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Appeal about the transparency in the Poppi Worthington case

 

At first glance, this looked a bit  “Let me just fix this stable door, it is SO much easier without the horse being in here getting in the way and standing on my foot“, but the appeal was actually heard in November  BEFORE the re-hearing of the fact finding, and it is just that we’ve only today had the judgment itself.

I know that some people were curious about how much material was allowed to be reported (for example Poppi’s name, and the name of the father) and some were curious about the ‘live’-tweeting aspects and the Press being present during the hearing itself.

Re W Children 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/113.html

Mr Justice Peter Jackson had given a decision about his plans as to what could or could not be published, in advance of that re-hearing and what role the Press could play.  The Guardian appealed that decision, supported in part by the father. The mother and Local Authority were neutral.

The Court of Appeal were asked specifically to consider what role the welfare of the children had to play in a decision about reporting and press attendance. They bravely duck that question  (to be fair, I think it ends up being a conflict between some  authorities one of which is a House of Lords case, so it has to be resolved ultimately by the Supreme Court). Given that the Guardian’s case was largely based on the degree of openness and transparency here being inimical to the welfare of the other children, that decision was pretty fatal to the appeal.

  1. During the hearing of the appeal we accepted the jointly argued approach of counsel and that, in turn, was the basis upon which we came to the decision on the appeal which we announced at the conclusion of the oral hearing. In the process of preparing this written judgment, however, I have come to the preliminary view that there may be a conflict, or at least a tension, between the apparently accepted view that welfare is not the paramount consideration on an issue such as this, on the one hand, and Court of Appeal authority to the contrary on the other hand. As this present judgment is a record of the reasons for our decision announced on 23rd November 2015 and that decision was based upon the children’s welfare not being the paramount consideration, I do no more than flag up this potential point which, if it is arguable, must fall for determination by this court on another occasion.
  2. The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton [2006] EWCA Civ 878; [2007] 1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam); [2007] 1 FLR 1146.
  3. Although, in my view, a reading of those cases may give rise to a potential point relating to the paramountcy of the child’s welfare, which, as I have stated, must fall for determination on another occasion, it is not necessary to go further in this judgment and consider the matter in any detail.

 

Counsel for the Press association (the always excellent Caoilfhionn Gallagher) set out the case for openness and transparency in this case very well  – and it really explains why so much was allowed to be reported in this case.

a) In the unusual circumstances of this case, the judge’s decision on publicity and reporting is entirely justified for the reasons that he gave after giving careful thought to the submissions of each party;

b) In general, there is a strong principle in favour of open justice which has long been regarded as integral to protecting the rights of those involved in court proceedings, and as essential to maintaining public confidence in the administration of justice;

c) The President of the Family Division has drawn attention to the importance of transparency in the context of family justice in Practice Guidance Transparency in the Family Courts: Publication of Judgments [2014] 1 FLR 733 and in a 2014 consultation document Transparency – Next Steps;

d) The Practice Guidance identifies two classes of judgment, (i) those that the judge must ordinarily allow to be published and (ii) those that may be published; the present case falls into category (i) and there is therefore a strong presumption that the final judgment should be published in due course;

e) There is already an extremely strong public interest in transparency being applied to this case at this time;

f) The Appellant’s acceptance that paragraph [1] to [100] of the July 2014 judgment should be published, which contains a summary of the medical evidence, renders illogical her opposition to the publication of the remaining paragraphs (albeit in a redacted form);

g) There is already substantial publicly available information regarding the injuries that Poppi sustained prior to her death and the fact that her father had been arrested with respect to an allegation of sexually abusing Poppi. Reference is made to the clip of media reports provided to the court;

h) Daily news reporting is justified against the backdrop summarised in (g) above and is justified in this ‘highly unusual’ case. In any event the judge will retain some measure of control over reporting through the ability to impose a retrospective embargo if some particularly sensitive material is disclosed in court;

i) The challenge relating to the judge giving judgment in public is misconceived as the judge did not make any such direction. His proposal to sit in private, with the media in attendance, prior to publishing the judgment was entirely proportionate in the circumstances.

 

The Court of Appeal concluced that this was unusual, but that Poppi was  ahighly unusual case, given that so much was already within the public domain. They largely upheld Mr Justice Peter Jackson’s decision, albeit limiting the amount of medical information that was to be published from the original finding of fact judgment (you may recall at the time that the judgment published initially had such huge chunks redacted from it that one couldn’t see what father was alleged to have done and it was left to astute reading to see that taking a sample swab from father’s penis suggested something very dark. )  They also said that tweeting from Court would have to wait until the end of the day, when the Judge could consider anything unusual arising from the evidence and give directions about it.

 

  1. Ms Gallagher accepts that daily reporting of a child protection case was unusual, but she submits that this has now become a highly unusual case in terms of there being a second fact finding hearing in circumstances where a good deal about the case is now in the public domain.
  2. During the hearing the court asked for more detail of the arrangements that the judge had put in place to maintain some control on the material that could be reported by press representatives who were attending court. The judge’s proposal was that if, for example, a witness were to give unexpected evidence, the disclosure of which might unnecessarily breach the Article 8 rights of the children, or more generally cause them unnecessary harm, the court could embargo that part of the evidence from that which could otherwise be reported. The wording of the judge’s order on this point was that ‘such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing’.
  3. In considering the appeal on this point, the starting point must be that the introduction of a facility for daily reporting of an ongoing fact finding hearing in a child protection case is indeed highly unusual. It is not profitable to debate whether this is or is not the ‘first’ such case. For my part, in a slightly different context, I recall that there was widespread national media reporting day by day of the sad case of Re RB [2009] EWHC 3269 (Fam); [2010] 1 FLR 946; other judges will no doubt be aware of other cases. Be that as it may, no party submits that Jackson J was acting outside his powers by permitting daily media reporting. For the reasons that I have given at paragraph 37, such a course was plainly within his discretion.
  4. In circumstances where, as the Appellants have accepted, the final judgment will be published in due course, the issue of daily reporting relates to the quantity and timing of reporting rather than to reporting the facts of this case as such in principle. It is a matter that calls for a proportionate approach, over which a trial judge is entitled to exercise a wide margin of discretion; as I have stressed, in the present case that is particularly so with respect to this trial judge at this stage in this trial process.
  5. Although I must confess to having a feeling of substantial unease at this degree of openness at the start of an unpredictable fact finding exercise, I am clear that it is simply not possible to hold that Jackson J is wrong in his analysis of the issue and his decision to grant media access to this degree. I am, however, sufficiently concerned about the laxity of the terms of the order dealing with daily reporting as it is currently drawn to stipulate that a further sub-paragraph be added to that part of the order in the following terms:

    ‘such reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, in order to ensure that the court has had an opportunity to consider whether any such additional directions are required.’

    The purpose of this new provision is, hopefully, self-explanatory in that it allows for stock to be taken at the close of the court day so as to identify any aspect(s) of the evidence which should be subject of embargo before any reporting, of any nature, can take place.

  6. The grounds of appeal relating to whether or not the judge should sit in public to deliver his judgment were not pursued and therefore fall away.
  7. For the reasons that I have given, I would therefore allow the appeal to the very limited extent of (a) requiring the removal of reference to any of the medical evidence from the edited 2014 judgment, and (b) inserting a tighter requirement in the court order relating to the control of daily reporting.

 

 

 

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Poppi Worthington – the Judge publishes his decision about what happened to her

 

I think I’ve written nearly as many blog posts about Poppi Worthington’s case as I have about Re D, yesterday’s case.

The most recent Poppi Worthington piece is here

https://suesspiciousminds.com/2015/11/26/poppi-worthington-the-long-awaited-judgment/

 

For those who don’t know, Poppi died in December 2012.  The Judge in care proceedings made findings about the causation of her injuries, and what also raised media attention was the Guardian’s list of lessons that ought to be learned or failings by professionals.  Those were all finally aired in the judgment above.  The Coroner  considered the case  in October 2014 and left the causes of the child’s death blank. The police decided not to charge anyone. Father as a result of some of the medical evidence obtained in the police investigation asked the family Court to reopen their findings and look at it again.  And all the way through this, the Press have been asking to be able to publish the judgments, and have had to wait until this.

I have to say that the November judgment contained a peculiar line, that the police took a forensic swab from father’s penis, which led to some obvious worries about what it might have been suspected had happened to poor Poppi, but I didn’t want to speculate about it given that the family were going through a re-run of the family Court fact finding hearing.

The father had obviously hoped and believed that the re-run of the finding of fact hearing would clear his name.

I’m afraid that for me, the detail of the case is too grim for me to want to rake over here. For those who want to read it, it is here.

F v Cumbria County Council and M (fact-finding no 2) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/14.html

 

The conclusion of the fact finding was this:-

  1. For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for the bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.
  2. In conclusion, stepping back and reviewing the evidence as a whole, I arrive at the same view as I expressed at paragraph 142 of the previous judgment: Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
  3. My finding at paragraph 152 was that the father perpetrated a penetrative anal assault on Poppi, either using his penis or some other unidentified object. That remains my conclusion. Some witnesses at this hearing have expressed the view that penetration with a penis would have been expected to cause more obvious injuries. That may be so, but the evidence does not exclude any one of a number of distressing possibilities. As I said before, it is not possible to reconstruct the exact sequence of events that led to Poppi’s collapse without a truthful account from the father.

 

Reporting restrictions still apply on naming Poppi’s siblings. The Press access to this particular hearing was unprecedented, giving them access to documents and reports and even allowing for daily reporting and tweeting about the ongoing case provided it was done after the end of the Court day. The Judge thanked the Press for their responsible behaviour.

 

  1. The ability of the media to report a hearing of this kind on a day-to-day basis is unusual and the arrangements here are probably unprecedented. At the outset, ground rules were discussed and established, as follows:

    1. The reporting restriction order made on 11 July 2014 and varied on 14 January 2015 remains in effect. Copies have been provided.

    2. The hearing is taking place in private. Accredited media representatives may attend and are asked to sign in on a daily basis.

    3. Any media representative who attends will be provided with the full 2014 judgment, the medical reports, the minutes of the experts’ meetings, the schedules of agreement and disagreement and the summary of medical evidence. These documents are for information, to assist with understanding the course of the hearing, and they are not for publication. They can be removed from court but they are to be kept safe and are not to be copied or given to others.

    4. The media may report daily on the proceedings on these conditions:

    (1) Such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing.

    (2) Reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, so that the court has had an opportunity to consider whether any additional directions are required.

    (3) Until the publication of the final judgment, nothing is to be reported that might directly or indirectly indicate the findings that the court made in March 2014.

    5. The final judgment, when available, will be published. At that point the full 2014 judgment will also be published.

    6. Any queries about the ground rules should be addressed to court staff who will consult with the parties and with the court as necessary.

  2. A copy of these rules was placed in the civil jury box where, as it happens, the media sat during the hearing. On the first two days, eight media representatives attended, with the number reducing on subsequent days. On a few occasions, issues about what could or could not be published were raised by a party or a journalist, and these were easily resolved. The opening of the hearing was extensively reported, with less coverage thereafter.
  3. I repeat what I said at the outset of the hearing:“I would like to emphasise that the unusual package of arrangements for this hearing arises from the application of existing law to the exceptionally unusual circumstances of this case. These arrangements do not establish new law or practice in the Family Court and they are not intended to set a precedent for other family cases.”
  4. I nonetheless record that the conduct of the journalists in court was entirely professional and their presence did not adversely affect the hearing; on the contrary, their attendance may be said to have reflected the seriousness of the occasion. The media’s ability to observe the court going about its work in this particular case, and to report and comment on the outcome and the process, has in my view been a valid exercise.

 

Where does that leave things (assuming there’s no appeal)?  Well, almost all of the national press are reporting that the Judge found that Poppi died having been molested in a vile way, and that the person who molested her was her father.

The police have made a decision not to prosecute  (that could potentially be reviewed by the CPS  – though given the press reporting, there might be issues of fair trial now, and of course there are the flaws identified in the last judgment about the process. ).

This particular father, because the child’s full and real  name is in the public domain and the Press took such an interest in the case, is probably now known to everyone in his local community and all of them will have a view about the case, yet he has not been convicted in a criminal court or even charged.  His name is actually within the judgment and naming him is not prohibited.

It is hard, of course, to have any sympathy for someone found to have done what this father was found to have done. It is a very tough test of transparency though – it does feel right that the Press were able to dig into this case and report it accurately and properly, but we do end up with a father who the police did not think it was right to charge being named and shamed in the Press as having done something that every person reading it would think was truly monstrous.

 

The Reporting Restriction Order is plain, and will apply to this blog and commentators. Don’t put anything in your comments that would breach it.

A REPORTING RESTRICTION ORDER IS IN FORCE. IT PROHIBITS THE IDENTIFICATION OF THE SURVIVING CHILDREN OR THE MOTHER, OR THEIR HOMES, SCHOOLS OR NURSERIES. IT DOES NOT PREVENT THE NAMING OF POPPI, OR HER FATHER, OR THE REPORTING OF THE CIRCUMSTANCES OF HER DEATH. THE JUDGE HAS GIVEN PERMISSION FOR THE JUDGMENT (AND ANY OF THE FACTS AND MATTERS CONTAINED IN IT) TO BE PUBLISHED ON CONDITION THAT ALL PERSONS, INCLUDING REPRESENTATIVES OF THE MEDIA, MUST ENSURE THAT THE REPORTING RESTRICTION ORDER IS STRICTLY COMPLIED WITH. FAILURE TO DO SO MAY BE A CONTEMPT OF COURT.

 

Poppi Worthington – the long-awaited judgment

Poppi was a little girl, aged 13 months, who died in December 2012.

 

Within care proceedings relating to Poppi’s siblings, a finding of fact hearing took place as to what caused her death and whether it meant any risk for those siblings. That took place in March 2014 and has not been published until this week. An inquest also took place and the Coroner described her death as “unusual and strange”.  Part of the reporting of the inquest discussed the existence of the finding of fact hearing and in particular that the Guardian in the case had prepared a schedule of professional failings.

 

Of course the Press and public would be very interested in those failings, and if there are lessons to be learned, one would want to learn from them.

The police decided in March 2015 not to charge the father with any criminal offences as a result of Poppi’s death (it taking 2 1/2 years to get that decision) and as a result, the father sought to overturn the finding of fact hearing.

The Judge therefore decided that whilst allowing a re-hearing of the finding of fact hearing, it would be potentially prejudicial to publish the results of the March 2014 hearing and have the Press comment on it. A decision was made that part of it would be published in the Winter of 2015.

 

(All of that is discussed here)

 

https://suesspiciousminds.com/2015/04/27/poppi-worthington/

 

And the (heavily redacted) fact finding judgment is now published

 

Cumbria County Council v M and F 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4886.html

 

The redactions really remove any scope for discussion of what happened to Poppi and why the father came under suspicion and what conclusions were made in March.  But it does outline the professional failing identified by the Guardian and endorsed by the Court.

 

What there ISN’T, at least within the published judgment, is any evidence or claim that social workers had failed to protect Poppi before her death or should have seen it coming. The criticisms are instead about the failings of various agencies to properly investigate it and whether the siblings had not been properly protected. Still very important, but at this stage, there’s nothing within the judgment that suggests that Poppi is another Baby P or Daniel Pelka (where professionals ought to have foreseen the risk to her and failed to act to keep her safe).   Until P’s death, none of the other children was subject to statutory intervention by the local authority and the mother cared for them all satisfactorily. There were no concerns reported by health, education or social agencies. 

 

What were the professional failings afterwards though?

 

  • 85. The observations below are made in the context of these good practice protocols and regulations, which appear to have had no effect in this case:

    The national multi-agency protocol: Sudden Unexpected Death in Infancy (SUDI), known as ‘the Kennedy Protocol’. This provides a framework for the collaborative investigation of all unexpected deaths in infants and children up to the age of 2 years. The emphasis is on finding the cause of an infant’s death, incorporating both medical and forensic investigation. Responsibility for oversight of the operation of the protocol rests with the Local Safeguarding Children Board.

    • Cumbria LSCB’s own complementary protocol at the time of P’s death: Sudden and Unexpected Deaths in Children and Young Persons. This guidance, since updated, applied to the sudden and unexpected death of a child under the age of 18 years.
  • The Local Safeguarding Children Boards Regulations 2006, which set out the criteria for holding serious case reviews.
  • 86.Cumbria Constabulary
  • It can come as no surprise that, well over a year since the death of this child, no decision has been taken about a criminal prosecution. As a result of the police view that Dr Armour may have jumped to conclusions, a decision was then taken by senior officers not to investigate until her report was received. Due to the extreme delay in that process, there was no real investigation into P’s death for nine months. Such minimal investigation as thereafter took place was inevitably affected by the delay and by actions not taken at an earlier stage. Instances may include:
    • Items at hospital not preserved for forensic analysis: ambulance sheet, paramedic’s gloves, hospital stretcher sheet.
    • Items at home not preserved for forensic analysis: P’s pillow, her clothing (pyjama bottoms if any), the parents’ sheet, any possibly penetrative item, the father’s computer.
    • Scene not secured: loss of P’s last nappy despite the presence of police officers.
    • Decision by DI S and DCI F not to visit the home, despite it being nearby. According to the national protocol, a senior officer should immediately attend the home to take charge of the investigation and ensure that evidence is intelligently preserved.
    • No reconstruction with the parents at home, so that their accounts could be understood and investigations focused.
    • No forensic medical examination at the time of death. Swabs were not taken until post-mortem. Under the Cumbria protocol, police are entitled to take anal swabs automatically. Delay in taking swabs may prejudice the forensic analysis.
    • No engagement of a paediatrician with specialist knowledge of investigating sexual abuse, in order for there to be a physical examination of the child, a viewing of the home and a report for the pathologist.
    • Dr Armour’s initial views were not clearly passed on to the local authority for safeguarding purposes.
    • The parents were not interviewed formally until August 2013.
    • No analysis of either parent’s mobile telephone or Facebook accounts.
  • Samples were not sent for analysis until after receipt of Dr Armour’s report. For example, the swabs from the father’s penis, taken on 12 December 2012, were not sent for analysis until 2 August 2013.
  • No statements taken from any witnesses (paramedics, nurses, doctors, family members) until September 2013, at which point three statements were taken (from the ambulance crew and from Dr B).
  1. Many of these matters were canvassed during the evidence of DI S, who led the enquiry at the outset, and she was driven with evident reluctance to accept a number of failings in the inquiry. Evidence was not taken from DCI F, the senior officer with overall responsibility for the investigation. He may therefore have further information to provide.Cumbria County Council
  2. Given the history, it can likewise come as no surprise that, well over a year after P’s death, the family still awaits a decision about the future of the other children.
    1. At the outset of the proceedings, the local authority was directed to file a statement explaining its actions. This led to a full account from the Assistant Director of Children’s Services. In it, she accepts that
    • Legal advice should have been taken at the outset, and certainly before the family returned home. In fact, the first time that legal advice was taken in this troubling and extremely serious case was on 30 August 2013. Even this was reactive (to the parents’ arrest) and even then there was no decision to issue proceedings for another eight weeks.
  • Proceedings should have been initiated as soon as it became clear that P had suffered injury prior to her death. Had that happened, the court would have been able to get a grip on the matter and ensure that proper investigations were carried out much nearer to the time of P’s death. The local authority shares responsibility with the police for the fact that this did not happen.
  • Even when legal advice was given on 23 September that care proceedings should be issued, a decision of the Legal and Placement Panel two days later rejected this advice. Another month passed before proceedings were issued in reaction to the mother’s rejection of supervision.
  1. I would add that the children should have immediately been medically examined and that in S’s case, a skeletal survey should have been performed. Furthermore, the local authority’s expectation that the mother should supervise the father in relation to this number of children was in my view wholly unrealistic, not to say unfair to her.
  2. In the result, the children were returned home without any effective child protection measures being taken. Fortunately there is no evidence of them suffering harm in the ten month period before they were removed from the parents’ care. The Coronial investigation
  3. It is not clear, and I have not asked, how HM Coroner proceeded in this matter. Concern has rightly been raised about the gross delay in production of the pathology reports. Cumbria’s protocol expects that within 48 hours of the post-mortem, the pathologist will provide preliminary findings to the Coroner. In this case, Dr Armour said that she wanted to have every piece of information before she committed herself. In particular, she was awaiting the results of routine histology on the leg bones. She did not accept the suggestion that the delay was unacceptable. Bearing in mind the interests of the surviving children, that was not a practical approach, though she was not to know that the consequence of her silence was that no other investigation was taking place.
  4. I have no information about the decision of the coroner to release for burial the body of a child who died in unexplained and possibly suspicious circumstances when a pathology report had not been received, a decision precluding the possibility of a second post-mortem. The NHS Trust
  5. In the light of the expert evidence, and having heard from the paramedics, doctors and nurses who were present on 12 December, it is apparent that they did everything they possibly could to resuscitate P. It is sadly likely that by the time she came into their hands she had already died.
  6. Unfortunately, Dr B, the locum paediatrician, had only been employed at the hospital for less than three weeks. He was not aware of either the national or local protocols for infant deaths. He was therefore unable to lead the forensic medical investigation in an appropriate manner.
  7. Neither Dr B nor, more pertinently, Dr W, completed the workbook provided as part of the Cumbria protocol. This would have ensured a methodical examination at the time of death and the timely taking of swabs.The Local Safeguarding Children Board
  8. Regulation 5 of the Local Safeguarding Children Boards Regulations 2006 sets out the functions of LSCBs. This includes the requirement to undertake reviews of serious cases in specified circumstances. Regulation 5 provides that a review must be held where abuse or neglect of a child is known or suspected and the child has died. This is mandatory: see page 66 of the statutory guidance in “Working together to safeguard children” (March 2013). Moreover, a review may be held even when the mandatory requirement does not apply.
  9. A sub-group of the Cumbria Local Safeguarding Children Board met on 4 February 2014. The meeting took place at police headquarters and was attended by six persons. The minutes show that DCI F, the principal investigating officer, played a prominent part, although he invited another member to lead the discussion. The conclusion was that the criteria for a serious case review were not met, although the matter would be reviewed in six months following the outcome of the family proceedings and any criminal proceedings.
  10. It will certainly be appropriate for the conclusion of the subgroup of the LSCB to be independently reviewed as it would appear to conflict with the regulations. Collective responsibility
  11. While I reach no conclusions, consideration by others of the above matters may lead to the view that P’s death did not receive the professional response to which she and her family were entitled.

 

 

The re-hearing has either just finished or is currently before the Court. With that in mind, no speculation please about what might have happened to Poppi or who may have been responsible if anyone.  The Court will reach and publish those conclusions and the Court is in possession of all of the facts, whereas we only have a sliver of them.