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Judgment on Reporting Restriction on the Butler/Gray case

This was the request of the Press to be able to have access to material from the family Courts relating to Ellie Butler, Ben Butler and Jennie Gray and to be able to report it. They made the application following the conviction of Mr Butler for murder and the conviction of Ms Gray (having pleaded guilty) to lesser counts

 

London Borough of Sutton v Gray and Others 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1608.html

 

It is worth noting that at the start of the hearing, the Local Authority and Guardian were in support of release of materials and publication (subject to some minor redactions for anonymity) but during the course of the hearing became concerned, as the Judge was, that publication might result, if an appeal were lodged, in a mistrial claim for any criminal re-hearing

 

“It would be horrific if these parents were to avoid a retrial on the basis of publication at this stage”

 

[Despite everyone’s desire for transparency and information and a proper public debate, I think all of us can agree that we would not want Mr Butler to be freed on a technicality – as opposed to convincing a fresh jury of his innocence]

 

The Press application was put in this way

 

  • A number of principles are, as Mr Bunting suggests, applicable. Open justice is at the heart of our system of justice and vital to the rule of law. It promotes the rule of law by letting in the light and allowing the public to scrutinise the workings of the law for better or for worse. There is a particular need, I altogether accept, for the media to act as a public watchdog in care proceedings in the Family Court because of the intrusion or potential intrusion into the family lives of those concerned and what could be a serious interference by the state in family life.
  • Accordingly, while there is no presumption in favour of open justice, in private proceedings concerning the welfare of children there is a fundamental need for the press to play a scrutiny role in family proceedings. That is a matter enshrined within the President’s Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230. All of that I altogether accept.
  • The foundation of the jurisdiction to restrain publicity in a case such as this is derived from rights enshrined within the European Convention on Human Rights. A balancing exercise is required between competing rights. The balancing exercise as between Articles 8 and 10 has been addressed in a number of authorities; they are well described within paragraph 17 of the application. There is no need for me to read them into this judgment. I accept Mr Bunting’s analysis.
  • It is suggested that the proceedings before Eleanor King J are of the utmost public interest. There should therefore be, it is said, a strong presumption in favour of publication. There is an important public interest in the press being able to follow and understand those proceedings for the reasons described by Mr. Bunting; and there is a profound public interest in the press being able to investigate and, as necessary, report the varying approaches of the Family Court to the care proceedings relating to Mr. Butler and Miss Gray. These care proceedings, it is said, and I accept, place the Family Court under a particular spotlight and cry out for public exploration.
  • Mr. Bunting then goes on to say that in so far as the judgment and order of 30th June 2014 have been withheld from the press to protect against injustice in the criminal proceedings, this justification falls away upon the verdict given yesterday at the Old Bailey by the jury.

 

 

The Judge, Mrs Justice Pauffley, was rightly concerned with the prospect of an appeal being lodged and if successful it being argued that disclosure of material which a jury would not ordinarily see being used as a technical argument for that Mr Butler could not get a fair trial at any such re-hearing.

 

    1. My starting point is the President’s guidance of 16 January 2014 – ‘Transparency in the Family Courts: Publication of Judgments’ and particularly paragraph 19 where he makes clear that in deciding whether and, if so, when to publish a judgment, a judge shall have regard to all the circumstances, the rights arising under any relevant provision of the European Convention, particularly Article 6, respect for private and family life, Article 8 and Article 10 freedom of expression. The guidance then, materially, continues thus, “And the effect of publication upon any current or potential criminal proceedings”.
    2. All the signs are that the criminal processes involving Ben Butler are not yet over. Yesterday, as is reported on the BBC website, after the guilty verdict, Mr. Butler shouted out, “I’ll fight for the rest of my life. Unbelievable” before adding, “I want to be sentenced now so I can fight in the appeal court”. He added, “I’ll fight for ever to prove this wrong. My daughter was jumping in the house. I am 100% not guilty.” Miss Gray added, “Big mistake. Spend another ten years proving you wrong”. Those expressions of view, albeit uttered in the heat of the moment and immediately after the verdict, give some solid indication that the criminal proceedings are likely to extend to the making of an application for permission to appeal and to a submission that his conviction should be overturned.
    3. The reporting of King J’s judgment, were I to give permission to release it to the media, is likely to be very extensive indeed. It will be, if I am able to forecast anything, front page news. I am fully aware of the extent of public interest in the circumstances of this case, the background, the extent to which the Family Court has been involved as well as to the many legal processes leading to yesterday’s verdict.
    4. It is instructive, to my mind, to recall the manner in which there was reporting of the very sad circumstances of Khyra Ishaq’s pitiful life and terrible death in the aftermath of her mother’s conviction for causing that child’s death in about February 2010. There was, in the immediate aftermath of the criminal trial widespread front page, very prominent and extensive references to the judgment given many months, even perhaps years, previously by Eleanor King J.
    5. There is a very high likelihood, indeed it is inevitable, in my assessment, that there would be the most widespread and extensive reporting of the content of King J’s judgment in this instance. Would there be repercussions for the criminal appeal’s process? Mr. Bunting invites me to significantly doubt that there would be prejudice. He says there is a long way to go before any retrial. It is unclear as to whether one would be ordered. There may be a slender prospect, he argues, and it may be in the distant future and it is insufficient to outweigh the public interest in favour of publication.
    6. I would suppose that three options exist for the appeal which Ben Butler made clear yesterday he is intent on pursuing: firstly, that it is dismissed; second, that it is allowed and the conviction quashed; and, third, that the appeal is allowed to the extent that a retrial is ordered. I have no means of forecasting, no one has any means of predicting with any degree of accuracy, or at all, what will happen in connection with the proposed appeal. If there is any potential for a retrial then it seems to me that for exactly the same reasons as underpinned the decision of Eleanor King J not to release her judgment in 2014, I must do likewise.
    7. It is useful to reflect upon the words of Mr. Justice MacDonald in the case of H v A No. 2 [2015] EWHC 2630 when he said, albeit in a slightly different context:

“In the age of the Internet, … today’s news story no longer becomes tomorrow’s discarded fish and chip wrapper, but rather remains accessible in electronic form to those with the requisite search terms …”.

  1. We are, I would observe, in a very different environment to that which existed even ten years ago. There is the potential for prejudice to, even the derailing of, the criminal process. That, to my mind, is manifest. The risk may be, as Mr. Bunting suggests, small but the consequences for the criminal process could be incalculable.
  2. One scenario, quite obviously, is that Mr. Butler might seek to argue that consequent upon the publicity accompanying the publication of Eleanor King J’s judgment, which is bound to contain a great deal more material than is currently in the public domain, he could not be assured of a fair trial. That possibility, the potential for that eventuality, inevitably compels me to dismiss this application.
  3. One thing though should emerge and be made abundantly clear. The arguments in favour of the release of King J’s judgment are powerful and strong. They will remain so. I fully expect that so soon as the criminal appeals’ process is at an end a full, suitably redacted version of the 30th June 2014 judgment will be published. That is my judgment.

 

 

Unless an appeal is brought on fresh evidence, a criminal appeal must be lodged within 28 days of conviction (if appealing against conviction) or 28 days of sentence (if appealing on sentence), so the appeal window expires at the end of July.  If Mr Butler does not lodge such an appeal, I would expect the Press to revive their request to see the judgments and to be able to publish stories that provide detail from them.  If an appeal IS lodged, then the publication and release of the material will have to wait until that appeal runs its course, which could be many months.

Frustrating, particularly given how much material came into the public domain after conviction (for example Mr Butler’s previous convictions, which a jury would not normally see or hear about) but absolutely nobody would want this case to be determined on a technicality. If Mr Butler does appeal and gets a re-hearing, it must be decided on the facts of the case and its merits, not by a technicality.

 

 

 

Ellie Butler drawing together some strands and discussion

This post is a collaboration between myself, Lucy Reed of Pink Tape, Sarah Philimore of Child Protection Resource and Louise Tickle who is a freelance journalist – you have probably seen her pieces on family Justice in the Guardian.

 

You can also read it here

Ellie Butler – drawing together some strands and discussion

 

Several family lawyers have been discussing this case on Twitter, and it was suggested to us that it might be helpful to draw together a document with some important questions and our answers. We won’t necessarily agree on everything, but even our disagreements might help with the debate.

This post is a collaborative post to which a number of people have contributed. We would welcome others responses to the specific questions we’ve set – email info@transparencyproject.org.uk with your replies.

We are Lucy Reed (barrister and author of the Pink Tape website www.pinktape.co.uk)  Sarah Phillimore (barrister and author of the Child Protection Resource website – for a discussion of the principles the courts must apply when trying to find out in family cases how a child has been hurt, see this post), Andrew Pack  (local authority lawyer and author of the Suesspicious Minds website www.suesspiciousminds.com) and Louise Tickle, freelance journalist writing for the Guardian newspaper.

On the evidence that Hogg J heard at the time, what do we think about the finding that the father didn’t cause the shaking injury to Ellie?

Andrew Pack:

When I read the judgment about the shaking injury at the time, it looked to me like a solid and fair analysis of very complicated medical evidence. What causes that sort of head injury in infants is very complex and very controversial, and medical science is moving on all the time. Doctors in this field are talking about it all the time – a decade ago, the medical consensus was that these injuries could NEVER be caused by birth trauma and now we now that birth causes these bleeds on the brain (albeit to a lesser extent) in 50% of births. Reading the Court of Appeal decision in the criminal case, where the conviction was overturned, they highlighted some really unusual aspects about this particular case which would have given more doubt than is usual even in this very controversial field – Hogg J then had added to that the fresh medical evidence about the cyst, and whether that would have been a causing or contributory factor.  I think that the Court had the benefit of the best experts around, arguing both sides, and all of the evidence, and making the finding that the LA had not proved that it was more likely than not that father shook the child was the only safe one to make.  One might argue that the Judge did not give sufficient weight to father’s criminal history of violent behaviour and whether that might have tipped the balance if it was very finely balanced. Reading her analysis, I don’t think that she viewed the evidence as that finely balanced.  She was, on the evidence, confident that father had not done this.

Sarah Phillimore:

I agree with this. I don’t think the Judge can be faulted for how she treated this evidence.

Lucy Reed:

I also agree. The judge heard a large number of the most eminent experts in their respective fields, in some cases several from a single discipline – ophthalmologist, ENT, paediatrician, radiology, neuro-radiology, neuro-surgery…She also heard the evidence of the parents, which she took a particular view on – she thought the father convincing. The law is : if, having heard all the evidence, she was unpersuaded that it was more likely than not that the injuries were inflicted she should determine the infliction not proved – and exonerate the father of those acts.

What do we think about the exoneration speech and letter?

Andrew Pack:

As a matter of law, once the Judge has found that the LA didn’t prove their case about the shaking injury the legal finding is that father did NOT do it. Professionals working with the family would have been told of that legal finding and that the father could not be treated as a risk as a result of the head injury/shaking injury. The Judge clearly felt that father HAD been exonerated and that he had NOT caused the head injury, and her language reflected, I think, her view that the removal of Ellie and his imprisonment had been a miscarriage of justice. From the Serious Case Review, I think you can see that the strength of language that she used made professionals feel that they were being given the message of ‘back off’ and the parents felt that they were bullet-proof. That may have made professionals feel that when they were encountering behaviour that they found concerning they were powerless to act. I think it was a bit too strong at the time but not wildly out of order, and of course with the benefit of hindsight, it was far too strong and could have been couched more carefully – that there were other residual issues about the father that still presented a risk.

Sarah Phillimore:

This is the issue that troubles me. Yes, if there was no evidence that he caused the injuries in 2007 on either the civil or the criminal standard of proof, then as a matter of fact, no one could say that he did. But this was a man with – as I understand it – a clearly documented history of violence, who had served a three year prison term? ( I think – I have not been able to re-read the 2012 judgment as I understand it was removed from publication on line and has not been returned.). I do not know how that history was presented or what weight the Judge put on it. But, in the light of that history, and that the LA were clearly justified in being worried about the initial injuries caused to Ellie when she was a baby, I do not understand why the Judge thought it was appropriate to remove the LA from further oversight of this case and require that a letter setting out Butler’s ‘exoneration’ was sent to other agencies. The Judge found he had NOT hurt Ellie when she was a baby. She did not make findings about his propensity for violence and his criminal history. It may not have been appropriate to do that, particularly if the LA had not relied on these issues to prove their case. BUT. They were clearly part of the background and should, in my view, have given pause for thought before going down any route of widely publicised ‘exoneration’.

This issue also brings into focus some more general concerns about the standard of proof in care proceedings being the ‘balance of probabilities’. I appreciate the arguments that it is not always compatible with the need to protect children, if we insist on proof beyond a reasonable doubt. However, my concerns arise about the subsequent status achieved by a ‘finding of fact’ on the balance of probabilities. The courts are clear that a binary system operates; something is true or it is not. Therefore a finding of fact against a parent can determine the whole course of the proceedings. Parents are required to ‘accept’ the findings with little time for reflection, or risk the LA – and the court – ruling them out entirely as lacking ‘insight’. On serious and life changing matters, I do not feel comfortable with ‘truth’ being established as 51% more likely than not. As the Judge was operating in Butler’s case on the ‘balance of probabilities’ this also should have given some pause for reflection before being keen to ‘exonerate’ him and establish him as an entirely safe and responsible parent.

Lucy Reed:

There is a question as to how the exoneration letter came to be drafted and how it came to be expressed more broadly than the judgment itself. I’ve raised this in my blog post on Pink Tape here. The main issue for me though is the interpretation / response to the exoneration. Ben Butler was exonerated of the physical injuries. The LA elected not to appeal or to argue that he was culpable in any other way. The suggestion in the SCR is that professionals were paralysed by the exoneration. Some time passed before the LA conceded the balance of the threshold, and decided not to pursue findings on any broader threshold risks – from the judgment it is easy to infer that the LA took the reasonable view that to pursue such findings would have served no purpose, partly because the subsequent assessment of the parents was positive and this made it unlikely that the judge would find the threshold crossed on the basis of behaviours that on one view were attributable to the parents being wrongly accused and unlikely (based on the assessment) to endure. The more I consider this point the more I think it would be very illuminating to see the assessment report itself.

I don’t fully understand why, after proceedings had concluded and Ellie returned home, the exoneration should have made professionals feel like the couldn’t / shouldn’t pursue matters of concern. In any event, it appears (based on the SCR) that that subsequent events and information were assessed as not being sufficient to cross the threshold to move into child protection / proceedings, so I’d query what ongoing impact the exoneration had.

Louise Tickle:

I agree with Sarah on this. The psychological impact on on professionals working with Ellie of that letter could not have been anything but one of profound reluctance and fear of stepping in, and being torn to shreds by their own managers and in court if Butler and Gray had protested – which of course they would have done, and I believe in the case of the school raising concerns, did. This was a very senior judge, the LA had fought very hard, and lost. Where, really, were they to go at that point, without fresh evidence of harm reaching a high threshold – and how were they to be able to make assessments given total lack of access, and fear of what would be forthcoming if they were to seek such access?

Were the other issues that could have amounted to threshold properly dealt with, or did the non finding on shaking dominate?

Andrew Pack:

I think this really is the million dollar question. In the first fact finding hearing before Hogg J, the case was all about the head injury, and all of the evidence called and 95% of the documents looked at would have been about that. Having failed to prove that, there was of course still the convictions for violence to consider. Those offences were not against children, so they would not automatically mean that father would have posed a risk to a child, but it was material which needed to be considered in detail in an assessment and could have satisfied threshold.  That, coupled with the child’s presentation around father and the grandparents evidence COULD, have led to a decision that despite the finding on the head injury, Ellie wasn’t going to be moved from grandparents.  I would like to see the threshold document with the findings sought, and to have more clarity about which ones the Judge was specifically asked to make findings on and heard evidence about, and which were simply not put to her as a result of her very clear finding on the head injury and the direction of travel.

Sarah Phillimore:

I agree with this. If this was presented as a ‘single issue’ case – i.e. did he hurt Ellie as a baby, that would seem – with hindsight – to be a mistake. But of course, Judges can only decide the cases before them.

Lucy Reed:

The press coverage at the time focused heavily on the physical injuries but other matters of concern were known about and before the court, but were not the subject of findings. It is arguable that the other matters could have potentially amounted to threshold but the fact and force of the exoneration may have affected decision making about whether it was going to be a good idea to pursue them. The critical question is whether the other matters were presented and pursued and if not why not – and whether any thought was given to reframing threshold after the exoneration. Following the ISW assessment the balance of threshold was crossed. Although we don’t have the threshold document itself it appears from the judgments that the fact of the fathers convictions was not pleaded as a threshold risk in itself. The question of suspected domestic violence / control in the parents relationship was raised and evidence was heard – but the judge made no ruling on this evidence and adjourned off for further assessment. By the time the matter returned to court the LA were not pursuing findings and nobody seems to have asked the judge to record or make findings in respect of this evidence. The first judgment records that evidence was heard but does not record its extent or cogency. It is reasonable to assume that if the evidence was compelling and of high concern this would not have been dropped and would have been the subject of judicial comment or findings. But we don’t actually know.

Was the decision to have Independent Social Workers (ISWs) deal with not just the assessment of whether Ellie should move from her grandparents but the actual social work of the move unusual, and did this make a difference?

Andrew Pack:

The Judge was clearly taking into account that during the earlier hearing, the parents had been substantially criticised by the Local Authority for not accepting that father had injured Ellie and the working relationship was very strained. Having made the finding that father was exonerated, it was put to her, and she agreed, that any assessment by the Council would be ‘doomed to failure’.  That’s strong, but I think it wasn’t unreasonable to ask for the assessment as to whether Ellie should go home to be done by Independent Social Workers. What is much harder to understand is why those ISWs were also charged with doing all of the direct social work with grandparents, Ellie and parents, to prepare Ellie for the move and do the social work visits. The Serious Case Review shows that that agency were not given clear background information and essentially just had the judgment exonerating father – was it clear enough to them that this man had a history of violent offending? Might that have made them more concerned about the visits where they now report that he had been angry and unable to calm down for 10-15 minutes for some of these visits? Or, in the absence of knowing about his convictions for violence, did they assume that this was justifiable frustration about the process from a man who on that judgment had lost his child and been wrongly sent to prison and was still not reunited with his child?  I think that consideration should have been given to a fresh social work team within London Borough of Sutton doing the social work (ISW to do the assessment is fine) or if that wasn’t possible, perhaps a neighbouring authority.  ISW assessment work and direct social work with a family are very different. I think that the Judge got that wrong. At the time, I’d score that decision a 4 out of 10 (it was unusual and a bit strange at the time) and obviously in retrospect it was a major factor to the Court not having the proper evidence about Ellie after the fact finding judgment.

Lucy Reed:

I agree with Andrew. There is a big difference between an independent social work assessment and an independent agency taking over social work responsibility. I’m not sure whether the court intended them to perform this broader role or whether this got mixed up in the process of instruction or at some later stage – perhaps the LA / professionals took the view that they were being ousted for all purposes. It’s unclear whether the ISWs considered themselves to hold this broader responsibility (I’d say doubtful). It’s concerning to learn that over this period the Guardian was off sick and no cover provided. This may well have had a significant impact on the way in which the assessment was carried out and monitored.

Why did grandparents have to pay £70k for legal costs, can anything be done?

Andrew Pack:

The grandparents had parental responsibility by virtue of the Special Guardianship Order, so if these had been care proceedings (the Local Authority wanting to take Ellie away from them) they would have had free legal representation. Because instead this started as a rehearing of a fact finding, and then proceedings primarily regarding a younger sibling not cared for by the grandparents, the grandparents didn’t get legal aid, had to pay their own costs and eventually ran out of money. Grandparents representing themselves, up against two of the best family law Silks around, and a Judge who was viewing Ellie’s case as a miscarriage of justice to be put right – it certainly wasn’t a level playing field. I would strenuously argue for reform of the law here – these grandparents had been caring for Ellie for a long time and doing it well, and if they were to lose her against their will and what their eyes and ears were telling them was right, then they should have had lawyers to fight the case.  A starting point would be for the Ministry of Justice to write the grandfather a cheque for the full amount of his costs – it is bad enough that he lost Ellie, he shouldn’t have lost his life savings too.

Sarah Phillimore:

I agree with this. Ellie had lived with them since she was a very small baby. It is simply wrong in a civilised society that they were left in this position. It wasn’t a level playing field.

Lucy Reed:

This is a problem for grandparents AND parents – even where a parent or other adult has care of a child, public funding is means and merits tested for anything other than the main care proceedings. So, applications to discharge care or placement orders, to appeal or to apply to revoke placement orders or oppose adoption orders, standalone applications about special guardianship or any other private law application – no matter how complex – are means and merits tested. The threshold to be ruled out on means grounds is low so it is easy to be ineligible whilst still being unable to pay.

Judicial accountability and unwillingness to participate in the serious case review (SCR).

Andrew Pack:

I don’t think that the judiciary should routinely participate in Serious Case Reviews. Judicial independence is very important, and the way that SCR’s are conducted, with all parties being very honest about what happened, what could have happened differently, what lessons can be learned, don’t sit entirely comfortably with the judicial role, and the need for them to be independent and to NOT be a part of the professional agencies charged with child protection. However, in a case like this, where the child dies in a placement that the Court have not only sanctioned, but sanctioned in the teeth of opposition from grandparents and social workers, I think that it was unwise for the Judge not to at the very least have spoken with the authors of the Serious Case Review. There needs to be some mechanism for the most exceptional cases of this kind. Likewise, the family judiciary knew of this case 2 years before the verdict – yet the Judge was still given difficult family cases to decide, and they had no press statement or comment. It gives the distinct impression that the judiciary aren’t scrutinising this decision and accepting any part in this tragedy, and that’s a bad impression to give to the Press and public.

Sarah Phillimore:

I agree with this.

Lucy Reed:

On a human level it would be immensely helpful to hear the judge’s view in hindsight, and an explanation of what was going through her mind. But I agree that there are sound constitutional reasons why that should not happen. It’s really important that a judgment is an authoritative and final explanation of a decision or a set of findings. That’s an important protection for adults and children and I think that if alongside a judgment there is a public rumination about what might have been wrong about a judgment then the judgment loses its specialness and the authority of the court is lost. I think it’s right that where a judgment is wrong it can be appealed, and where material new evidence arises a finding can be revisited. That happened in this case when new medical evidence pointed towards a miscarriage of justice against Ben Butler, and of course with hindsight many people are now reappraising the exoneration finding.

For me though the corollary of saying that a judge should not participate in an SCR is that there must be meaningful transparency in terms of the judgments and process. We don’t have that in this case because the judgments have been pulled and the public can’t appraise the judgments or case documents against the SCR. Having seen some of the judgments in this case it seems to me that there is some tension between some of the accounts given and views expressed in the SCR and in media reports and the content of the judgments themselves. I think that constitutionally the public need to have access to this material.

Louise Tickle:

I don’t agree with this. I cannot see why the judiciary should have zero accountability when every other actor in the case has had to answer for their decision making and judgement calls. I think, in response to Lucy’s point, that the authority of the court is only as good as the public’s confidence in it. I do not think public confidence in the judiciary has been increased by this case, but worse, I think it has been even further damaged by the position taken by the President that a judge simply will not enter into the processes of examination as to why she acted in ways that went, in some people’s view, far further than was required, on a standard of proof that can be hardly said to truly exonerate anyone. Particularly anyone with the previous, safe, criminal convictions for violence that Ben Butler had. Overall, I cannot see why any part of our society’s agencies should be above questioning and scrutiny. A child has died. The ‘specialness’ of the judiciary is an irrelevance and an abuse of privilege in this extreme circumstance, if there is something to be learnt by other judges and indeed the rest of us. It is not about demanding heads on plates – it about Hogg’s thought processes and levels of risk aversion and judgement relating to facts and evidence she was appraising that could, if it were to be known, be reflected upon, considered, discussed and learned from. We do not get better understanding of failures by refusing to look at what let up to them. And judges have vast powers. The more power you have, the more accountable you should be when something very terrible goes wrong.

What pieces of information are we still lacking? Should for example suitably anonymised medical reports be in the public domain so press and public can see how complex and difficult the medical evidence is?

Andrew Pack:

I think we need the judgments available to the public and put in one easily accessible place – the Court of Appeal criminal judgment, the fact finding judgment from Hogg J, the second judgment from Hogg J where she decided that Ellie would live with Jennie and  Ben, and very vitally the judgments from King J about Ellie’s sibling after Ellie had died. At the moment, we don’t know whether King J reconsidered Hogg J’s exoneration at all, or whether it proceeded just on the evidence about Ellie’s death. Nor do we know what the outcome was for Ellie’s sibling– of course we shouldn’t have name or details of the sibling’s address, but I think there’s public interest in whether the child was placed with the grandparents and if not why that was decided. I think that unusually in this case, there is justification for the entire court bundle to be available to be seen. Obviously one has to be careful about any photographs and we don’t want prurient rubber-necking, but there is such public unhappiness about this decision that seeing the medical reports would, I think be justified.

Sarah Phillimore:

I agree with this.

Lucy Reed:

I agree also. I would in particular like to see skeleton arguments or written opening / submissions presented to the court at the rehearing, threshold documents filed at particular times, position statements and orders.

The lady who wanted to sparkle – follow up

 

You have probably heard that C, the lady I wrote about on Wednesday, where a Judge had decided that she had capacity to make her own decision to refuse treatment, that decision being in keeping with her unusual approach to life rather than being a sign that she lacked capacity to make the rational decision that almost all of us would have made, died this week.

 

The Press made an application to be able to name her.  That’s a very tricky one.  On the one hand there is transparency and this case has certainly attracted a lot of media interest (and frankly given the biographical details in the story, I’m sure that the Daily Mail with their resources can find out who C was in about 30 minutes of investigation).  I don’t think this is prurient, I think there is some genuine public interest in the story and the issues, and of course a piece in a paper works far better when it is a real person not the letter C.

On the other, this case threw up very personal details in order to uphold C’s right enshrined in the Mental Capacity Act 2005 that everyone is assumed to have capacity unless proved otherwise and thus to refuse treatment unless proved they lack capacity – C did not bring the case to Court, she was brought into Court by the Trust and she won the case. So why should she be named when she did nothing whatsoever wrong in law? There are also the children to think of, one of whom is 15.

 

The final decision is not made yet, but an interim Reporting Restriction Order was made, preventing publication of the name until the matter can be properly litigated.

 

http://www.bailii.org/ew/cases/EWCOP/2015/83.html

 

I read in the week, sadly with bad timing on the day that I learned that C had died, the article in the Guardian by Zoe Williams. That article attacked the Judge and linked his decision with other very controversial outbursts by Judges – arguing that the Judge’s setting out of the history showed an inherent sexism.  I felt that the article was ill-concieved and had missed all of the real substance of the case.  I normally rate Zoe as a writer, so the tone of the piece, particularly the attack on C’s children surprised me.

http://www.theguardian.com/commentisfree/2015/dec/02/slur-woman-who-lost-sparkle-c-right-to-die-judgment-femininity-marriage

 

I then saw the piece by Lucy Series from The Small Places blog, that made me look at it in another way. I think this is the best piece of writing on C’s case and the issues that it throws up of ‘who are judgments written for in a transparency climate?’  and ‘should they be written in the same way as they used to be’?

 

https://thesmallplaces.wordpress.com/2015/12/04/the-stories-we-tell/

I wish I could write like Lucy does. I dash stuff off the way that Kerouac wrote “On the Road”  – typing furiously, getting all of my thoughts on the page  – Kerouac wrote so fast that he taped paper into one giant sheet to save him the distraction of having to stop and put a fresh sheet into the Hermes  (and I’m reminded that Truman Capote famously said of his method “That’s not writing, that’s typing”).  Lucy is much more the Truman Capote style of constructing the piece, making the words all do their share of the work, not having a sentence in that doesn’t say something important and say it in just the right way, and it being more like inspecting a gorgeous diamond from a variety of angles rather than listening to someone excitedly blurt out what’s on their mind.   Hopefully, there’s a place for both Kerouac and Capote in legal blogging.

 

Anonymity for victim of child sexual abuse/exploitation

 

The High Court considered an application to extend a Reporting Restriction Order on a 17 year old, AB, which would expire when she became 18 to be throughout her life.

 

Birmingham City Council and Riaz 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1857.html

AB was the victim in a high-profile case of child sexual exploitation – you may remember it as the one where Keehan J, in the High Court, made an order that the adult males suspected of having abused AB would be (a) subject to orders preventing them from being around children and (b) named and shamed, so that the press were able to report their names and print photographs alongside a story that they were men who had targeted and groomed children for sexual purposes.

 

Remember that in that case, there had been no criminal trial and was never likely to be, and that the men had not gone through a process of contesting the allegations and having the Judge decide whether they were true.  Just that on the civil standard of proof the evidence was such that an order preventing them from harming other children was appropriate.

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html

The Local Authority, Birmingham applied to extend the Reporting Restriction Order on AB for her whole life. They argued that AB was a victim, that any story about the case could be told without her name, that she had been a child and deserved protection not press exposure and no doubt that if the result for AB of having told her story and made her allegations was that she was made notorious and everyone who met her would know for the rest of her life what happened to her, that would deter other victims.

The Press were not arguing that they wanted to name her, but were concerned about a precedent emerging.

When looking at the case, Keehan J identified that as a result of s78 of the Criminal Justice and Courts Act 2015, Criminal Courts had the power to make orders saying that the name of a victim or a witness could be subject to an order that it not be reported.  There is also an authority of the Court of Appeal JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 that permits such orders being made to preserve the anonymity of children who receive financial settlements.  Again, that makes perfect sense – if you receive compensation for something terrible in your childhood, why should everyone that you meet in your life get to know all the personal details?

 

With this sort of case, it is more tricky.

As was put to Keehan J, an order preserving the anonymity and identity of an adult [other than as the result of Court of Protection or care proceedings/adoption] has happened in three cases in English legal history.

The cases are all pretty notorious – Mary Bell, Thompson and Venables, and Maxine Carr.  It is no small thing to add a name to that list.

On the pro side of things, I’d probably argue that those were all people who did something wrong (and where a child died as a result – Maxine Carr having the lowest culpability), whereas  AB was a victim. Why on earth should a victim get less protection than a person who was responsible to some degree for the murder of a child?

On the con side, the three cases above involved a CHANGE of identity.  The press and public knew who Mary Bell and the others were, and indeed photographs were available. The press can publish those photographs even now. The public wasn’t being told that they couldn’t know that Mary Bell had killed a child, they just couldn’t know her new identity.

 

I’m struggling to be balanced here, since for me the case for AB to have anonymity for life is overwhelming, but I can see that it is establishing a precedent  (and just with the inherent jurisdiction cases, there’s a later danger that such a precedent in a deserving and solid case can be later used to advance the jurisdiction further and further away)

Mr Dodd, for the Press Association  (given a tricky brief) did pretty well with it

  1. Mr Dodd submits that the court should proceed cautiously before filling in a lacuna left by Parliament. He referred me to paragraph 20 of the opinion of Lord Steyn in the case of Re S(FC) (A Child) [2004] UKHL 47 where he said:

    “20. There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.”

  2. Of particular note is the caveat entered by Lord Steyn to the courts creating further exceptions to the general principle of open justice “except in the most compelling of circumstances”. 

 

 

Keehan J considers matters in a very thorough manner and it is an exemplary judgment  (whilst I think that some of the analysis in the initial Riaz case is not as rigorous as I would have hoped, given the serious nature of what was being done there and the likelihood that the approach would be used in other later cases, I can’t fault this judgment)

 

  1. Discussion
  2. I entirely accept the high importance accorded to the general principle of open justice. It was because of the considerable public interest in the issue of CSE that I directed the matter to be heard in open court in October 2014 and thereafter.
  3. The mere fact that there are only three reported cases of lifelong anonymity being granted in civil/family proceedings, should not deter me from undertaking my primary task which is to undertake a rigorous analysis of the competing Article 8 rights of AB and the Article 10 rights of the press and broadcast media.
  4. It is plainly in the public interest that the press and broadcast media are able to report proceedings concerning cases of CSE. The public have a right to know how local authorities, child protection services, the police and the courts approach and deal with such cases. It was for that reason that I gave a judgment in public last December and ordered that each of the respondents should be identified.
  5. What, however, is in the public interest in identifying AB as a victim of CSE? I confess I can see no such interest at all.
  6. AB is entitled to respect for her private life. What could be more private and personal than the fact that she has been the victim of CSE? I am satisfied that the fact she has been the victim of CSE is entirely a private and personal matter for AB. If, once she has attained her majority or thereafter, she wishes to make it known that she is a victim of CSE, that must be a matter for her and her alone.
  7. I accept the Press Association and the Times do not wish to identify AB, but their approach does not bind and may not reflect the approach of other members of the press or broadcast media or those who use social media sites.
  8. I take account and accord considerable weight to the serious adverse consequences for AB if she were to be identified as a victim of CSE in the press, broadcast media or on social media sites. I accept the opinions and conclusions of the social worker and the psychologist. AB remains a very vulnerable young woman. In my judgment adverse publicity about her as a victim of CSE is likely to have a serious deleterious effect on her emotional and psychological well being.
  9. I have earnestly reflected on this difficult issue of whether I should grant a RRO to afford AB lifelong anonymity. I have taken account of the high priority accorded by Parliament and the courts to the protection of victims and especially to young people.
  10. I have carefully balanced the competing Article 8 and Article 10 rights. On the basis that I find no public interest in identifying AB as a victim of CSE and I find that there are compelling reasons why AB’s history of being a victim of CSE should remain confidential and private to her, I am completely satisfied that the balance falls decisively in favour of granting the lifelong RRO sought by the local authority.
    1. I further consider that there is a high public interest in supporting the victims of CSE to come forward and report their abuse to the authorities and to co-operate with them. Whilst the issue of lifelong RROs in possible future CSE injunction cases will have to be determined on their own merits, there is a very real risk, in my judgment, that my refusal to grant a RRO in this case, might deter other young victims of CSE from coming forward to the authorities. In principle I propose to make a RRO in favour of AB for her lifetime.

 

 

 

 

Reporting restriction orders and anonymisation

 

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

A Healthcare NHS Trust and P 2015

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

 

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

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

 

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

 

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

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

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

 

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

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

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

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

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

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

    1. It would be a statutory contempt.

    2. It would be a contempt of common law.

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

    4. It would be a breach of confidence.

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

 

 

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

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

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

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

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

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

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

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

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

 

What about common law contempt?

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

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

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

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

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

 

 

Reporting Restriction Order – Swansea

 

The decision in Swansea v XZ and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/212.html

It is rather strange, in this week where all judgments by Circuit Judges or above relating to children are to be published online following the President’s guidance, to also see a Reporting Restriction Order case; although the order makes a great deal of sense in the particular circumstances of the case.

In this one, a mother from the Swansea area faced criminal charges relating to the murder of one child and the wounding of another. The mother pleaded guilty to the criminal charges in November 2013.  The alleged offences happened in 2006 and 2007, although the criminal charges were brought many years later.

This was touched on by the Court here

On 27th September 2011, the police finally applied for disclosure of the case papers. I note that this was already nearly three years after the finding of fact hearing before Wood J. The case came before Charles J on 1st November 2011. Even at that stage, he said that there was, as far as he could see, “no reasonable justification” for the delay in applying which appeared to be “inexcusable.”

Between 2007 and the present day, care proceedings took place on the second child and subsequent children those proceedings seem to have taken place over many years, with what seems like several different sets of proceedings,  finally ending in 2013 with the family court deciding that all of the surviving children could live with their parents.  [The precise chain of where they had all been living in the interim is not easy to follow, but it seems that it had mostly been with either both parents, or the father alone]

I should make it clear that the Mother’s care of the children that were staying with her has, since the institution of the proceedings, been, at all times, exemplary. The children very much wanted to be with their Mother and it was in their best interests to be with her provided she was mentally well and it was safe for them. By 11th March 2013, it was clear that, despite the criminal charges, her mental health had not deteriorated. I therefore directed that those children should return to live with her on 19th March.

 

The Local Authority applied in this case for a Reporting Restriction Order to prevent the mother’s name being published – in the usual course of events, there would be nothing to prevent the Press publishing the outcome of the criminal trial (which is certainly newsworthy) and naming the mother – even though that would indirectly identify the children. Hence, the Local Authority applied for the order. (It was not intended to keep the care proceedings secret, but prevent the children from being identified as being the children of a woman who killed a baby)

 

    1. The Local Authority case is that permitting the media to report the identity of the Mother will cause very significant harm to the children. First, it is said that, for reasons I cannot explain fully in this public judgment, anyone in the locality reading a media report naming her would instantly know which family it was.

 

 

    1. It is then said that there are a number of features of this case that could well result in real danger and harm to these children. In particular, it is argued that this case involves a significant number of features that have, rightly or wrongly, caused great contention of late in this country. These stem from the family background details and that very serious harm was done to two babies; and the Mother has cared for those children notwithstanding what has happened.

 

 

    1. It is said that, as a result, the family would be at high risk of being targeted within their community by threats and reprisals if they were identified. It is argued that reprisals might be both physical against them and against their homes. There would be a real risk of serious bullying at school. I am told that the effect on the children is potentially devastating.

 

 

  1. Significant evidence has been put before me as to the risk that the children will suffer significant harm
    1. The evidence that has been placed before me comes into exactly this category. It is from a very experienced social worker, Carol Jones, who is well aware of local conditions. I also have evidence from the Guardian (albeit that she has only relatively recently been appointed in this case) and from the consultant psychiatrist, Dr D.

 

 

    1. Carol Jones says that, for reasons explained in her evidence, the family are easily identifiable. She is concerned that the community may, wrongly, feel that the family has been treated differently because of their background. She tells me that something similar happened to another family in the locality where there was a conviction for child murder. She adds that, if there is no custodial sentence, that may itself fuel resentment.

 

    1. She goes on to say that, if the application for the Reporting Restriction Order fails, the Local Authority has decided that it will have to remove the family immediately to a completely new area of the country and give them new identities. This, of itself, shows how very seriously this matter is viewed. If this happens, the children will lose the stability that has been painstakingly acquired since the tragic events of 2006 and 2007. They will also lose the consistency and security of their schools that have provided them with significant stability, notwithstanding the difficulties faced by the family. They will lose friendship groups. I accept everything that Ms Jones writes.

 

    1. The Guardian, Joanne Bamford, says that she is particularly concerned about one of the children, who is well aware of what has happened. That child has found the stress of the last few months increasingly intolerable and is exhibiting signs of anger and frustration. Ms Bamford considers exposure will have a particularly devastating impact upon that child who uses Facebook and will be exposed to what is written about the family. The child may well be bullied and threatened. There is concern as to the child’s mental health and even the possibility of self-harm or even attempted suicide. I accept all this evidence as well.

 

 

  1. As noted above, the Local Authority has prepared a Safety Plan that involves immediate relocation out of the Swansea area even before the reaction of the public is tested, so serious are the concerns. In my view, the effect of all this on the children will be nothing short of devastating. In due course, they will all know that one of their siblings has died and that another sibling was seriously injured. These events happened as a result of the actions of their Mother, who they love so much. None of this was in any way their responsibility yet they are the ones who would now suffer the most. They would have to move home and school. They would lose their friends and all that is familiar to them. They would have to change their identities. Moreover, in all likelihood, they would suffer significant vilification and abuse. Once this is all clear, it becomes immediately clear why this is such an exceptional case.

 

 

This case is a good illustration that there’s a tension between public policy and interest that people who commit crimes should be identified and their crimes reported and the privacy of children who have done nothing wrong but might face serious detriment or harm if the local community linked them to the mother who committed these crimes. It is that tension, otherwise expressed as article 10 (freedom of expression) v article 8 (right to private life) that the Court had to wrestle with.

The law as it relates to this particular case

 

    1. I have already said that, very responsibly, having considered all the evidence, the media organisations represented before me accept that this is one of those very few wholly exceptional cases in which anonymity is justified not just for the children but also for the Mother (and Father) because identifying the parents will lead to identification of the children.

 

 

    1. I agree with that assessment. I am solely concerned in this regard with the effect on the children, not the effect on their Mother but the evidence points inexorably to serious harm being done to the children if their identity was to become known. The fact that the Local Authority considers, rightly in my view, that it would have to uproot them immediately from the area where the children have lived for many years, if I was to refuse to make the Reporting Restriction Order, is clear evidence of the serious damage such exposure will do.

 

 

    1. I am, however; equally clear that I must permit reporting of anything that does not lead to the identification of the children. I must therefore assess what is likely to lead to their identification and what can safely be put in the public domain without leading to their identification. I accept the submission of the Local Authority and the parents, with which the media organisations do not dissent, that, in dealing with this area, I must consider “the jigsaw effect“. In other words, I must remember that there may be an individual piece of evidence that itself may not lead to identification but that is likely to do so if combined with other pieces of information also placed in the public domain.

 

    1. It is accepted that they would be identified if their name was known. It is for this reason that it is accepted that the Mother and Father’s names must be given anonymity as well as those of the children. I also remind myself that there may be a significant number of people who know that this family lost a baby in 2006.

 

The individual issues

    1. The first issue I had been asked to consider was whether or not to permit reference to the family’s origin. I am absolutely clear that such reporting must be prevented as was agreed by the media once they had read the further papers. Having considered the statistics relating to persons from that country living in the Swansea area, I am quite satisfied that, if any reference had been made to their origin, there would have been a likelihood of exposure.

 

    1. I will therefore now turn to deal with the areas that remain in dispute.

 

 

    1. The first issue was whether or not there could be reference to their religious faith. Again I have considered the statistics in relation to this and I have come to the clear conclusion that permitting disclosure of her religious faith would also be likely to lead to identification of the children. I therefore refuse to do so.

 

    1. I consider that it also follows that the media should not be entitled to name AZ. It certainly points to a family of their origin. I have come to the conclusion that AZ should be referred to as “A” and BZ as “B”.

 

    1. Ms Gallagher perfectly properly pointed out at the end of the submissions that the draft Reporting Restrictions Order would appear to permit the media to report how the Mother came to be in this country. The other parties were surprised by this as they had assumed that this would not be possible. I was therefore additionally asked to decide on that.

 

    1. I am particularly aware of the fact that the Z family are not living in an area where there are a significant number of people who might potentially have this background. I have come to the same conclusion in relation to this aspect. In other words, I consider that permitting disclosure would run too high a risk of identification.

 

    1. Finally, there is the question of the composition of the family. I consider that very different considerations apply here although I am still concerned about naming the exact number of the children. To do so would immediately show that this is a family with a particular number of surviving children plus one deceased in 2006. I do not believe there are likely to be many families in the Swansea area in that category and certainly not where they live. It therefore follows that I consider it would be to run too high a risk to permit naming of the number of the children.

 

  1. I do not, however, see that there is any reason to prevent reporting that the parents are separated. Indeed, it would be surprising if they were not. Equally, I consider there is no reason to prevent the media saying that there is more than one surviving sibling and that they see their Mother. Further, I consider that it is appropriate to report, if the media wishes to do so, that, since the institution of care proceedings, her care of them when with her has, at all times, been exemplary.

 

[This latter bit explains the earlier suggestions about how giving much of the family’s background would easily identify them – let’s pretend for hypothesis sake that they are Martians, and have green skin and surnames like M’Hxtelkraw, and you can then see what is being hinted at, and also the talk of ‘how the family entered the country’ makes sense of the earlier suggestion that the local community might, wrongly, feel that they had been treated differently because of their background]

 

The Press were very responsible in this case – reading between the lines, this would be a very newsworthy story, particularly for the more erm… ‘traditional’ newspapers for whom the story would have pursued several agendas, but they recognised and accepted the balance between the children’s welfare and running a juicy story.

Transparency and Facebook

This is a County Court case, dealing with some of the transparency issues that I’ve been writing about recently, and highlights that there are going to be teething problems as the Courts move from very secret to fairly open. 

[If we were moving to 100% open where there were no restrictions at all, the lack of clarity about what is ‘direct identification’, what is ‘indirect identification’ and what is neither, wouldn’t be such an issue, but at the moment, given that what the Courts are prohibiting is direct or indirect identification of the child and linking that to identification that that particular child had been the subject of Court proceedings, not being clear about what is meant by those terms is no longer helpful.]

 

Re B (A Child) 2014

 

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

 

 

The case involved an application by the Local Authority (Staffordshire) for a Reporting Restriction Order  – given that Staffordshire were the LA who lost so badly on this issue when they came before the President in Re J they must have been fairly nervous about making the application.

 

The child is 2 years old and on 23rd May 2013 the Family Proceedings Court made her the subject of care and placement orders.  There had been extensive assessments of the problems faced by these parents.  The mother and the father came to the courageous and wise decision that they would not oppose the local authority’s plan for their child to be placed for adoption.  The maternal grandmother had a different view and she made an application to the court for an order that she should care for the child.  The grandmother was also the subject of extensive assessment which concluded that the child should not be placed with her.

 

What happened after that final hearing was that the grandmother did not accept the outcome in the way that the parents had. She was against it, and not afraid to say so.

 

She appealed to the County Court, and lost, and appealed to the Court of Appeal and lost.

 

The grandmother is clearly very disappointed by this outcome and she has

complained that the outcome is unfair.  No one suggests that the grandmother

should be prevented from commenting on this saga or from criticising the local

authority or the court.  However, the local authority says that the grandmother

has gone beyond that.  They say that she has caused harm to the child by using

her name and her photograph.  Examples have been shown to me.  I have seen

the grandmother’s Facebook postings in the bundle at C13, C15 and C17.  There

is a further very relevant Facebook posting at the back of the local authority’s

written submissions, an entry which I am told is dated 13th December 2013 and

starts by an indication that it was posted 11 hours ago.  In addition the

grandmother has started an online petition bearing the name and photograph of

the child.  Details are in the bundle at C17.  The grandmother has contributed to

an internet radio station where there was a discussion forum to which the  

grandmother contributed the name of the child.  This is accessible from a link

which appears on page C19 of the bundle.

6.                  The local authority’s application for a reporting restriction order seeks

to prevent this identification of the child but otherwise does not seek to prevent

discussion, comment and criticism of the local authority and court processes.

So it is only anything that would directly or indirectly identify the child which would be prohibited.

 

That of course was easy in an age where the only people who could publish anything were newspapers – they would just be told “you can print the story but not the name” and would decide whether sans the name the story would have sufficient public interest to make it worth publishing. And the sanction for breaking that restriction would be fairly simple – it is easy to dish out a fine to a newspaper, who can pay the fine.

 

But we now live in a different age, one where anyone who wants to publish anything can do so. For example, this very blog that you are reading. Anybody who wants to can set up a blog and write about what they like. Or they can use their Facebook page, or Twitter, or join an internet chatroom or post comments on Mumsnet or other similar sites.

 

The considerations are different for a journalist or editor whose natural tendency is to comply with the Court’s wishes or orders, and that of an aggrieved person who is personally and fundamentally affected by the decision and has lost all faith in the Court.

 

The most natural place for most people these days, to express their views is on their Facebook page. The grandmother, of course, doesn’t have to give the surname of the child to have indirectly identified them if she writes about them on her Facebook page, because the Facebook page directly identifies HER, and her comments directly link the children to HER.

 

 

   The evidence presented to me leaves me in no doubt that the grandmother has embarked upon a campaign to undermine these rights enjoyed by the child.  The Facebook entry of 13th December 2013 attached to the written submissions can only be described as a call for others to help a search for the depicted child in her new adoptive placement.  The accompanying text and other text refer to the child as a stolen child but by that date the Court of Appeal had determined that the plan for adoption could not be challenged.  This kind of publication is very harmful at a number of levels.  It is harmful to the child in the present if the search established her whereabouts and led to disturbance and destabilisation.  It is harmful in the present even if the search does not succeed in that it exposes the prospective adopters to anxiety at a time when the child’s best interests would be served by them accepting her into their household from a standpoint of emotional stability.  It is very harmful to the child in the future in that these internet postings can remain so that when a little older and accessing the internet herself the child may encounter these destabilising messages and find her own wellbeing undermined.  Alternatively these postings might be accessed by friends of the child and form the basis of comment or even bullying.

11.              I remind myself that the courts of the land at the highest level have determined that placement for adoption is the only appropriate outcome for this child and an outcome which is inherently lawful.  In these circumstances it is clear that Article 8 and Article 10 are in conflict.  Both represent important rights.  However, as so often in these cases, a proportionate balanced reconciliation emerges.  The right to freedom of expression does not need the elements of personal identification which are so harmful.  The right to respect for family and private life does need a prohibition to be placed upon identification but does not need to prevent all comment and debate.  It is clear to me that the proportionate outcome is to allow discussion but to prevent identification

 

The Court balanced the article 8 right to private and family life for the child against the article 10 right to freedom of expression, and determined that it was right that the grandmother should be able to debate and discuss the case, including the facts of the case (and including within that scope her own view of the case, which might be at variance to the Court’s own conclusions) BUT that she should not be allowed to identify, directly or indirectly, the child.

 

 

There is one area in which I find the present case to differ from the President’s case of Re: J [2013] EWHC 2694 (Fam).  In that case the restraint of publication of photographs of a tiny baby was considered to be inappropriate.  The present case I find to be very different.  This child is significantly older and correspondingly easier to identify from photographs.  Indeed, the grandmother has used a photograph as part of her campaign to seek out the whereabouts of the prospective adoptive placement.  This is one of the most harmful aspects of the case and an element from which the child needs protection.  Carrying out the same balancing exercise as did the President I reach a different conclusion and find that the publication of photographs must be restrained alongside the publication of names.

 

 

 

I shall conclude with a note addressed to the grandmother. I am sorry that she has chosen not to attend court today. There may be points which she could raise which are relevant to my decision. I have done my best in her absence to anticipate them. However if there are other points I invite her to apply to the court. The worst thing she could do would be to act in breach of this order and only when steps are taken to enforce the order against her, to raise points which should have been raised today. The order does not prevent campaigning, discussion or debate. However as in many other cases, these must not include the use of the true names or photographs of the child as this would be harmful to her.

 

 

 

The judgment does leave me in some doubt, and sadly the precise terms of the Reporting Restriction Order are not set out to aid in interpretation, as to whether the grandmother can continue to post commentary or discussion about the case on her own Facebook page subject to NOT naming the child or including photographs, or whether doing that commentary or discussion under her own name indirectly identifies the child.

 

Likewise, if she posts an article about the case on a website, using her own name but not naming the child, is that okay? What if she puts up a photograph of the PARENTS but doesn’t name them? What if somewhere else in her Facebook page, there’s understandably a photograph of her grandchild?

 

As we get farther and farther along the transparency route, the vagueness about what would constitute indirect identification of the child in these sorts of cases becomes less and less satisfactory.

 

Lawyers need to be able to know where the boundaries are drawn to properly advise their clients how not to cross them.

 

People who are unhappy about outcomes of court proceedings need to know where the lines are that they should not cross in talking about the case

 

Newspapers and moderators of online discussion groups need to know where the lines are so that they don’t inadvertently cross them

 

Local Authorities need to know where the lines are so that they don’t end up warning or threatening legal action for things that they might wrongly think is a breach

 

Guardians need to know where the lines are so that children who are capable of understanding know what can and cannot be said about them in the press

 

And Courts need to know, so that these things can all be transparently expressed.