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Category Archives: transparency

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.

 

 

 

 

 

Rhubarb* and custody

 

(*Story contains no rhubarb, but was prepared in an environment where there is a risk that rhubarb, rhubarb pollen (?) or rhubarb dust may have inadvertently contaminated the contents )

 

 

A committal hearing in relation to a grandmother who was using electronic media, including Facebook to protest against the adoption of her granddaughter.

 

 

Staffordshire CC and Beech 2014

 

There are two judgments, one being the committal hearing itself, and the second being the sentencing

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B81.html

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B80.html

 

 

Probably the most important thing is said at the very end

 

I conclude the Judgment by making clear to Mrs. Beech that there is no objection to her criticising the court, criticising the judge, the Social Services Department or the family justice system. She has an entitlement to campaign about these matters. What the court will not tolerate is the use of the name of her grandchild or the photograph of her grandchild in connection with this campaign.

 

 

The Court did find that the grandmother had breached the orders preventing her from naming her grandchild and using photographs of her grandchild within the campaign. Part of that had been to ask a wide network on Facebook to circulate the photograph of her grandchild with a view to tracking her down in the adoptive placement and find out where she was.

 

Allegation number 1. Mrs. Beech has a group Facebook page entitled “Stop social services” which has about 7,000 members. This page was compiled before my Injunction Order was granted. The page has photographs of the child and a slogan including her name. The page contains the assertion that the child has been stolen by Staffordshire County Council Social Services. On 24th January 2014 the Injunction Order was served on Mrs. Beech. On that very day she posted additional words on her group Facebook page in terms which represent a flagrant breach of the court order. I read from the relevant posting which is exhibit 5 in my papers: “I have just had court papers handed me. I have been gagged until (the child’s name) is 18 years old. How can this be? They steal my granddaughter, then gag me. Fuck off. You have no chance. I am still fighting for her, you idiots. You cannot bully this nana. The truth hurts and no one will shut me up. I will go to war for my family, you idiots. Please spread the word”. These words were posted alongside photographs of the child and other words and slogans which had been posted long before the Injunction Order was granted. However, I find that by posting these additional words on 24th January 2014 alongside the photograph Mrs. Beech was republishing the old photograph and slogans and so her breach extends not only to the new words but to the old words and the old photograph.

 

Allegation number 2. On 28th January 2014 the B.B.C. website reported my Injunction Order in an article carefully drawn to avoid breaching the terms of the order itself. However, Mrs. Beech on her Facebook page posted a link to the B.B.C. report together with a short extract from it. She accompanied this posting with additional words of her own which constituted a flagrant breach of the Injunction Order. She posted “Just to let you know this is me, Amanda Jane Beech. It’s about my granddaughter (named). Staffordshire Social Services think they can bully me. The truth will be heard.”

 

Allegation number 3. On her Facebook page Mrs. Beech posted more words of flagrant breach, this time accompanied by a photograph. Mrs. Beech claims that the photograph could have been put up by someone else. She says that the photograph was already present on her Facebook page. She says that if another person clicked on the Facebook page to indicate they liked the contents the consequence would be that the photograph came up on this profile page automatically without any intervention on her part. The Facebook page does show that people had clicked the page to show that they liked it. Mrs. Beech raised the same point in relation to allegations 5, 9 and 11, saying in relation to these other allegations that the intervention of others explains the entire posting, not just the posting of the photograph, as she says it does for allegation 3. I have looked closely at these pages. No other name appears. On each occasion the posting appears under Mrs. Beech’s own name. With the exception of allegation number 5 each photograph follows a different form of words for which it is obvious to me that the grandmother, Mrs. Beech, is responsible.

 

She gave me rather inconsistent evidence about these allegations. She said that she did from time to time re-post material on the Facebook page in order to encourage her campaign. In this context she accepted that some of the postings might be her responsibility but some might be the responsibility of supporters. In the course of her evidence she said that the accompanying words appeared automatically from what she had already recorded herself on other parts of the page. However, on analysis the form of words is different for each of these postings, so I reject this explanation from Mrs. Beech. One of these allegations, allegation number 5, has no accompanying words and comprises just a photograph. However, this posting appears under Mrs. Beech’s name, just like the rest. I have heard her account. I am sure that she posted this and the other postings to encourage others to support her continuing campaign.

 

Allegation number 4. This allegation comprises clear words of breach which Mrs. Beech accepts that she posted on her Facebook page. There was no photograph with this posting.

 

Allegation number 5. I have dealt with allegation number 5 above.

 

Allegation number 6. This allegation comprises clear words of breach which Mrs. Beech accepts she posted on her Facebook page. Again, there is no photograph involved in this breach,

 

Allegation number 7 caused me a moment’s hesitation. This is Mrs. Beech’s Facebook group page. She accepts that she posted on this page a link to a YouTube recording. The new words do not constitute a breach of the terms of the injunction. However, these new words must be considered with the existing words to which they were linked so the effect is a re-publication of the words previously posted. Read together the words refer to the removal of Mrs. Beech’s grandchild into care which constitutes a breach of the injunction.

 

Allegation number 8. Mrs. Beech accepts that she posted the words and photograph which constitute this breach. She makes the point that the photograph was already on the web as part of an online petition that she started long before the Injunction Order was imposed. The local authority accept that the photograph is not new, but on this occasion by posting the link Mrs. Beech brought the old picture back onto her Facebook page again which constitutes a re-publication of the old picture in breach of the Injunction Order.

 

Allegation number 9. I have dealt with allegation 9 above when dealing with allegation number 3.

 

Allegation 10. Mrs. Beech accepts that she posted these words which clearly breached the terms of the Injunction Order. The reference to her partner, Mr. Rogers, is accepted by Mrs. Beech as a mistake. This was a publication to a closed group without a photograph.

 

Allegation number 11 has already been dealt with above when I was dealing with allegation number 3.

 

Overall then, all 11 allegations made by the local authority have been proved so that I am sure of the truth of the allegation and the fact that it infringes the terms of the injunction

 

 

It then adjourned, to give the grandmother the chance to reflect on this, and to get legal advice before the sentencing hearing.

 

At that sentencing hearing the grandmother accepted that she would comply with the injunction, take down those postings and not put up things of that sort in the future.

 

As a result, the Judge gave her a suspended sentence of 56 days, meaning that Ms Beech would not go to prison for her breaches unless she were to breach the order again (in which case the sentence of 56 days would take effect)

 

 

It does raise difficult questions, which I raised in part at the original report of the injunction. If a person campaigns on Facebook without naming their granddaughter, the step to indirect identification is a very short one. It is likely that within the rest of the grandmother’s facebook page are pictures and names of her family, and one could deduce fairly swiftly by the appearance of say “Rebecca” on those photos up until a year ago and then no more photos that it is “Rebecca” who was the child who was removed.

 

The provisions about directly identifying and indirectly identifying a child make decent sense for mainstream press – a newspaper reporting about a child and calling them “Child X” doesn’t identify the child.

 

Moreover, newspapers have editors, and lawyers. They can pause and consider whether they might be in breach of the law by any element of their story.

 

But we are now in a world where anyone with a mobile telephone can become their own publisher, and put things on the internet for all to see. It’s a whole new ball-game, and the law hasn’t quite caught up yet.

 

 

Ms Beech putting on Facebook “My granddaughter, who I can’t name, was stolen by social services” doesn’t directly identify the child, but it must be arguable that it indirectly identifies the child, because you can see that that the author of the post (who is named) is related to the child in question, and probably find on that page other photographs of the child. In a situation like that, proving whether someone made that indirect identification deliberately or by accident or lack of thought is very difficult, especially to the criminal standard of proof required.

 

 

 

 

[The original injunction judgment is here

http://www.bailii.org/ew/cases/EWCC/Fam/2014/B1.html

 

and my post at the time about it is here

 

http://suesspiciousminds.com/2014/01/24/transparency-and-facebook/   ]

 

 

 

 

 

 

Reporting restriction orders – a pragmatic suggestion

London Borough of Waltham Forest and AD 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1985.html

 

This was an application by Waltham Forest for a Reporting Restriction Order to prevent the Press from naming a 3 year old child who had been present when her father murdered her mother. There’s evidently a criminal trial coming up, and there’s a substantial human interest story in the tragic circumstances of this little girl. The Press were always going to run the story – the issue for Waltham Forest was whether the Press should run that story WITHOUT identifying the child.

 

 

  • Miss Howard, in her submissions, also refers to the expert reports provided by Dr. Jones, a consultant psychiatrist and Dr. Graham, a psychologist, in the public law care proceedings. They have both examined and assessed EI. They, understandably, set out the dreadful emotional and psychological impact that witnessing the death of her mother will have on EI, compounded by this tragic loss of her mother and, if her father is convicted, the loss of her father for a considerable period of time. Their assessments are deeply troubling to read as to the future that EI now faces. Everybody will undoubtedly have the greatest possible sympathy for the terrible position that EI finds herself in now and will undoubtedly do for the rest of her life. I note that neither of those experts have been asked to give an opinion on what potential further damage, if any, publicity about EI and her mother and father would have upon her.

 

 

 

 

  • In the submissions on behalf of the local authority it is asserted that if EI is identified as being the child involved in this case, it will have an adverse impact on her. It is asserted that it would thwart the therapeutic process that she is engaged in now and will continue to be involved with for some time to come. It is asserted that although the reporting of the father’s trial may be of short duration – a matter of a few days or a week – anything which appears on the internet will be there for the rest of EI’s life and that were she, when she is older, to come across her name in association with her mother’s death and her father’s trial, it may have an adverse impact upon her. It is further asserted that if, in her daily life – when she starts school, for example – friends or others were to search her name on the internet, they would raise her family history with her and that would undo the benefits of the therapy that she has received and will receive. Accordingly, it is submitted that it is necessary for the court to grant a reporting restriction order in narrow terms that would prevent the publication of EI’s name.

 

The Press Association took a slightly different view

 

 

  • Mr. Dodd makes the submission that the matter has already been the subject of press reporting. However, he makes the powerful point that the evidence of harm to EI, if she is named, is speculative. He also makes the strong submission that the question is not, “Why should the press name EI?” but rather, “Why may the press not name EI?” He further submits that the issue of the use of EI’s name in connection with the reporting of the father’s criminal trial and the death of the mother is a matter to be left to the decisions of individual editors. He also makes the powerful point that just because some elements of the press or broadcast media, or others, may misuse the naming of EI is not a justification or a reason for injuncting the whole of the press.

 

 

 

 

  • Lord Rodger of Earlsferry observed in Re Guardian News & Media Ltd. & Ors. at paragraph 72,

 

 

 

“Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants – even though nothing particularly significant appears to have been published when Mr al-Ghabra’s identity was revealed. But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation”.

 

 

  • In considering the competing Articles – Article 10 and Article 8 – and in considering the merits of the application made by the local authority one of course has the greatest possible sympathy for EI. She very sadly will have to live with the tragic events of 31 July, 2013 for the rest of her life. The decision I have to make, however, is whether there is sufficient evidence of harm to EI if she is named, which when balanced against the freedom of expression under Article 10 of the press & broadcast media, it is an absolute necessity for me to make the reporting restrictions order sought. Mr. Dodd tells me, and I accept, that some newspaper editors have already made the decision that they will not name EI in any reporting of the father’s criminal trial.

 

They put the question very powerfully, and in the correct way in law – the question is not “Why should the Press name EL?” but “why should the Press not name EL?”

 

The Judge was not persuaded that the article 8 right to privacy for the child outweighed the article 10 right to free expression and declined to make the Reporting Restriction Order.

 

  • I accept that EI faces, emotionally and psychologically, a very difficult future. I accept that there is a possibility that if she is named in either the press or the broadcast media – in particular, on the internet – that at some future date she may come across that and it may cause her some distress or other people with whom she is associated may come across it and mention it to her. That, I accept, may cause her some distress.

 

 

 

 

  • However, I am not satisfied that there is clear or cogent evidence that that risk would either thwart the therapy that she is receiving or would undoubtedly undo the benefits she may derive from her therapy. I consider the potential risks of further harm to EI, if she is named in connection with the reporting of her father’s trial, to be speculative and speculation. Even if I am wrong about that, the risks of further additional harm to EI do not overcome the high hurdle that is required for the granting of a reporting restrictions order. If one was solely concerned with the welfare best interests of EI it may well be that the court would want to take the course of least harm to EI and, accordingly, would make an order. That is not the position the court is in. The court is having to balance the Article 8 rights of EI with the Article 10 rights of the press and broadcast media. I am not satisfied that the naming of EI and the risks of that to her are so clear or compelling that it justifies placing a restriction upon the press and broadcast media in the manner in which they report the father’s trial. It is submitted on behalf of the local authority that this case is very different from other reported cases because the child was present when her mother was killed. I accept that is an extremely unusual feature. But, I also have to accept that that feature is one which will be, I have no doubt, of considerable interest to the press and broadcast media and to their readers, viewers and listeners.

 

The more important issue is the Judge’s pragmatic suggestion for Local Authorities in this sort of situation in future (no doubt with an eye to the costs to the public purse and the time pressures on the Courts)

 

Mr Dodd (for the Press Association) submits that applications for reporting restriction orders by local authorities are increasingly being made at considerable cost in time and money. I endorse his submissions that local authorities, in particular, ought to give very careful thought to alternative means of achieving the aim that they seek when they apply for a reporting restriction order – namely, local authorities should, in future, consider writing to editors of the press and broadcast media, inviting them, for example, not to name a particular child or children in connection with a particular story and setting out clearly, within that letter or e-mail, the reasons in support of such a request. That, alternatively, could be done by sending a letter or an e-mail to what is now the Press Complaints Commission, which will be replaced by the Independent Press Standards Organisation, who may then be requested to transmit the letter or e-mail more widely to the press and broadcast media. In my judgment, that is a course which local authorities should first consider and should first make before launching applications for reporting restriction orders.

 

 

“The pages of the most extravagant French novel…”

 

 

Rapisarda v Colladon 2014 – new areas of transparency, journalism and Monarchs trying to protect public morals – it has it all.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/1406.html

This is a very quirky case, decided by the President. It arises from divorce and ancillary relief proceedings. In particular, it arises from an application by the Queen’s Proctor, to dismiss a large number of divorce petitions, and to set aside a number of decree absolutes and decree nisis.

(Who the heck is the Queen’s Proctor, you may be asking – well, he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973)

This case is described by the President in his opening paragraph as being

what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale

Vexingly, for me, the judgment doesn’t give chapter and verse on what on earth was going on here.

The issue that the judgment is principally concerned with, is whether the Press could report what the Court was uncovering. At the moment, they are prevented from reporting details from divorce cases (not, as you might imagine to protect the confidentiality of the individuals but to protect public decency)

That allows the President to do two of his favourite things – (a) to test where the boundaries of transparency are and whether they could be expanded; and (b) to give a history lesson as to how the current framework came to be.

For a law geek like me, (b) is really rather absorbing, and I have to say that few people have ever been as skilled as the President in doing that sort of exercise.

So, what prevents the Press reporting about what happens in divorce or ancillary relief proceedings? * (As to whether any of this applies to ancillary relief proceedings, having analysed it very carefully, the best we can do is “It might”)

It is the Judicial Proceedings (Regulation of Reports) Act 1926 (from now on in this piece “The 1926 Act”

3. Section 1 of the 1926 Act is headed “Restriction on publication of reports of judicial proceedings”. As amended, it provides as follows:
“(1) It shall not be lawful to print or publish, or cause or procure to be printed or published –
(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say:
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.
(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding level 5 on the standard scale, or to both such imprisonment and fine:
Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act.
(3) No prosecution for an offence under this Act shall be commenced in England and Wales by any person without the sanction of the Attorney-General.
(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
So, in normal language –

1. the Press can’t report anything arising from Court proceedings which might injure public morals (I’m not convinced that is routinely adhered to, thinking of the many sexual abuse celebrity crime reporting, or the level of detail that was published arising from evidence in murder trials – the murder of Lee Rigby springs to mind, and the Press have hardly been sparing in the Oscar Pistorius details)

2. The Press can’t report anything arising from the evidence given in divorce proceedings or PROBABLY ancillary relief proceedings (they can report things in broad summary, but not chapter and verse). And if they do, they can be prosecuted.

3. That does not stop the reporting of bona fide LAW REPORTS
The President explains how the 1926 Act developed. In effect, at around the same time as the law banned Obscene Publications the Press started publishing fairly routinely the juicy and salacious details from divorce cases to titillate and/or shock their audience.

8. Kate Summerscale, in her recent retelling in Mrs Robinson’s Disgrace: The Private Diary of a Victorian Lady (Bloomsbury, 2012) of the remarkable case of Robinson v Robinson and Lane (1859) 1 Sw & Tr 362, notes (at page 187) what one can only think of as the delicious irony that in the summer session of 1857 “Lord Palmerston’s government had pushed through the Matrimonial Causes Act, which established the Divorce Court, and the Obscene Publications Act, which made the sale of obscene material a statutory offence.” Both, she opines, had identified sexual behaviour as a cause of social disorder. But, she continues:
“A year on … they seemed to have come into conflict: police officers were seizing and destroying dirty stories under the Obscenity Act, while barristers and reporters were disseminating them under the Divorce Act. ‘The great law which regulates supply and demand seems to prevail in matters of public decency as well as in other things of commerce,’ noted the Saturday Review in 1859.” – The author, she suggests, was James Fitzjames Stephen, later Stephen J – “‘Block up one channel, and the stream will force another outlet; and so it is that the current dammed up in Holywell Street flings itself out in the Divorce Court.'”
9. Deborah Cohen, Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), comments (at page 45), that:
“Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market.”
This state of affairs even led Queen Victoria to become involved, and she caused this letter to be written

“to ask the Lord Chancellor whether no steps can be taken to prevent the present publicity of the proceedings before the new Divorce Court. These cases, which must necessarily increase when the new law becomes more and more known, fill almost daily a large portion of the newspapers, and are of so scandalous a character that it makes it almost impossible for a paper to be trusted in the hands of a young lady or boy. None of the worst French novels from which careful parents would try to protect their children can be as bad as what is daily brought and laid upon the breakfast-table of every educated family in England, and its effect must be most pernicious to the public morals of the country.”

Obviously the comparison between lurid French novels and the details of divorce reports in the English newspapers was a popular one, because the metaphor was still going in 1922, when King George V caused this correspondence to be written

12. Despite all this, as Cretney records, every attempt to remedy matters by legislation failed until the notorious Russell divorce case (see Russell v Russell [1924] P 1, [1924] AC 687, and, for the eventual denouement, The Ampthill Peerage [1977] AC 547) was opened before Sir Henry Duke P and a jury on 8 July 1922. On the fourth day of the hearing, the King’s Private Secretary, Lord Stamfordham, wrote to the Lord Chancellor, Lord Birkenhead:
“… the King is disgusted at the publication of the gross, scandalous details of the Russell divorce case. His Majesty doubts whether there is any similar instance of so repulsive an exposure of those intimate relations between man and woman which hitherto through the recognition of the unwritten code of decency indeed of civilisation have been regarded as sacred and out of range of public eye or ear. The pages of the most extravagant French novel would hesitate to describe what has now been placed at the disposal of every boy or girl reader of the daily newspapers.”
So for all of our modern obsession that Prince Charles has been exercising influence behind the scenes and pulling strings, it is nothing new.
The King wasn’t done there, and had another try later on

14. The final catalyst seems to have been the newspaper reporting in March 1925 of Dennistoun v Dennistoun (1925) 69 Sol Jo 476. King George V returned to the point, Lord Stamfordham writing to the Lord Chancellor, now Lord Cave, in striking terms:
“The King feels sure that you will share his feelings of disgust and shame at the daily published discreditable and nauseating evidence in the Dennistoun case. His Majesty asks you whether it would not have been possible to prevent the case coming into Court, either by a refusal of the Judge to try it, or by the joint insistence of the respective Counsels to come to an arrangement, especially when, apparently, the question at issue was one of minor importance.
The King deplores the disastrous and far reaching effects throughout all classes and on all ranks of the Army of the wholesale press advertisement of this disgraceful story.”
And so the 1926 Act came about, to protect those delicate flowers that were serving in the British Army, and the vulnerable working classes from having to read such filth (the upper class could of course, afford to buy the most extravagant French novels, and get their filth that way)

 

 

[I began pondering just how juicy Dennistoun v Dennistoun was, the case that changed the law and remains law ninety years on, and which got a King so disgusted and ashamed that he wrote letters complaining about it. So I had a look  - the salacious details from the trial are all here

http://alminacarnarvon.wordpress.com/2012/04/01/lady-almina-scandal-the-dustbin-case-dennistoun-v-dennistoun/

 

after two pages, the strongest I found was that the wife had been having an affair, her paramour nicknamed Tiger, and he called her "Brown Mouse"   -  it rather pales in comparison to what we know Prince Charles said to Camilla when they were both married to other people]
The major decision about the 1926 Act, prior to this case was Moynihan v Moynihan 1997, which coincidentally, also dealt with an application by the Queen’s Proctor to set aside a decree of divorce obtained by fraud. Sir Stephen Brown P heard the case and considered that section 1 was mandatory and did not give the Court a discretion to waive it in certain cases.

24. To return to Moynihan v Moynihan, Sir Stephen continued as follows:
“The point is made by counsel for the Attorney-General that this is a statute which is mandatory in effect; it does contain a criminal sanction and therefore must be construed restrictively. No point arises, as I have already said, as to the merits of any reporting of details likely to be made public in the course of the evidence. It is merely a question as to how that will be achieved.
The matter is of importance because the representatives of the press and the media are entitled to be clear as to what their duties are and what restrictions apply to them, and I have a great deal of sympathy with their position. For that reason the question has been raised at the outset of these proceedings. However, it seems to me that the court simply cannot construe the statute in a way which is contrary to the language of the statute itself. I have to rule that the Judicial Proceedings (Regulation of Reports) Act 1926 does apply to these proceedings. The Attorney-General has through counsel indicated that he would not be very anxious to institute criminal proceedings if by some oversight there was a breach of the strict letter of the law. That is not a matter which is before me, but it seems to me that until or unless Parliament were to intervene the Act does apply in this instance.”
25. Sir Stephen concluded with these words, which I read out in the present case to the journalists present in court:
“However, having said that, it is quite plain that there would appear to be ample scope in the context of the subparagraphs of subpara (b) for clear and full details of the proceedings to be given, though not necessarily a line-by-line account of what a particular witness says at any particular time.”

26. Sir Stephen seems to have been unenthusiastic about the application of the 1926 Act to the proceedings before him but concluded that section 1(1)(b) did apply. With equal lack of enthusiasm I am driven to agree. The logic of the analysis propounded in turn by the Law Commission Report, by the LCD Review and, finally, by Sir Stephen is, in my judgment, irrefutable.
That would seem to be problematic  in authorising the reporting of a case where transparency would be in the wider public interest, such as here. If there has been fraud on an industrial scale about obtaining divorces, then the Press ought to be allowed to tell us about it. But there’s no judicial discretion to relax s1(1) (b) of the 1926 Act.

But our President wouldn’t be the President if he didn’t have a sharp mind, and if there’s someone who is going to find a way on transparency, it is going to be him.

Firstly, he suggests that Parliament need to look long and hard about the 1926 Act – in our modern era, we are hardly short of titillation and scandal and we really don’t need to be mollycoddled and protected from things that might shock us from divorce proceedings. And particularly when the hearing itself is in Open Court, it seems a nonsense to prohibit the Press reporting the case. The days when one needed to go to either the tabloids or Soho if you wanted a fix of smut are long gone.
27. Though driven to this conclusion by the words Parliament chose to use in 1926, and reiterated in 1973, I find it almost impossible to believe that this is an outcome intended by Parliament. No doubt it is some imperfection on my part, but I do not begin to understand how the protection of public morality and public decency, or indeed any other public interest, is facilitated by subjecting the reporting of proceedings in open court of the kind that Sir Stephen Brown P was hearing in Moynihan v Moynihan and that I am hearing in the present case to the restraint imposed by section 1(1)(b) of the 1926 Act. On the contrary, this restraint would seem to fly in the face of the “fundamental, constitutional rule” (Scarman LJ’s phrase in In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, 93) previously articulated in Scott v Scott [1913] AC 417.
28. This is not, I venture to suggest, the only reason why Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book is justified

But even in the absence of that, a way has been found. We can publish, we will publish, we must publish…

36. Pending any review of the 1926 Act by Parliament are there any legitimate means of avoiding the impact of section 1(1)(b)? The answer is clear: only as allowed by one or other of the express provisions of section 1(4).
37. For convenience I set out section 1(4) again, but inserting additional lettering and creating subparagraphs for ease of reference:
“Nothing in this section shall apply
(A) to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or
(B) to the printing or publishing of any notice or report in pursuance of the directions of the court; or
(C) to the printing or publishing of any matter
(i) in any separate volume or part of any bone fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or
(ii) in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions.”
In the context of the present proceedings it is quite clear that neither (A) nor (C) can avail the media generally. But what of (B)?
38. This is not something which Sir Stephen Brown P considered in Moynihan v Moynihan. As I have already noted, he made no reference at all to section 1(4). Indeed, so far as I am aware, there has never been any consideration of the point.
39. The language of (B) is quite general. It excludes from the ambit of the 1926 Act the printing or publishing of “any notice or report in pursuance of the directions of the court”. Although I agree with Sir Stephen that section 1(1) is mandatory and confers no discretion, section 1(1)(b)(iv) plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience. As the Law Commission Report put it (para 17):
“The prohibition on publishing the evidence in divorce and similar cases, though it protects the public from being titillated by morning and evening accounts of the salacious details brought out in evidence, does not prevent it from learning those details in due course if the judge thinks it necessary or desirable to review the evidence in full in his judgment or summing up.”

40. So too, limb (B) of section 1(4) confers a similarly unfettered discretion enabling the judge to give “directions” in relation to any “notice or report”. The word “directions” is quite general; it is neither defined nor circumscribed. In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word “report” will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word “report” is apt to include a report of the proceedings.
It follows, that limb (B) of section 1(4) recognises a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence has been given
So, having devised a judicial discretion, with some creative thought, to allow a Judge to authorise the publication by the media of a report of the whole of the proceedings, is the President going to exercise this discretion in this case? (If you think that the answer is “No”, then I would like to talk to you about a bridge you might be interested in buying)

42. Should I exercise that discretion? In the circumstances of the present case there can, as it seems to me, be only one answer. Publication by the media of a report of the proceedings before me does not, given the nature of the proceedings, engage the mischief at which the 1926 Act is directed. On the contrary there is, in my judgment, every reason why the media should be free to report the proceedings – proceedings which, to repeat, were conducted in open court and related to what, as I have said, was a conspiracy to pervert the course of justice on an almost industrial scale.
43. I shall, therefore, make a direction that there be liberty to the media and others to publish whatever report of the proceedings which took place before me on 9 and 10 April 2014 they may think fit. I make clear that this direction is, and is to be treated as, a direction within the meaning of limb (B) of section 1(4) of the 1926 Act.

44. On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4).
We should, therefore, get chapter and verse on this whole story from the Press soon. I am a bit miffed that they get to know, in breach of a ninety year old act, whereas I, as a member of the legal profession who could legitimately get to know all the details by way of a published law report am in the dark, but such is life.

 

journalist’s right to private and family life with her source

A very interesting decision by the President sitting in the Court of Protection in Re G (an adult) 2014

 

http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

 

This is the 3rd judgment in relation to this 94 year old woman in the last two months. I’m going to try here, not to get too far into the controversy (I’m sure the comments will descend into that, but let’s TRY to focus on the principles and issues in THIS judgment)

THIS judgment relates to the application by the Daily Mail news group (ALN) to be joined as a party to the Court of Protection proceedings, to have an input into the questions to be posed to the expert, and ultimately to have the chance to cross-examine everyone. That’s a unique application, and the reasoning behind the decision is therefore interesting.

We do need SOME historical context though, so we need to know that the decisions being made by the Court of Protection are controversial, that G is 95 and that C her live-in carer is very actively campaigning about the controversial decisions and unfairness, part of that campaign includes involving the Press (the ubiquituous Mr Booker, and this time Ms Reid of the  Mail on Sunday). G has talked to those journalists, and at times been very keen to tell her story, at other times it is said that she finds the press involvement intrusive.  The Press want to report on the injustice that G and C may have suffered, and want to report as much as possible. In the second judgment, Cobb J ruled that there were doubts about G’s capacity to talk to the Press and that there needed to be an assessment of that and in effect a cease-fire on the Press talking to G until it could be established whether she (a) had capacity to do that and (b) if not, would it be in her best interests to do so.

 

If you want to skip to the chorus, it is HEARING THREE heading

 

Hearing one

The first judgment, 26th February 2014   was decided by Russell J.  http://www.bailii.org/ew/cases/EWCOP/2014/485.html

That case was brought by the Local Authority, who had become concerned about the influence that C (the carer) was having over G, and particularly that G was being influenced to change her will to the benefit of C.  (These allegations are all disputed by G)

This is the judge’s summary

 

  • In this case the local authority were under a duty to investigate the circumstances of an old and frail lady following reports regarding the behaviour of C and F and their influence over G, her home and her financial affairs and with respect to her personal safety from multiple sources including private citizens and professionals, from agencies providing care support and from a lawyer engaged by C to act for G (to change her will in C’s favour). The complaints came from G too; although she would later retract them. The obstruction met by the social worker when she tried to carry out her duties led to the attendance of the police more than once.

 

 

 

  • The local authority had no alternative but to visit on numerous occasions and to attempt to see G on her own. Anything else would have been a dereliction of their duty to her as a vulnerable person about whom they had received complaints about possible financial predation. Local authority staff must be permitted to carry out their duty to investigate reports relating to safeguarding unhindered.

 

 

 

  • The court has decided for reasons set out in full below that G lacks capacity under the provisions of the Mental Capacity Act 2005 and that further investigation needs to be carried out to decide how her best interests will be met and her comfort and safety assured. Her wishes and feelings will be taken into account at every stage as will her desire to remain in her own home. It is the court’s intention that every measure that can be put in place to secure her in her own home is put place. There is an equal need to ensure that she is not overborne or bullied and that she can lead her life as she wants it led.

 

 

 

  • All the expert evidence put before the court was of the opinion that G was a vulnerable person who lacked the capacity to conduct this litigation and to decide on her financial affairs and the disposition of her property without the assistance of an independent professional appointed by the court. There was disagreement as to the reason for the lack of capacity; the court decided, on the balance of probabilities, that it was due to a impairment of G’s mind or brain.

 

 

That judgment made reference to the press reporting of the case to that point, and that the press were present in Court

 

At the outset of the hearing it was drawn to my attention that there had been a very short article on Sunday in the press which, thankfully, did not name G. I have held these proceedings in open court but have restricted the publication of the names of the parties, and at this stage, of the local authority and the expert witnesses. This will be subject to review. I have done so to protect the privacy of G who is old, frail and vulnerable. She has repeatedly told me she wants no further intrusion in her life. The purpose of this order is to protect her privacy and to protect her from intrusion. As the case was heard in open court I have to make an order restricting publication of identification of G and the other parties to put that protection in place. Members of the public and the media were present in court through out the hearing.

 

G had a degree of dementia. She was assessed by an Independent Social Worker  (underlining mine)

 

 

  • Mr Gillman-Smith, the independent social worker (ISW) was instructed to carry out an assessment of capacity and the nature of any lack of capacity such as by undue influence. Mr Gillman-Smith was asked to prepare a report in which he was to ascertain the true wishes and feelings of G in respect of her care arrangements; her living arrangements and her property and affairs. He was asked to consider nine questions the last being whether any lack of capacity was due to G not meeting the criteria of the MCA or because of undue influence. Orders had been made prior to his instruction that C and AF leave the property and allow the assessments to be carried out.

 

 

 

  • On this occasion G had an advocate present in the person of D (D attended these proceedings and sat in court) who left and allowed Mr Gillman-Smith to interview G alone. G had difficulties in remembering her relatives; she could not remember the name or her relationship to her relative in the Netherlands. She was quite forthcoming about C and F describing C as bossy and herself as like the fly in the spider’s web, “and the spider eats you up.” C she indicated to be the spider.

 

 

 

  • G was at best ambivalent about C; as she said “she works well” but that she threatened to walk out and then F would look after her if G did not do what C was asking; she does house work “but what is in her mind?” G described her as a wolf in sheep’s clothing. She also said this of church members. C would not let her sleep during the day; she said C physically shakes her sometimes; dresses her and then undresses her replacing her clothes with the same ones. She said she was rough with her; She repeated that she was shaken and like the fly in the spider’s web. She repeated the belief that the court proceedings had been brought by H.

 

 

There was also an expert, Dr Lowenstein, who reported.  Again, underlining mine for emphasis

 

 

  • The evidence of Dr Lowenstein was undermined by his having no instructions; he said in his oral evidence that he deduced them from what was said to him by C. G herself was brought to see him in his place of work by C. How his report came into being is a matter of concern, it appears to have been instigated by C, who paid for it; where she got the funds to pay for it is not known. C was given Dr Lowenstein’s name by a third party active in family rights campaigns.

 

 

 

  • When Dr Lowenstein saw G she was over two hours late and had been travelling for some time, he then interviewed her in the presence of C for some 3 hours. Dr Lowenstein had no knowledge of the background to the case at all except that there were court proceedings and that C and G were saying she, G, did not lack capacity. He was introduced to C as G’s niece. When he discovered during his evidence that this was not the case and their relationship was not lengthy he was very surprised. Dr Lowenstein took no notes of what was said to him by C prior to his interviewing G and preparing his report and he could not remember what was said. He said that he fashioned his instructions from those given to Dr Barker and set out in his report.

 

 

 

  • His evidence was further undermined when it became clear that he had not, as he said, read and assimilated the documents disclosed to him by C (without leave of the court ) namely the social worker’s statement, the report of the ISW and Dr Barker’s report for, had he done so, he could not have failed to pick up that G, C and F are unrelated and have known each other for a relatively short time. He would have been better aware of the extent of the concerns about C’s influence and control over G. As it was, he accepted that it would have been better for him to interview G on her own, without anyone being present. This is a matter of good practice, a point that Dr Lowenstein accepted, conceding that it was all the more necessary when he realised that the close family relationship as it had been presented to him was false.

 

 

 

  • Dr Lowenstein brought with him some of the results of tests he carried out with G; tests which indicated some low results indicating a lack of ability to think in abstraction and decision making. He did not accept the need to think in abstraction to reach decisions but did accept that in order to make decisions one had to retain information and that there was evidence that G was not able to do so. I do not accept this evidence it is part of the essence of reaching complex decisions that one is able to think in the abstract.

 

 

 

  • Dr Lowenstein lacked the requisite experience and expertise to make the assessment of capacity in an old person as he has had minimal experience in working with the elderly, has had no training in applying the provisions of the MCA and very little experience in its forensic application, this being his second case. He is a very experienced psychologist in the field of young people, adolescents and children but has no expertise in the elderly. In the tests results he showed the court G consistently had very low scores but he frequently repeated that G was “good for a person of 94″; any tests in respect of capacity are not modified by age and must be objective. If, as appeared to be the case, he felt sympathy for her and did not wish to say that she lacked capacity that is understandable but it is not the rigorous or analytical approach required of the expert witness. When questioned about capacity he seemed to confuse the capacity to express oneself, particularly as to likes and dislikes, with the capacity to make decisions.

 

[The Court of course, did not HAVE to consider Dr Lowenstein's evidence at all, since it had been obtained without leave of the Court, but they did so]

 

Russell J’s conclusions on G’s capacity were these

 

  • In respect of financial matters there is evidence that G is unaware of her financial situation, of her income and expenditure. While there is good reason to believe from what she herself has told others, that this information is being kept from her and that she is fearful of C should she try to regain control, there is also evidence that she has difficulties in retaining information and formulating decisions as described by Dr Barker [46]. Both he and Mr Gillman-Smith considered the influence and controlling behaviour of C and F to make decision making even more difficult for G; it is obvious to this court from what she has said that she is at times almost paralysed by the threats regarding her removal to a care-home or to have F take over her personal and intimate care.

 

 

 

  • The impairment of G’s brain has affected her ability to retain information relevant to the decisions she has to make, as described by Dr Barker. She has difficulty in understanding the necessary information and to use and weigh the information. G could not remember the details of her will, and did not know the name of the advocate present when she saw Dr Barker or why he was there, despite having told Dr Barker his name the previous week. G referred to C and F as H and R (the previous carers) and expressed paranoid ideas about social services and previous friends from the church saying they were after what they could get from her.

 

 

 

  • There is evidence that G understands some of the information relevant to decision making, for example she well understands that she is frail and needs assistance with her personal care and house-work to be able to remain in her home and that C provides that care. At the same time G is either unaware of or unable to remember details of C’s and F’s backgrounds; she could not, for example, say how old they were. She also understands that C and F have taken control of her finances and has complained about being shouted at and physically shaken but she is unable to use the information to make a decision about her own welfare and care and allows them to remain in her home. This information about C and F living with her or not is relevant for the purposes of s3 (4) as it includes the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. The decision as to contact with others and whether or not she should see other people falls into this same category. She does not foresee that to allow visitors would have benefits including oversight of her care and treatment at the hands of others. I accept that the influence and controlling behaviour of C and F described by the witnesses and in the documentary evidence before the court will have further compromised the ability of G to make decisions and understand what is happening to her.

 

 

 

  • I have found, on the balance of probabilities, that G lacks capacity under sections 2 and 3 of the MCA 2005 and accordingly this case falls under the jurisdiction of the Court of Protection. I do not consider it necessary to rule on any application under the inherent jurisdiction.

 

 

A request was made for an order that C not exercise any of her powers under the Lasting Power of Attorney to manage G’s affairs and finances, and the Court agreed with this.

 

[Everything that the Judge decided is very hotly contested by those lobbying on C's behalf, and indeed the journalists who have spoken to G, but the judgment was not appealed]

 

Hearing two

 

This was before Cobb J on 26th March 2014   http://www.bailii.org/ew/cases/EWCOP/2014/959.html

 

This hearing was particularly about whether G had the capacity to give interviews to journalists or be interviewed with a view to stories being reported.  G remained living in her own home, with C as her carer (the only real change from the previous hearing was that C was no longer in a position to manage G’s finances)

Cobb J begins by remarking that members of the Press are present and that they are welcomed. He does pass comment on the reporting of the Russell J decision

 

  • I should like to emphasise that I recognise that access to the press and freedom of parties to litigation to communicate with the press engages powerfully the competing rights under Article 8 and Article 10 of the European Convention of Human Rights. There is, in my judgment, a legitimate public interest in the reporting of proceedings in the Court of Protection concerning our vulnerable, elderly and incapacitous. There is a separate legitimate public interest in the court protecting the vulnerable, elderly, and the incapacitous from public invasion into their lives. These are, in stark terms, the competing considerations at play.

 

 

 

 

  • Of note, but not specifically influential in my decision-making today, is the fact that some of the press reporting of these proceedings thus far, as is apparent from the three reports which I have read, does not provide a balanced account of this case, nor does it faithfully or accurately, in my judgment, reflect the substance of Russell J’s judgment or the evidence heard by the court. That is highly regrettable.

 

Cobb J felt that the issue of whether G had capacity, and if not, whether it was in her best interests to talk to the Press required some specialised assessment and evidence

 

  • Having heard these submissions, I invited all counsel to consider whether the first question which I should in fact be considering in this case on these issues is whether G has capacity to communicate directly with the press now. Given the press interest (it is, after all, here both in the form of a court reporter and as an interested party, represented) the sooner there is a capacity assessment available on that issue the better. After an adjournment for parties to take instructions, the London Borough of Redbridge indicated that it accepted this approach and refined its position to seeking an adjournment of today’s application in order to commission a further issue-specific capacity assessment by Dr. Barker. It was said that this could be completed within two weeks; it proposed that the matter should then be relisted for consideration. It invited me to make interim orders, as holding orders, in the meantime.

 

 

 

 

  • This approach was supported by the Official Solicitor in all respects.

 

 

 

 

  • Those orders were opposed by C, who asserted that there was no proper basis on which I could or should go down this route. F associated himself on this issue (as on all issues) with C.

 

 

 

 

  • It is self-evident that the question of G’s capacity to engage with members of the press (with a view to sharing her story publicly) has to be assessed properly and expertly before the court could reach any informed view as to whether it is in G’s best interests that she should in fact do so. In those circumstances, I propose to accede to the application to adjourn the Local Authority’s application for substantive relief in this respect, and shall re-list this application on the first available date, which is 2nd May 2014, before Russell J. I shall give the Local Authority leave to instruct Dr. Barker to undertake the capacity assessment specifically directed to the question of whether or not G has the capacity to communicate, and engage, with members of the press, with all the implications of so doing.

 

 

 Having made the decision to get expert evidence from Dr Barker on those issues, the only issue remaining was what should happen in the interim – should the Press be talking to G, or should those legitimate journalistic desires to get the story be put on hold until the Court could decide whether G had capacity to make that decision for herself?

 

  • I have “reason to believe” that G does indeed lack the capacity in relation to decisions concerning communications with the press.

 

 

 

 

  • There is no doubt that in relation to section 48(b) the question of her discussions or communications with the press is indeed a matter (perhaps unprecedented) on which the Court of Protection can be invited to exercise its powers under the 2005 Act.

 

 

 

 

  • As to section 48(c), I have to do my best to weigh up on the evidence available to me whether it is in G’s best interests that I should make such an order.

 

 

 

 

  • On the one hand, there is evidence before the court that G indeed wishes to communicate with the press. That evidence is provided not only by G herself, but also by Ms Reid, a journalist who has now met with G on one occasion at her home. Furthermore, in a discussion with Miss Moore, G is reported to have said that she was “happy” that the article written by Ms Reid had indeed been written: “… it let them know what they do to the elderly“.

 

 

 

 

  • Of course, at present the press is circumscribed in what they can report of what G says about the proceedings. In my judgment there is indeed a powerful case for permitting G to communicate with the press at will, the court being reassured (pending the specific capacity assessment) that at present there are justified limits on what the press can report of this process and of matters germane to G’s private and family life.

 

 

 

 

  • On the other hand, it is clear from the attendance notes helpfully provided by Miss Moore that at other times G has expressed less than positive views about the involvement of the press in her life. She has said: “The newspaper trying to say I am crazy when I am not crazy…” She has gone on to say, when asked about the article in the Daily Mail: “I don’t know how happy I would be about that. I don’t want anybody from the press. They put what they like. They put in details that are not correct.” She also told me that she valued her privacy.

 

 

 

 

  • There is evidence, but I make no finding about it, that G is being used as the instrument of others to pursue publicity in relation to her particular situation, and that she is not exercising her free-will at all. I specifically reference the fact that she has, in discussions with Miss Moore, graphically described herself as the fly “in the spider’s web … the fly cannot get out of the spider’s web“. She has confirmed elsewhere and to others that C is “the spider“.

 

 

 

 

  • There is a concern that while Ms Reid has indicated to me that she has made but one visit to G’s home, others may have visited or repeatedly phoned G. G told Miss Moore, on her most recent visit yesterday:

 

 

 

She said reporters are always at her home or phoning her“.

 

That said, she added:

 

She said she wants people to know what is happening to her and that it has gone all around the world already.

 

And

 

I asked her if she remembered the name of anyone she had spoken to. She said she did not.

 

  • I bear in mind, when considering G’s best interests in this regard, that there is now clearly signalled a likely application by Associated Newspapers to relax the Reporting Restriction Order. The press will argue for a wider ability to report on G and her situation.

 

 

 

 

  • It seems to me that, weighing these matters one against the other, it is not in G’s best interests for her to be able or permitted to communicate with the press at this stage; she has expressed at least ambivalent feelings, it appears, about the engagement of the media. I am further concerned that any private information which G vouchsafes to a journalist at this stage may, of course, be exposed to more public examination in the event that the Reporting Restriction Order is subsequently varied or discharged. Until the court can take a clearer view about G’s capacity to make such relationships with the press it is, in my judgment, clearly in G’s best interests that I should make an interim order that she should not make such communications. It follows that the injunctive order sought by the London Borough of Redbridge, shall be granted (in paragraph 3 of the draft order as earlier recited) until 2nd May.

 

 

  • I shall require Dr. Barker carefully, as he has in the past, to perform the functionality test in relation to this difficult question, inviting him to consider the implications for G’s decision-making, on the basis alternatively that (a) the Reporting Restriction Order remains in place, and/or (b) the Reporting Restriction Order is varied or discharged. Plainly, G is provided with not insubstantial protection from invasion into her private and family life for as long as the Reporting Restriction Order is in place. But that protection may be dismantled if the court, undertaking the competing Article 8 and 10 review, reaches the conclusion that the Reporting Restriction Order cannot or should not stand in its present form

 

 

 

Readers may also be interested in the paragraphs dealing with C taking G to protest at Parliament.

The other issue was that C was resistant to social workers visiting G

 

  • I am satisfied on what I have read that it is indeed necessary for G to be monitored as to her welfare in her home at present. I wish to make clear that there is no evidence whatsoever but that the home is well-maintained, comfortable, and that G has adequate food and nutrition. But, as I have indicated in my judgment (and as is clear from the judgment of Russell J), there is considerable scope for the view that C, and to a lesser extent F, are not just failing to meet G’s needs but are actually abusing her within her home. C and F, it should be noted, strenuously deny this. Monitoring in those circumstances in the interim period is, in my judgment, vital. I do not believe that the neighbourhood team proposed by Ms Hewson would adequately or appropriately discharge the function of monitoring as I envisage it should be delivered. I was advised that the neighbourhood team:

 

 

 

were not in a position to act as a substitute for Social Services … she” [that is a representative PCSO from the Redbridge Neighbourhood Team] “…did not think they had the resources to commit to twice-weekly visits … the Neighbourhood Team did not want to get drawn into court proceedings but would agree to resume visits to [G's home] on an ad hoc basis … the team could not commit to a weekly visit but would ‘pop in every so often and have a chat with G for ten minutes’.”

 

 

  • For those reasons it is self-evident that the Neighbourhood Team could not discharge the responsibility which I regard as important in order to safeguard G’s welfare within the home.

 

 

 

 

  • I therefore propose to accede to the application of this Local Authority which will require C and F to facilitate visits by the London Borough of Redbridge social workers, going forward.

 

 

Again, this is all hotly contested, but the judgment has not been appealed

 

Hearing Three

 

This one was before the President, on 1st May 2014  http://www.bailii.org/ew/cases/EWCOP/2014/1361.html

Apologies in advance, some of this is going to have to get technical.

There were two issues raised

1. Was Ms Reid, journalist for the  Mail on Sunday, in any trouble?  And latterly, did she have an article 8 right to private and family life that allowed her to visit G and have a say in her life?

 

2. Should Associated Newspapers Limited ( the Mail) be joined as a party to the proceedings, as per their application, and could they have an input into the questions to be put to Dr Barker following Cobb J’s judgment above?

 

The first is thankfully pretty short. Cobb J of course said that until the next hearing when Dr Barker’s report was available, journalists should not interview G, that it was not in G’s interests to talk to the Press and that “until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings … “

What happened, allegedly, after that judgment was given, was that Sue Reid from the Daily Mail spoke with G and in effect said that she was not allowed to interview her anymore, but would visit her as a friend. (I say alleged, because of course the Court has not made any findings or heard any evidence, and this assertion might be complete nonsense. One has to be fair.  All I can see is that from THIS judgment, the President does not say that the allegation is denied. It could well have been, but it just did not get recorded in the judgment. So it is an allegation only.

 

  • On 2 April 2014, solicitors acting for the Official Solicitor wrote a letter to ANL which, after referring to Cobb J’s judgment, continued as follows:

 

 

“After the hearing Ms Reid was heard outside court telling G that as the judge had stopped Ms Reid contacting her, Ms Reid would have to make social visits to G instead. Clearly this would be completely inappropriate in view of the judgment of Cobb J. The court heard that Ms Reid has only met with G at her home on one occasion and we assume that this was for the purpose of publishing her article dated 20 February 2014. We are not sure why Ms Reid would seek to make social visits to G

We write to clarify that Ms Reid will not seek to circumvent the Order of Cobb J by making social visits to G. Please respond urgently confirming that Ms Reid will not attempt to visit G before this matter returns to Court on 2 May 2014.”

ANL replied on 3 April 2014. Its response prompted the Official Solicitor’s solicitors to write again on 8 April 2014:

“We write further to your letter dated 3 April 2014. The Official Solicitor remains concerned about your client’s proposed actions and note that you have not provided an assurance that Miss Reid will not seek to visit G before the matter is again before the Court on 2 May 2014. We refer you specifically to paragraph 40 of the Judgment of Mr Justice Cobb dated 26 March 2014.

We enclose a sealed copy of the Order of Mr Justice Cobb dated 26 March 2014. In view of this please can you confirm whether your client has made any social visits to G since the hearing on 26 March 2014 and whether she intends to make any visits in the future?”

In the interests of fairness, I shall report that whether those allegations were true or not did not trouble the President, since even if they were true, he didn’t think they raised any concern that should worry the Court.

  • As I remarked during the hearing, I do not understand the basis upon which these letters were written. The complaints they contain are made by reference to Cobb J’s judgment. But nothing that Ms Reid was alleged to have done amounted to a breach of anything contained in Cobb J’s order. If the basis of complaint was that Ms Reid’s conduct was somehow rendered improper by the terms of the declarations which Cobb J had made, there is in law no foundation for any such contention: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, paras 118-122. The frailty of the argument, whatever it be, is demonstrated by the revealing use of such phrases as “completely inappropriate” and “seek to circumvent”. The approach set out in the letters is somewhat reminiscent of the approach on which I had occasion to comment in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 115-120.

 

So there you go, whether Ms Reid had said this or not, it would have been fine if she had said it, and it would have been fine if she had in fact gone to visit G as a friend.  [I might myself have had a different view as to the true purpose of those visits, but what is sauce for the goose is sauce for the gander - the Judge has said it, nobody has appealed it, so the issue is settled]

 

On the secondary issue, whether Ms Reid had article 8 rights in relation to G

I deal finally with the separate argument based on Ms Reid’s asserted Article 8 rights. There are, in my judgment, two short answers to this. In the first place, there is no application by Ms Reid; the application is by ANL. Secondly, and more fundamentally, for reasons I have already explained, it makes no difference whether the argument is put on the basis of Article 10 or Article 8. Neither provides any foundation for the grant of relief of the kind being sought by Mr Wolanski.

 

[In a case that is already peppered with D and G, and F and H, the Judge explained all of the article 8 issues by use of X andY, which makes it hard going. In effect what he says is that G can have an article 8 right that she wants to spend time with Sue Reid, but if G doesn't want to spend time with Sue Reid (or lacks capacity and the Court have to rule on her best interests) then Sue Reid doesn't have an article 8 right to access to G. It is more complex than that, I've reduced it to a manageable form because there are real people reading this blog]

 

The big stuff then – should ANL be made a party?  Having already dragged X and Y into the alphabet soup, we broaden out by introducing here S (the subject – here G) and J (the journalist, here Sue Reid).

  • Where no relief going beyond the existing reporting restriction order is being sought against ANL, the issues are quite different. There is, for example, no application for any order restraining ANL from publishing any information it has already received from either G or her carers. Nor, despite some of the rhetoric deployed by ANL, is there anything in Cobb J’s order or in the relief now being sought by the local authority which bears upon ANL’s freedom to report any court proceedings. From ANL’s perspective, leaving the existing reporting restriction order on one side, this is, as Mr Millar correctly submits, not an ‘imparting’ case, it is at best a ‘receiving’ case. And, as he goes on to submit, the problem which therefore stands in ANL’s way is the Leander principle.

 

 

 

  • The starting point is that if S, as a competent adult, declines to disclose information to J – if S, as it were, shuts the door in J’s face – then that is that. S is deciding not to allow J into S’s ‘inner circle’. S’s right to be left alone by the media, if that is what S wishes, is a right which, as I have already explained, is protected by Article 8 (see Re Roddy) and it trumps any rights J may have, whether under Article 8 or Article 10. J cannot demand that S talks to him and, as Leander shows, J’s reliance on Article 10 will avail him nothing. From this it must follow that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.

 

  • But what if, as here, S – in the present case, G – arguably lacks capacity? At this point I can usefully go to the analysis in E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council [2005] EWHC 1144 (Fam), [2005] 2 FLR 913, paras 57-59.

 

 

 

  • In that case, the Official Solicitor, as Pamela’s (E’s) litigation friend, sought an injunction to restrain the broadcasting of a film featuring Pamela which Pamela wished to be broadcast. I summarised the proper approach as follows (para 59):

 

 

“in a case such as this there are in principle three questions which have to be considered:

(i) Does Pamela lack capacity? If yes, then

(ii) Is it in Pamela’s best interests that the film not be broadcast? If yes, then

(iii) Do Pamela’s interests under Art 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under Art 10.”

 

  • The first question for the court goes to capacity. There are two reasons for this: first, because the Court of Protection has jurisdiction only in relation to those who lack capacity; second, and more fundamental, because if S does have capacity then the decision as to whether or not to impart information to J (or, if the information has already been imparted by S to J, the decision by S as to whether or not to bring proceedings against J) is exclusively a matter for S.

 

 

 

  • Assuming that S lacks capacity the next question for the court is whether or not it is in S’s best interests to impart the information to J (or, if that has already happened, whether or not S’s best interests require that an injunction is granted against J). This is because best interests is the test by which the Court of Protection or, as in E, the High Court exercising its inherent jurisdiction, takes on behalf of S the decision which, lacking capacity, S is unable to take himself.

 

 

 

  • Pausing at this point in the analysis, and for essentially the same reasons as in relation to Article 8, it follows in my judgment that the identification by the Court of Protection of S’s best interests does not give rise to any justiciable issue as between J and S. Nor is there any justiciable issue as between J and S in relation to the question of S’s capacity.

 

 

 

  • As Mr Millar puts it, and I agree, the reason for this is simple: before J’s right to receive information from S arises, S must, to use the language of Leander, “wish or be willing” to impart the information to J. Where S lacks capacity, what the court is doing when deciding whether or not it is in S’s best interests for the information to be imparted to J (or, if already imparted to J, whether or not it is in S’s best interests for it to be imparted by J to others), is doing what, if S had capacity, S would be doing in deciding whether or not to impart the information to J (or, as the case may be, in deciding whether or not to seek an injunction to restrain J imparting it to others). As Mr Millar points out, J would have no right or interest in relation to such a decision by S, if S had capacity. Why, he asks rhetorically, should it make any difference that, because S lacks capacity, the very same decision is being taken on behalf of S by the court. I agree. Nor can J have any right or interest in the prior decision by the court as to whether or not S lacks capacity. Ms Burnham characterises the capacity issue as a “gateway” to giving effect to what she says is J’s right to receive information from S if she were willing to impart it. So it may be, but the argument breaks down, both on the Leander point and because it overlooks the true nature of what is happening when the court decides on behalf of S where S’s best interests lie.

 

 

 

  • Of course, the court’s best interests decision in relation to S is not necessarily determinative. If the court decides that it in S’s best interests for information to be imparted to J (or, if that has already happened, that S’s best interests do not require the grant of an injunction) then that is the end of the matter. There is no conflict between S’s best interests and J’s rights. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by Article 10, the court moves on to the third and final stage of the inquiry. But at this stage S’s best interests are not determinative. There is a balancing exercise. The court is no longer exercising its protective jurisdiction in relation to S but rather its ordinary jurisdiction under the Convention as between claimant and defendant. Accordingly it has to balance the competing interests: S’s interest under Article 8 (as ascertained by the court), and therefore her right under Article 8 to keep her private life private, and J’s rights under Article 10. And at this stage, if relief is being sought against J (or against the world at large), J’s Article 10 rights are directly implicated. So J will be entitled to be heard in opposition to the order being sought.

 

 

 

[That's very considered and dense stuff - basically the Judge is saying that people get party status to litigate if there is a conflict between them and the other parties that gives right to an argument that the Court has power to resolve and needs to resolve. There isn't that here.  ANL have legitimate interest in any application for Reporting Restriction Order or injunctions against them or their staff, but they don't have a legitimate interest in the argument between G, C and the Local Authority.  They might be interested IN IT, but that's not the same thing]

 

  • ANL’s first application is to be joined as a party. Mr Millar and Ms Davidson submit that the application is misconceived. I agree.

 

 

 

  • In the first place, and as I have already explained, the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. So there is no reason for ANL to be joined.

 

 

 

  • Secondly, and following on from this, ANL cannot bring itself within either CoPR 2007 rule 75(1), upon which Mr Wolanski relies, or within rule 73(2). Rule 73(2) permits the court to order a person to be joined as a party “if it considers that it is desirable to do so for the purposes of dealing with the application”, and rule 75(1) permits “any person with a sufficient interest [to] apply to the court to be joined as a party to the proceedings.” Mr Wolanski’s application was put forward on the footing that ANL has a “sufficient interest” within the meaning of rule 75(1). In my judgment it does not.

 

 

 

  • The meaning of these provisions was considered by Bodey J in Re SK (By his Litigation Friend, the Official Solicitor) [2012] EWHC 1990 (COP), [2012] COPLR 712, paras 41-43, a case relied upon by Ms Davidson, in a passage that requires to be read in full. For present purposes I need refer only to Bodey J’s statement (para 41) that “sufficient interest” in rule 75(1) “should be interpreted to mean “a sufficient interest in the proceedings” as distinct from some commercial interest of the applicant’s own” and that “an applicant for joinder who or which does not have an interest in the ascertainment of the incapacitated person’s best interests is unlikely to be a “person with sufficient interest””, that (para 42) the “clear import” of the wording of rule 73(2) is that “the joinder of such an applicant would be to enable the court better to deal with the substantive application”, and that (para 43) the word “desirable” “necessarily imports a judicial discretion as regards balancing the pros and cons of the particular joinder sought in the particular circumstances of the case.” I respectfully agree with that approach. In my judgment, ANL does not, in the relevant sense, have a “sufficient interest”. Nor is its joinder “desirable.”

 

 

 

  • Finally, even if ANL’s rights under Article 10 were to be engaged (as they plainly are in relation to the reporting restriction order), that would not give ANL a “sufficient interest” in the proceedings, as distinct from the discrete application within the proceedings, nor would it make it “desirable” to join ANL as a party to the proceedings. On the contrary, it would be highly undesirable for ANL to be joined, because as a party it would be entitled to access to all the documents in the proceedings unless some good reason could be shown why it should not, and the grounds for restricting a party’s access to the documents are very narrowly circumscribed: see RC v CC and another [2014] EWHC 131 (COP). Nor, as I have pointed out, would there be any need for ANL to be joined as a party. It would, as Mr Millar concedes, be entitled to be heard as an intervener.

 

 

 

  • I should add that this is an area of the law where there has been, initially in the Family Division and more recently also in the Court of Protection, very extensive forensic activity involving the media for at least the last twenty-five years. I am not aware of any case, nor were either Mr Millar or Mr Wolanski with their very great experience of such matters able to point me to any case, where a journalist or media organisation has been joined as a party to the proceedings, as distinct from being permitted to intervene. This is surely suggestive of a well-founded assumption that joinder is as unnecessary for the protection of the media as it is undesirable from the point of view of the child or incapacitated adult whose welfare is being considered by the court.

 

 

 

  • In the light of my decision in relation to ANL’s first application, its two other applications fall away. In the first place, if it is not to be joined as a party, what is the basis of its claim either to see Dr Barker’s full report or to ask him questions? There is none. Moreover, and as I have explained, Dr Barker’s report does not go to any justiciable issue as between ANL and G, or between ANL and anyone else. If some relief is sought against ANL, then the application will have to be assessed on its merits, having regard to whatever evidence is relied upon, whether in support of or in opposition to the application. That is the point at which ANL’s Article 10 rights are engaged. And at that point ANL will be able to contest the application, whether by challenging the evidence relied on by the applicant or by adducing its own evidence.

 

 

 

  • I should add this, in relation to the insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court. There is no basis for this. Quite apart from the rejection by those to whom this comment appears to be directed of any factual foundation for what is being said, this cannot be a ground for being allowed to participate in the proceedings. Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves. Moreover, if it is to be said that the Official Solicitor is, in some way, not acting appropriately in G’s best interests, then the remedy is an application for his removal as her litigation friend, not the intrusion into the proceedings of a self-appointed spokesman for G.

 

 

 

(I will conclude by saying that whilst I too think that the ANL application was misconcieved in law, I can see why in practice they made it.  IF their story is (and it pretty much is) that the Court of Protection is a wicked terrible body, interfering with people’s freedoms and ignoring what dear old G wants, then I can see why they think that the Court of Protection DECIDING whether G should talk to the Press is something of a conflict of interest.  Imagine for a moment that it had been Maria Miller’s decision and it had been solely up to her whether any of the Press were allowed to report her expenses scandal. As the ANL think that the expert is going to be set up to say “Don’t let G talk to the Press, it isn’t good for her” they wanted to have an input into what he was asked and to have the chance to cross-examine him if that’s what he said.  That somewhat ignores the fact that C is already a party and is able to have that input and cross-examine Dr Barker, but I can honestly see why the Mail made this application from an emotional and journalistic perspective.   They couldn’t have got a judge who was more keen on transparency and openness though, so if they couldn’t persuade the President, it was a hopeless application)

I will add that I think that Sue Reid genuinely believes that what is happening here is an outrage and a miscarriage of justice, and that she is reporting what C and G are saying to them with absolute sincerity.  It is absolutely right that she follow her journalistic instincts and that if there is something rotten in the State of Denmark that this be exposed.

 

 

 

 

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