhances the risk that if the parties are named prior to the outcome of the hearing or any permitted appeal, that the information restrained would in any event enter the public domain through jigsaw identification. This court finds itself in the position encountered by Bodey J, that is if during the hearing information currently subject to the injunction is discussed in open court and is rendered reportable, “it would effectively be to give the mother everything she seeks, something which [I] think she realised during the course of the hearing, and would undermine the balanced decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA”.
Accordingly I shall order that the proceedings be held in public but subject to immediate and continuing publicity protections so as to prevent withheld and prohibited information from being disclosed into the public domain without the permission of the court. There shall be anonymisation of the reporting of the identities of the parties and the child and any information likely to lead to the identification of the child and the order made by Senior District Judge Waller shall be extended to cover this hearing.
At the conclusion of the permission hearing and after permission had been refused and further argument heard, I extended the orders made during the proceedings to protect any prohibited information inadvertently disclosed during the hearing. For the avoidance of doubt, the injunction made by SDJ Waller continues to have effect. The precise terms of the orders that I made are annexed to this judgment.

 

serious case review versus judicial review – a (cough) review

Who ‘owns’ a Serious Case Review, and what rights or  powers do the Courts have over its disclosure?

 

X (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Admin/2014/2522.html

 

I do complain about the President quite a bit, but the one thing you could never accuse him of is being work-shy. This is yet another very tricky judgment that he has taken on – whilst still having two insanely difficult judgments still to produce –  Q v Q (how to fund litigants whose article 6 rights would be breached by them being unrepresented) and the fallout judgment from Cheshire West (how are the Court of Protection going to deal with the HUGE volume of additional cases that arise from the Supreme Court’s decision on deprivation of liberty).

 

This one relates to a child, X, whose mother stabbed him when he was about ten years old. He is now thirteen. Those care proceedings ended with the making of a Care order, hotly contested by the father, who has been in one form of litigation or another about this perceived injustice over the last three years.

Outside of the Court case itself, the Local Safeguarding Children Board (LSCB) – which is a group of senior representatives from all the relevant agencies in each local authority area (police, schools, health, social services etc), held a Serious Case Review.  These Serious Case Reviews are intended to be a scrutiny of what happened in the case and specifically whether agencies made mistakes, could have predicted what would happen, could learn lessons for the future, might need to change some policies and perhaps even whether someone professional is badly at fault and to blame.

 

The general rule and principle these days are that these Serious Case Reviews are to be published, although with names of children and parents anonymised. This in part, emerged from the public disgust at Baby P and the desire that these exercises were available for all to see. There’s a debate for another day about whether that transparency is a good thing, or whether it inhibits the ability of each agency to properly lay out their shortcomings.

 

The father contributed to this exercise and saw the report, but didn’t have a copy of it, and it was not made public.

 

The LSCB rationale for that was this :-

 

  • The LSCB received the overview report and executive summary on 15 July 2011. The LSCB considered the issue of publication of the reports, taking account of the letter of 10 June 2010, decided that there were such compelling reasons in this case and concluded that any decision on publication should be underpinned by the impact it was likely to have in relation to X’s current and future well-being and that the basis for this decision should be informed by advice from the psychiatric practitioners involved in his care. After careful deliberation the LCSB concluded that the overview report should not be published; that it would consider whether to publish the executive summary following a psychiatric assessment of the potential impact on X of so doing; and that the local authority would make the overview report and executive summary available to the court as part of the current care proceedings in relation to X so that all parties might have access to the relevant background information and that this be communicated to X’s parents.

 

 

 

  • Following a further psychiatric assessment of the situation in relation to X, the independent chair of the LSCB, Mr D, wrote to OFSTED on 26 October 2011:

 

 

“The Board has now been advised by the psychiatrist treating X that it continues to be her considered opinion that the publication of any document relating to the Serious Case Review which would cause comment or discussion in the media or local community would be seriously detrimental to X’s recovery. She has advised that although X is making progress his recovery is likely to be protracted and he is about to begin a course of psychotherapy that is likely initially to be unsettling for him. It is her opinion therefore that the Executive Summary should not be published.”

 

Two competing factors are being balanced – the interests of transparency and open public debate versus the impact on the child.  That underpins most of the transparency debate (and given the President’s well-known views on transparency, the LSCB must have been slightly fearing the worst when the case was listed before the President. That might be why they shelled out for a QC to represent them…)

 

The father’s application was a free-standing one under the Children Act 1989, but on analysis, the President found that this could not be right in law, and that the proper legal mechanism (indeed the only one) would be a judicial review of whether the LSCB had behaved in an unreasonable way (specifically a way that no reasonable body in their position could have behaved) in making the decision not to publish this Serious Case Review

 

 

  • In the final analysis the father’s application turns on quite a narrow point.

 

 

 

  • The first thing to appreciate is that the LSCB is a public body, juridically distinct from and wholly independent of the local authority. It exercises public functions in accordance with the statutory scheme to which I have already referred. In accordance with that statutory scheme it is for the LSCB, not the local authority and not the court, to decide whether or not to publish the overview report and the executive summary: see Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, paras 7, 58.

 

 

 

  • The second thing to appreciate is that this is, as Judge Wildblood correctly said, a free-standing application. It is not an application made in pending proceedings for disclosure of documents into those proceedings. It is not a case (as Re X and Y (Executive Summary of Serious Case Review: Reporting Restrictions) [2012] EWCA Civ 1500, [2013] 2 FLR 628, was) of an application for a reporting restriction order to restrain publication of a document. It is an application by the father for an order requiring the LSCB to disclose to him a document which the LSCB in exercise of its statutory functions has decided should not be disclosed to him except upon terms that he is not willing to accept. It is, in other words, an application challenging the LSCB’s decision, a matter therefore, as Judge Wildblood said, of administrative law.

 

 

 

  • Such a challenge, in circumstances such as this, can in my judgment be made only by means of an application for judicial review in accordance with CPR Part 54. It cannot be made in the Family Court, nor in the High Court except in accordance with CPR Part 54. On that short ground, and irrespective of the factual merits, this application is misconceived.

 

On that basis, the President looked at the father’s arguments

 

  • The father has set out, both in his written statements and in his oral submissions, the various reasons why he wants a copy of the overview report. He says it should be published in the interests of transparency and so that public officials can be made accountable. He says that he should be allowed to study it with more time and scope for careful analysis and understanding than if he is merely allowed to read it at the local authority’s offices. He believes it contains material errors which should be corrected; he wants to ‘set the record straight’. He believes it contains material that will enable him to reopen the care proceedings by way of a further appeal or a renewed application to discharge the care order (thus correcting what he believes to have been a miscarriage of justice) and which may assist him in bringing a civil claim. He says that as X’s father he should be allowed to have a copy.

 

 

 

  • Those are all very understandable reasons why the father should be seeking the relief he is, but none of them demonstrates any proper basis of challenge to the decisions of the LSCB, whether the original decision not to publish or the decision explained in Mr D’s letter of 19 September 2012. As Mr Tolson put it, and I can only agree, the father does not identify, still less demonstrate, any flaw in the LSCB’s decisions or decision-making process.

 

 

With that in mind, the father’s application for judicial review was refused – the only crumb of comfort being that one of the arguments deployed by the LSCB was crushed from a great height by the President

 

  • I have set out the reasons given at the time by the LSCB for its decision not to publish (see paragraphs 6-7 above) and for its later decision not to allow the father a copy (paragraph 10). Those reasons are clear and readily understandable. They disclose, in my judgment, no arguable error of law. They set out matters, including in particular the advice of X’s treating psychiatrist, which plainly entitled the LSCB to conclude, as it did, that there were indeed the “compelling reasons” which had to be demonstrated if there was not to be publication. The LSCB plainly applied its mind carefully to all the relevant material and to the key issue it had to decide. Its process cannot, in my judgment, be faulted. It is impossible to contend that its decisions were irrational. Nor is there any arguable basis for saying that it wrongly struck the balance as between the various competing demands it had to evaluate: the right of the public to know; the quite separate right of the father to demand not merely access to but also to be supplied with a copy; and, most important of all, though not of itself determinative, the compelling demands of X’s welfare.

 

 

 

  • Mr Tolson also submits that permission to apply for judicial review should be refused because the father’s claim lacks any practical substance, because he cannot demonstrate, so it is said, how any flaw in decision-making might materially affect him, nor can he demonstrate why he needs a copy of a document which he has been able to read on three occasions. With all respect to Mr Tolson I find this most unconvincing. I would not have been prepared to refuse permission on this ground. But this does not, of course, affect the ultimate outcome given my conclusions in relation to Mr Tolson’s first two arguments.

 

 

 

 

 

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