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
Mr Justice Peter Jackson had given a decision about his plans as to what could or could not be published, in advance of that re-hearing and what role the Press could play.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.
- 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.
- The key authorities to which I am referring are a criminal case in the House of Lords, Re S (Identification: Restrictions on Publication)  UKHL 47;  1 AC 593, a private law family case in the Court of Appeal, Clayton v Clayton  EWCA Civ 878;  1 FLR 11 and a public law child case in the High Court, Re Webster; Norfolk County Council v Webster and Others  EWHC 2733 (Fam);  1 FLR 1146.
- 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  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  to  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.
- 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.
- 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’.
- 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  EWHC 3269 (Fam);  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.
- 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.
- 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.
- 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.
- 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.