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Rubric’s revenge

I wrote yesterday about the murkiness and lack of clarity of what a parent can or can’t say post proceedings, particularly in a case where they were successful and the Court found that the LA had treated them badly.

And most, if not all, of the control of that  was pinned on the “Rubric”, the preamble wording under which the Judge releases an anonymised transcript.

Well, lo and behold, here is another one, in the case of Re E (A Child) 2013 (which is a really absorbing case, and I will come back to it, but it will take a while to fully absorb)

http://www.bailii.org/ew/cases/EWHC/Fam/2013/2400.html

This judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of the family must be strictly preserved.

This does not prevent the parents from identifying themselves and the child in the event that they wish to discuss and/or publicise what has happened to them and their family in the course of these proceedings and beforehand.

Now, I am both a lawyer, and a pedantic git, and a lover of labyrinthine legal language, but I have to confess that as a result of those two paragraphs, I would not be certain whether the parents definitely could go on This Morning to talk about their experiences in this case using their real names.

It seems to me that the second paragraph says that they can (in fact, I am fairly sure it does, but fairly sure isn’t great when you are wondering whether what you are about to do is or isn’t a contempt of court), and the second paragraph specifically says that nothing in the first paragraph prevents it, but now I don’t see the point of the first paragraph.

Does the first paragraph (in light of the second) mean nothing more than “nobody else can OUT these parents, but if they choose to OUT THEMSELVES, they can” ?   Or does it in effect mean nothing more than “You can publish this transcript of judgment, but you can’t publish it in a way that takes out all the “E” “M” and “F” and replaces those with the real names?”

Or something else entirely?

My gut feeling is that the family, much as with the Websters, are probably permitted by the rubric to publicise the facts of their case, using their own names, if they so wish.

Having said that, whilst the paragraphs suggest that the parents can go onto This Morning and name themselves and the child and talk about the case, paragraph one looks to me like it still bites on the producers of “This Morning” or the editor of the newspaper deciding whether to actually publish the interview in which they do it. Paragraph 2 doesn’t permit the producers or editors to ignore para 1. I don’t think that can be what was intended, but again, if I were being asked by the producers of This Morning whether they were good to go on running the peace, I’d have to say that I think they are okay, if the parents themselves identify their names, but I’m not sure. I definitely wouldn’t put up a caption of the parents names or introduce them – the parents would have to say their own names before Pip and Holly use them.

[For the avoidance of doubt, my own view would be that they SHOULD be able to do this – where the child is as young as this, and they were exonerated of all allegations of harm and there are important lessons for professionals to learn, they should.  Only by doing that will a case of this kind, where “Child rescue” overrode “Family Preservation” get the same sort of media attention as say the Daniel Pelka case where things may have gone wrong in the other direction. If we only get media reporting of the State failing to act, and not of the negative consequences of the State taking action, the debate and policy arising from the debate can be badly skewed]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

6 responses

  1. Just the same as Munby’s guidelines ! first you cant name names and then yes you can!
    The lawyers say no cotradiction but the man in the street (if he manages to struggle through the legal jargon would say that there definitely was !
    By the way SUESMINDSif you w&ant an example of a baby snatched at birth for risk of emotional abuse try ringing [NUMBER EDITED OUT by Suesspicious Minds] ! As an added outrage the mother was breastfeeding at the time and when she presented the following case with L.J.Munby’s judgement it was swept aside by the judge saying in effect “Munby can say what he likes but this is my court” !

    Citation: BLD 160403280; [2003] EWHC 850 (Admin).
    Hearing Date: 15 April 2003
    Court: Administrative Court.
    Judge: Munby J.

    Abstract.

    “Per curiam. If the state, in the guise of a local authority, seeks to remove a baby from his parents at a time when its case against the parents has not yet even been established, then the very least the state can do is to make generous arrangements for contact, those arrangements being driven by the needs of the family and not stunted by lack of resources. Typically, if this is what the parents want, one will be looking to contact most days of the week and for lengthy periods. Local authorities also had to be sensitive to the wishes of a mother who wants to breast-feed, and should make suitable arrangements to enable her to do so, and not merely to bottle-feed expressed breast milk. Nothing less would meet the imperative demands of the European Convention on Human Rights.”…

    Published Date
    16/04/2003

    • Actually Ian, I as a lawyer am not saying “no contradiction” – I’m saying pretty loudly that the law about what a parent can and can’t say following a judgment is far too vague, and given what is at stake, it is not fair for them to have to either guess what is okay and what is not, or to try to go back to Court (a venue I am sure they are sick of) to spend months wrangling about it. And this becomes far more of an issue as more cases will have published judgments. It seems to me that where a parent, like in the Re K case, or the one I blogged about yesterday, has serious allegations made against them by the State and prove those allegations wrong in Court, there is a legitimate public interest in those persons being able to speak out about it.

      I edited out the phone number – I don’t feel comfortable publishing people’s phone numbers for any Tom Dick or Harry to ring.

      • The phone number was just for you suespiciousminds since you implied you had not met a case founded purely on “risk of emotional abuse”.I should have made that clear.Vague is not the word I woud use about the new guidelines and the latest case quoted.Misleading,contradictory,and written by a complete idiot are descriptions that readily spring to mind……………….

      • Sorry Ian, I thought I had made it plain, but I will clarify. I personally have never run a case purely on emotional harm, although I am aware that such cases have been brought. I think the publication of anonymised judgments will be a very important step in ascertaining whether your experience of such cases being pravalent or my experience of them being rare, or somewhere in the middle is right.

  2. Hello Suspiscious minds

    Thank you for this excellent blog!

    I am trying to track down a particular case citation, which is at least five years old, involving a case in which an LA was challenged re the minutes of a child protection conference, in respect of the inclusion of particular information. The case involved domestic violence, and possibly honour based violence, towards the mother from the father. It was revealed at the child protection conference that the mother had previously had another relationship, I can’t recall and it isn’t really relevant whether this was before or after the arriage, r perhaps she had even . Been sexually assaulted, the issue was a genuine fear of violence from the father if he found this out. The mother I think brought a case and win against the LA. but the details might be wrong. I wonder if you could help with a link? Many thanks !!

    • I THINK it is this one

      http://www.bailii.org/ew/cases/EWHC/QB/2005/102.html

      W V (1) WESTMINSTER CITY COUNCIL (2) ANCA MARKS (3) JAMES THOMAS (2005)

      [2005] EWHC 102 (QB)

      QBD 10/02/2005

      DEFAMATION – HUMAN RIGHTS – LOCAL GOVERNMENT

      LIBEL : MALICE : MISTAKE : QUALIFIED PRIVILEGE : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : REPORT PUBLISHED AT CHILD PROTECTION CASE CONFERENCE : SOCIAL WORKERS ACTING IN GOOD FAITH IN ATTEMPT TO CARRY OUT LOCAL AUTHORITY’S DUTY : LOCAL AUTHORITIES : SOCIAL WORKERS : STATUTORY DUTY : FREE AND FRANK COMMUNICATION : UNSUBSTANTIATED CONCERNS : LACK OF EVIDENCE : BREACH OF STATUTORY GUIDELINES : HONEST MISTAKE : REPORT FOR CHILD PROTECTION CONFERENCE : INTERFERENCE WITH RIGHTS : BALANCING NEEDS : JUST SATISFACTION : S.7 HUMAN RIGHTS ACT 1998 : S.8 HUMAN RIGHTS ACT 1998 : ART.8 EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 : S.17 CHILDREN ACT 1989 : CHILDREN ACT 1989 s.17 : HUMAN RIGHTS ACT 1998 s.7, s.8, s.6

      Where a local authority had pleaded qualified privilege in defending itself and its social workers against a claim in defamation, the relationship between the social workers was an established one requiring free and frank communication on all relevant questions, and the fact that the information in the words was not verified could not take the case outside qualified privilege unless the defendants were deliberately publishing what they knew to be outside official guidance known to them. Although the publication was an interference with the claimant’s rights under the European Convention on Human Rights 1950 Art.8 , monetary compensation was not required to afford him just satisfaction.

      The claimant (W) brought a libel action against the defendant local authority and social workers (M and T) alleging that a report prepared by M, supervised by T, for a child protection case conference in relation to the child of W’s partner, contained defamatory material that was published to those at the conference. The court had determined ((2004) EWHC 2866 (QB) , Times, January 7, 2005) that the defence of absolute privilege was not available to M and T. The remaining issues were whether the defence of qualified privilege was available and whether W had a claim under the Human Rights Act 1998 s.7 and s.8 . M and T accepted that the words should not have been published in the way they were, but argued that it had occurred through a misunderstanding. W submitted that (1) communication of the words complained of was not pursuant to M’s and T’s duty and not within an established relationship and so did not attract qualified privilege. W submitted that there was no public interest in social workers ignoring statutory guidance and being legally immune and that the words were irrelevant because they were unverified; (2) W submitted that the publication was an interference with his rights under the European Convention on Human Rights 1950 Art.8 .

      HELD: (1) The relationship between M and T, and those to whom they published, was an established one plainly requiring free and frank communication on all relevant questions, and the fact that the information in the words was not verified could not take the case outside qualified privilege unless M and T were deliberately publishing what they knew to be outside official guidance known to them, Kearns v General Council of the Bar (2003) EWCA Civ 331 , (2003) 1 WLR 1357 applied. The instant case was exceptional in that it could not be inferred from their absence of belief in the truth of the words that there had been malice, Horrocks v Lowe (1975) A.C. 149 distinguished. They were acting in good faith and attempting to perform the council’s statutory duty under the Children Act 1989 s.17 to the child by communicating with those having a common and corresponding duty. In a delicate situation the public interest required some latitude for honest mistake, X (minors) v Bedfordshire (1995) 2 AC 663 at 750 applied. (2) Just because a claim was defeated by a defence of qualified privilege did not mean that a claim under s.7 of the 1998 Act for breach of Art.8 of the Convention would fail, Spring v Guardian Assurance (1994) CLC 766 applied. The information was sensitive and highly damaging and there had been no need to reveal it as they did to W, or in the presence of the mother. M and T had not properly addressed their minds to the question of balancing W’s needs against the child’s. The publication was an interference with W’s rights under Art.8 of the Convention. However, there was no presumption of damage and no actual damage was alleged to have occurred. As a public vindication was impossible in the circumstances, the court would grant an appropriate declaration in W’s favour. Nothing more was required following the apology from the council and T and damages under s.8 of the 1998 Act were not required to afford just satisfaction to W. The violation of W’s rights was not grave.

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