Re W (Children) [2016] EWCA Civ 113

01 MAR 2016

(Court of Appeal, Civil Division, McFarlane, Macur and King LJJ, 25 February 2016)

Publicity and reporting – Fact-finding hearing – Care proceedings – Death of a child – Narrowly drawn reporting restrictions – Appeal by solicitor for surviving children

The appeal from a reporting order was allowed to the extent that medical evidence would be removed from the 2014 judgment and there would be a tighter requirement on the issue of daily reporting of the rehearing.


Case No: B4/2015/3816
Neutral Citation Number: [2016] EWCA Civ 113

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Peter Jackson ET13C00119

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 25/02/2016



Before :


LORD JUSTICE McFARLANE
LADY JUSTICE MACUR
and
LADY JUSTICE KING


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Re: W (Children)


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Miss Janet Bazley QC and Miss Carly Henley (instructed by Bendles Solicitors) for the Appellant
Mr Karl Rowley QC and Miss Jennifer Scully (instructed by Livingstone Solicitors) for the First Respondent
Miss Jane Cross QC and Mr Peter Rothery (instructed by Cumbria County Council) for the Second Respondent
Miss Gillian Irving QC (instructed by Denby and Co Solicitors) for the Third Respondent
Ms Caoilfhionn Gallagher (instructed by RPC) for the Fourth Respondents


Hearing date: 23 November 2015


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Judgment

Lord Justice McFarlane
:

The context of this judgment

[1] On 23rd November 2015 this court heard an appeal from a decision made by Mr Justice Peter Jackson in relation to orders allowing for publicity and media attendance at a fact finding hearing which was due to re-opened the following day in Liverpool in the course of care proceedings with respect to children. Permission to appeal had been granted on the previous working day and the appeal hearing therefore took place as a matter of some urgency.

[2] At the conclusion of the hearing before this court we announced our decision, which was to allow the appeal, but only to a very limited extent, on the basis that our reasoned judgments would be handed down at a later date.

[3] The re-opened fact finding hearing took place before Peter Jackson J in December 2015 and the judge has now published his final judgment, dated 19th January 2016, with a neutral citation [2016] EWHC 14 (Fam) (“Jackson J’s final judgment”). The full judgment is publicly available on the Bailii website (www.bailii.org). The hearing itself, together with the judge’s conclusions, have been given widespread publicity in the local and national media.

[4] Jackson J’s final judgment of January 2016 includes a clear and comprehensive account of the history of these proceedings alongside a detailed description of the evidence relating to the factual dispute and, of course, the judge’s conclusions. It is not therefore necessary in this judgment to repeat much of that detail. The summary of the background to the proceedings that now follows is therefore focussed very largely on the issue of publicity which formed the context for the present appeal.

Relevant background


[5] The care proceedings heard by Jackson J related to five of the seven children born to “the mother”. Mr Paul Worthington, who had been publicly named in the lower court proceedings, is the father of three of those children and I shall refer to him as “the father” within this judgment.

[6] Poppi Worthington was born, as one of twins, on 20th October 2011. The mother and father are her parents. Poppi died on 12th December 2013 at the age of 13 months. Her death, which occurred at a time when she was in the care of her parents, was sudden and unexpected. On admission to hospital and at post-mortem she was found to have an earlier fracture to her right lower leg and suspected acute injuries in the region of her anus. The main purpose of the fact finding hearings conducted by Jackson J was to enquire into the causes and circumstances of those injuries. At no stage has the medical evidence achieved sufficient clarity so as to identify a cause for Poppi’s death. Thus, although, as a matter of timing, her death occurred in close proximity to the discovery of the injuries to her anus, the cause of her death remains unascertained, with no medical reason being identified for it.

[7] In circumstances of which Jackson J was extremely critical, care proceedings in relation to the youngest five surviving children were not issued until 23rd October 2013, more than 10 months after Poppi’s death. At the conclusion of the first fact finding hearing which took place over the course of 15 days in March 2014, Jackson J handed down a full judgment which concluded that the father had perpetrated a penetrative anal assault on Poppi. He held that the local authority had failed to prove that the leg fractures were caused by one or other of the parents, whether deliberately, negligently or by accident, but that it was established that the parents had failed to obtain medical care for Poppi in relation to, what was, a serious leg injury that they either knew or ought to have known she had suffered. As I have indicated, it was not possible to establish the cause of Poppi’s death, and, consequently, no adverse findings were made against the parents in respect of her death. At the conclusion of that hearing in March 2014 no part of the judge’s judgment was released for publication and it therefore remained a confidential document within the care proceedings pursuant to the Administration of Justice Act l960, s 12. At that stage Poppi’s inquest had been adjourned and was due to be held later in 2014. Poppi’s parents had been arrested on 27th August 2013 and had been released on bail. As at March 2014 the police investigation was still in progress.

[8] During the course of the subsequent police investigation additional medical opinion was sought. In short terms, the effect of this additional medical opinion was to cast some doubt upon the reliability of the factual finding made against Poppi’s father with respect to the anal injuries. On 16th March 2015 the Cumbria Constabulary announced that neither parent would face criminal proceedings.

[9] Relying upon the new expert evidence prepared during the course of the police enquiry, the father issued an application in the Family Court on 7th April 2015 seeking the discharge of the care orders and, effectively, inviting re-consideration of the March 2014 findings. On 23rd April 2015 Jackson J granted the father’s application for a further hearing. It was that hearing that took place in November 2015 and resulted in the final judgment handed down on 19th January 2016.

Publicity


[10] The position with respect to publicity that I have described as obtaining following the first fact finding judgment in March 2014, namely that the cloak of confidentiality attached to the judge’s judgment and the evidence within the proceedings did not remain unchanged between that date and the judge’s decision to grant a re-hearing in April 2015.

[11] Following the March 2014 hearing, the local authority applied for a widely drawn injunction restricting reporting of the case to the extent that the names and identities of all of the family members (including that of Poppi) and any of the agencies concerned in the case would be rendered anonymous for a period of 15 years. That application, which was opposed by some 8 media organisations representing a wide cross-section of the serious print and broadcast media, was determined by Jackson J at a hearing on 11th July 2014. The judge concluded that there should be no restriction upon naming both Poppi and the father, so that the forthcoming inquest and potential criminal proceedings could be conducted with some degree of openness. He did, however, maintain a restriction upon reporting the names of the surviving children and the mother, or the specific identification of the locality in which the family had lived. These latter restrictions were primarily imposed to protect the children from any direct adverse impact from publicity at a time when they were settling into new foster homes and had, recently, been given some understanding of what had happened to their sister Poppi. No restriction was imposed upon naming the agencies that had been involved, with the exception of the hospital (this restriction was later lifted). At that time the judge’s fact finding judgment remained confidential.

[12] In addition, at a further hearing on 28th July 2014, Jackson J granted a request made by the media for a senior lawyer in each of the media organisations (if they were so instructed) to be provided with a copy of the fact finding judgment so as to inform any application that the media may wish to make to challenge the reporting restriction order and/or its scope.

[13] This court has been told that, following the partial lifting of reporting restrictions in July 2014, there had been widespread reporting identifying both Poppi Worthington and her father, Paul Worthington, by name and referring to the responsible local authority and police force. The level of publicity increased for a time around the first inquest into Poppi’s death that was held on 21st October 2014. Media organisations were critical of the inquest proceedings, during which, at a hearing apparently lasting only a matter of minutes, the coroner announced that he was adopting the findings made by Jackson J in the High Court family proceedings without disclosing those findings or otherwise giving any reasons for holding that Poppi’s death was ‘unexplained’.

[14] In response to the increased publicity and some concern expressed over the reporting restrictions that were in place, Jackson J took the unusual course of issuing a public statement on 27th October 2014 concerning the ‘Reasons for the Current Reporting Restrictions Order’. The relevant sections of that statement in the context of this appeal read as follows:

“The reporting restriction order prohibits the identification of the surviving children or their mother, or their homes, schools, nurseries, or home town. The order does not prevent the naming of Poppi, or her father, or reporting of the circumstances of her death, provided that any report would not lead to the identification of the surviving children or their mother. The reporting restrictions are significantly narrower than those argued for by the parties to the family proceedings: indeed they are broadly those that the media itself acknowledged to be appropriate at the time.Later in July, the media organisations applied for sight of my fact-finding judgment. That application was opposed by the local authority and the parents, but supported by the Children’s Guardian. I approved disclosure of the judgment to the lawyers acting for the media organisations on condition of confidentiality, so that they can understand the reasons for the reporting restrictions and keep the position under review. My decision is available on the Bailii website at Cumbria County Council v M and F [2014] EWHC 2596 (Fam).The reasons why I have not published my judgment at this stage and why the specific reporting restrictions are in place are these:Firstly, as to the publication of the fact-finding judgment. As a result of the judgment, further police investigations into Poppi’s death are now taking place. A decision by the Crown Prosecution Service may then follow. In the interests of justice It is essential that this process is allowed to take place without interference and that any criminal proceedings are not prejudiced. Secondly, as to the reporting restrictions. Poppi’s siblings are very young and they are still fragile following the death of their sister. The plans for their future are presently at a critical stage. If they were identified publicly it would harm them. The reporting restrictions are not set in stone. They are expressly open to review. So far, no application has been made by anyone to vary their terms, or to seek the publication of the fact-finding judgment, but if an application is made, I will consider it on its merits. I understand the concern that arises when the circumstances of a child’s death are not made known. Although this is not primarily a task for the family court, I will consider whether the fact-finding judgment can be published as soon as it is possible to do so. This case raises wider issues. For that reason, the fact-finding judgment was sent at the time it was given to the following agencies: [a list of 15 agencies is set out] The circumstances of Poppi’s death will surely become known to the public in due course but, for the reasons that I have given, limited reporting restrictions remain necessary at this point in time and the fact-finding judgment of this court cannot yet be published.”

[15] In January 2015 Jackson J reissued a slightly revised form of the reporting restrictions order and published a partially redacted version of his judgment given in July 2014 relating to the reporting restrictions order (available on the Bailii website at [2014] EWHC 4486 (Fam)).

[16] On 30th March 2015 Jackson J gave a further short judgment (which was again published on Bailii at [2015] EWHC 918 (Fam)) which records the arrangements that had been made to re-hear the fact finding issue in the light of the father’s application ‘seeking a reopening of the court’s findings’; the implication being that these, unspecified, findings about ‘the circumstances surrounding Poppi’s death’ had been adverse to the father. The judgment also dealt with an application made at that time by the media for the publication of the original fact finding judgment:

‘8. I have nevertheless concluded that it would not be right for the fact-finding judgment to be published now. The court retains control over the question of publication and must give due weight to the public interest, the interests of justice and the interests of the individual parties, not least those of the children concerned. It would be wrong in my view to place in the public domain a judgment that would be likely to receive considerable publicity immediately before taking a decision on the question of whether that judgment should be reviewed. To do so would be unfair to the father and contrary to the welfare of the children.’

[17] On the 22nd July 2015 the Divisional Court quashed the record of the first inquest into the death of Poppi Worthington and ordered that a further inquest must take place under Coroners and Justice Act 2009, Part 1. The Court’s judgment is publicly available as HM Senior Coroner for the County of Cumbria v HM Former Senior Coroner for South and East Cumbria [2015] EWHC 2465 (Admin).

[18] On behalf of the media organisations, Ms Caoilfhionn Gallagher informed this court that the material in the public domain from the published judgments in the family proceedings, the judgment of the Administrative Court and media coverage at the time of Poppi’s death and around her inquest amounted to a significant level of information. We were shown a clip of press cuttings which demonstrated that the names of Poppi and her father were in the public domain, that it was public knowledge that he had been interviewed about possible child sexual abuse, that there were suspicious circumstances around her death (including details of the post mortem findings of leg and anal injuries) and that the fact finding process in the family court was to be reopened.

The publicity order


[19] The order that is the subject of this appeal was made by Jackson J on 2nd November 2015 and a finalised version of this order was then made on 11th November 2015. The relevant terms are as follows:

‘1. The judgment of the court of March 2014 shall be published at 12 noon on 23 November 2015 by being placed on the Bailii website in the edited form approved by the court.

2. Those lawyers for the media organisations who have given an undertaking in accordance with the order of 28 July 2014 are released from that undertaking.

3. The hearing commencing on 23 November 2015 shall be in private, but the judgment at the conclusion of that hearing shall be given in public.

4. The hearing commencing on 23 November 2015 shall take place in the presence of any accredited media representatives who wish to attend, and those that do:

4.1 shall be provided (in advance of the hearing commencing, if requested) with the medical reports, the minutes of experts meetings, and the schedules of agreement and disagreement;

4.2 shall be provided (in advance of the hearing commencing, if requested) with a copy of the full March 2014 judgment; and

4.3 may report daily on proceedings provided that (i) until the publication of the final judgment nothing is reported that might directly or indirectly indicate the nature of the findings which the court made in March 2014; and (ii) such reporting is subject to any further directions given by the court concerning what can and cannot be published if any issue arises during the course of the hearing.

5.For the avoidance of doubt, the reporting restrictions order dated 14 January 2015 remains in effect.’

[20] In a short judgment given 6th November 2015, Jackson J explained the reasons supporting the order of 2nd November in these terms:

“[5] In reaching these conclusions, I have balanced the public interest in there being the greatest achievable openness in such a serious and worrying case, the public interest in the protection of vulnerable children who are innocent victims of circumstances outside their control, and the legitimate interests of the adults concerned. I have taken account of the fact that no one has been charged with, still less convicted of criminal wrongdoing, and of the impact on the father in particular of publication at the point where a further investigation is about to begin.

[6] I am clear that the time has come for as much information as possible about the circumstances of Poppi’s death to be placed in the public domain. There has not yet been an effective Coroner's inquest, and the Divisional Court has by its order of 22 July 2015 ordered a fresh inquest: [2015] EWHC 2465 (Admin). It was not possible for this court to publish wider information at an earlier stage because of considerations relating to possible criminal proceedings and because of the delicate circumstances of the surviving children. Those matters are no longer the absolute barriers to publication that they once were.

[7] Effect can therefore now be given to the extremely strong public interest in the availability of information about the death of a child in troubling circumstances, and about the manner in which it has been investigated. The only exception is that my previous findings will not be made publicly available at this intervening stage but at the conclusion of the proceedings, which should be imminent. Publishing them at the point when they are being reviewed is neither necessary nor fair, while publication of the narrative history does not have the same consequences.

[8] …

[9] The ability of the media to report the hearing day by day is the issue that has caused me the most thought. It is strongly argued for by the media, opposed by three parties to the proceedings, and supported by one. It is said by the local authority that the children may be harmed by information being ‘drip fed’ into the public domain on a daily basis and that it is better for them if they can be prepared for publicity at the end of the hearing in an orderly and predictable way.

[10] I have nevertheless concluded that the media should be allowed to report the proceedings on a rolling basis if it wishes to do so. That process will be subject to the conditions indicated above, so that information that should not be published during the hearing remains confidential. The court will confirm with any journalists attending the hearing that this arrangement is understood and will be complied with.

[11] I have sympathy with the opposing point of view, but in the end I find that it is outweighed by the arguments made on behalf of the media. As has often been said, the reporting of legal proceedings is about the process and not just the end result. Ms Gallagher also points out that there is no actual evidence showing that daily reporting would create real difficulties with children or their carers.

[12] Fundamentally, in a case where the flow of information to the public has been so unsatisfactory, there is to my mind a pressing need for the situation to be corrected. I acknowledge that daily reporting might heighten the level of publicity, however technical much of the evidence is likely to be. I also accept that it may well be easier for those helping the children if information was released at a particular moments chosen by the court. However, the idea that this would bring order to the reporting of the case is illusory. Once the narrative is in the public domain, the media is entitled to report as it chooses, provided it respects the reporting restrictions. The children will need to be supported through this process, however it unfolds. Giving full weight of their interests and those of the other family members, the public's long-delayed rights to know more about the circumstances of Poppi's death must now prevail.”

The appeal


[21] By a notice of appeal filed on 18th November 2015, the solicitor for the five children who are the subject of the care proceedings, acting on the instructions of their Children’s Guardian, sought to appeal against the publicity order of 11th November insofar as it:

a) Permitted publication on 23rd November 2015 of any part of the fact finding judgment beyond paragraph 100;

b) “Real time” reporting of the hearing commencing on 23rd November;

c) The court sitting in public to deliver or hand down judgment following the further hearing;d)In the alternative to (c), the court only sitting in public for the purposes of giving/handing down judgment after the Children’s Guardian has been permitted to consider a draft of that judgment and discuss its contents with those responsible for the welfare of each of the individual children.

[22] On the evening of the day that the Notice of Appeal was issued, 18th November 2015, Lady Justice King granted permission to appeal together with a stay of the order pending the appeal hearing.

[23] The appellants rely on four grounds of appeal which can be summarised as follows:

i) The judge was wrong to permit the publication of details of the original medical evidence in circumstances in which that evidence was not under review and further additional medical evidence was to be heard. To permit publication in the form proposed would simply allow public speculation to ensue with such speculation being unfair, distressing and harmful to the children;

ii) The judge was wrong to permit daily news reporting during the forthcoming hearing, despite there being evidence from the Children’s Guardian that such reporting would make it extremely difficult for the children’s foster carer and/or school to protect them from the harmful effect of publicity;

iii) The judge was wrong to direct that the court would sit in public to give or hand down judgment, particularly as no party had requested the court to do so;

iv) Guidance is sought on the meaning of the word “public” in the context of proceedings under the Children Act 1989.

[24] Miss Janet Bazley QC, leading Miss Henley, presented the arguments on behalf of the appellants in a skeleton argument and then orally with commendable clarity. The children’s appeal is focussed upon the management of the process of publicity, and is not a root and branch challenge to the ultimate publication of the fact finding judgment in due course following the conclusion of the review hearing. The principal concern of the Guardian relates to the impact on the children of day to day publicity at a stage when they cannot be told with any clarity what the judge has decided in relation to the circumstances surrounding their sister’s death. Ground (iii) was withdrawn at the hearing.

[25] Miss Bazley submits that the ultimate balancing test on the issue of whether or not there should be publicity is governed by the need for proportionality. In undertaking that balance Miss Bazley submits that the judge had placed too great an emphasis on the need for openness in the court process, without proper consideration of the harm that the resulting publicity may cause to the children. In particular, daily reporting of the proceedings is contrary to the advice of the Children’s Guardian to the effect that it will be extremely difficult for the foster carer and/or the school to protect the children from the harmful effect of such publicity which, by definition, cannot be the subject of advance warning to the professionals involved and cannot allow time for adequate preparation of the children for what they may see or hear in the media.

[26] On behalf of the father, Mr Karl Rowley QC, and Miss Scully, support the appeal albeit that they accept the existence of a strong public interest in favour of the publication of the court’s final judgment in due course. Mr Rowley argues that the public interest in this case might be thought to have two principal elements: the failures of public bodies and the finding that a father sexually abused his infant daughter. The first element is a static factor which will not be compromised by publication once the fact finding review had been completed. The second element is, however, far more subject to variation, with every possibility that the earlier factual conclusion may be overturned once the new expert evidence has been considered. Publication of the medical evidence within the 2014 judgment prior to the commencement of the new hearing will, therefore, it is argued, present a markedly distorted picture. Finally, in terms of the balance of harm, the father supports the submissions of the Guardian as to the risk of harmful consequences for the children resulting from publication, as compared to the public interest which will be harmed to a much lower degree if publication is simply delayed for a short period.

[27] So far as the other parties are concerned, the local authority neither supports the Guardian’s appeal nor seeks to uphold the judge’s decision on alternative grounds. The children’s mother supports the judge’s decision.

[28] The main source of opposition to the appeal before this court is presented by Ms Caoilfhionn Gallagher, counsel instructed on behalf of the eight media organisations who have been grouped together as 4th respondents to the appeal. In summary, Ms Gallagher’s submissions are as follows:

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.

Transparency: the legal context

[29] In support of her reliance upon what was referred to as ‘the open justice principle’ Ms Gallagher relied upon the core authorities in her skeleton argument. It was not necessary to take the court to them in any detail during the appeal hearing. Starting with Scott v Scott [1913] AC 417, the case law has consistently emphasised that open justice is an important principle at the heart of our justice system. R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966; Global Torch Ltd v Apex Global Management Ltd [2013] 1 WLR 2993; R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court and the Government of the USA [2013] QB 618 are three of the key authorities cited by Ms Gallagher in support of her submission that there is a strong presumption in favour of open justice.

[30] That there is, in general, a strong presumption in favour of openness is well established and Ms Gallagher’s broad submission, insofar as it applies to ordinary litigation, was not controversial as between the parties. It is, however, also well established that there are exceptions to the general presumption and that one such exception concerns proceedings relating to the welfare of children.

[31] Scott v Scott was a case that arose from the Probate, Divorce and Admiralty Division and related to the hearing of a suit for nullity or divorce. The House of Lords held that the court had no power, either with or without the consent of the parties, to hear the main suit in matrimonial proceedings for nullity or divorce in camera in the interests of public decency. The applicability of the general public interest in open justice therefore applied in full to proceedings relating to the matrimonial status of an individual. The speeches of their Lordships, however, expressly accept that proceedings in wardship were an exception to the general rule.

[32] The modern law in relation to the confidentiality of proceedings relating to children is contained in statute, the principal provision being the Administration of Justice Act 1960, s 12:

‘12 (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say:(a)where the proceedings:

(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;

(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or

(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.’

Proceedings to which the Family Procedure Rules 2010 apply will be held in private, except where those rules, or any other enactment, provide otherwise, or, subject to any enactment, where the court directs otherwise (FPR 2010, r 27.10). Child protection proceedings under CA 1989, Part 4 are proceedings to which the FPR 2010 apply, and are therefore held in private. The prohibition established by AJA 1960, s 12 remains in force after the conclusion of the proceedings (Clayton v Clayton [2006] EWCA Civ 878).

[33] The default position established by AJA 1960, s 12 and FPR 2010, r 27.10 is, therefore, that publication of information relating to public law proceedings with respect to a child under CA 1989, Part 4 is liable to be a contempt of court unless the court directs otherwise. The rules provide for exceptions with respect to communication of information from proceedings held in private to a range of professional and agencies (for example legal advisers, the Legal Aid Agency, a welfare officer) in order to facilitate the progress of the proceedings (FPR 2010, r 12.73).

[34] By FPR 2010, r 27.10(2), ‘reference to proceedings held “in private” means proceedings at which the general public have no right to be present’. In relation to ‘duly accredited representatives of news gathering and reporting organisations’ an exception is established by FPR, r 27.11(2) which permits the attendance of such an accredited media representative at a ‘private’ hearing, subject to the court’s power to exclude attendance. Attendance at a private hearing remains, however, subject to the overall restriction on publication imposed by AJA 1960, s 12 (and the specific restriction on naming the child and/or the child’s school established by CA 1989, s 97(2)). In the context of the present case, subject to the court’s power to exclude, the default position under the current law is that accredited media representatives could attend the fact finding hearing within these care proceedings, but they would be unable to report what they saw, heard or read within the proceedings.

[35] It is well established that the family court and the High Court has the power to relax the prohibition on reporting on a case by case basis (see Re Webster; Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam) and Medway Council v G and Others [2008] EWHC 1681 (Fam)). This power is reflected in FPR 2010, r 12.73:

‘(1) For the purposes of the law relating to contempt of court, information relating to proceedings held in private (whether or not contained in a document filed with the court) may be communicated:

(a) …; or

(b) where the court gives permission; or

(c) ….’

[36] Throughout her submissions, Ms Gallagher repeatedly referred to the existence of a ‘presumption of open justice’ which, it was submitted, should govern the court’s decision in the present case. With respect to Ms Gallagher, whose submissions were otherwise firmly argued from a cogent legal basis, any presumption or principle in favour of open justice which applies generally to court proceedings does not apply to proceedings that are held in private and which relate to children. The default position in such cases is to the contrary and is, as I have described, as a matter of statute and the rules, one which prohibits the publication of any information relating to the proceedings. That default position, which is designed to protect children, can, where appropriate, be modified by a judge upon the application of a party or the media. It has in any event been tempered by the President’s transparency initiative, the purpose of which is to allow greater public access to, and understanding of, the work of the family courts.

[37] In the present case, Jackson J used the power available to him to move from the default position so as to allow a controlled degree of publicity. This was a matter for the judge’s discretion. It was common ground before this court that that discretion must be exercised by conducting a balancing exercise between the rights to privacy and a private life which are encompassed within ECHR, Art 8, on the one hand, and the right to freedom of expression reflected in Art 10. The parties in this appeal each accepted that the exercise of judicial discretion whether to relax, or increase, the default restrictions upon publication of information from CA 1989 proceedings is not one in which paramount consideration must be afforded to the welfare of the child who is the subject of the proceedings. That acceptance was based upon a number of first instance decisions, together with the Presidents Guidance on the publication of judgments.

[38] The President’s Guidance: Transparency in the Family Courts: Publication of Judgments was issued on 16th January 2014. As paragraph 1 states, the guidance was ‘intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts and the Court of Protection.’ Paragraphs 9 and 10 describe ‘the legal framework’ as it ordinarily applies:

‘9. The effect of section 12 of the Administration of Justice Act 1960 is that it is a contempt of court to publish a judgment in a family court case involving children unless either the judgment has been delivered in public or, where delivered in private, the judge has authorised publication. In the latter case, the judge normally gives permission for the judgment to be published on condition that the published version protects the anonymity of the children and members of their family.

10. In every case the terms on which publication is permitted are a matter for the judge and will be set out by the judge in a rubric at the start of the judgment.’

[39] Paragraphs 11, 12 and 13 acknowledge that there will be cases which justify a judge taking a course regarding publication which differs, one way or the other, from the norm described in paragraph 9.

[40] The guidance (paragraph 15) then seeks to distinguish between two classes of judgment:

‘(i) those that the judge must ordinarily allow to be published (paragraphs 16 and 17); and

(ii) those that may be published (paragraph 18).Schedule 1, which forms part of paragraph 17, applies to decisions of the Family Court relating to children and provides a list of categories of case to which the ordinary requirement for publication in sub-para (i) applies. This list includes, as (i): ‘a substantial contested fact-finding hearing at which serious allegations, for example allegations of significant physical, emotional or sexual harm, have been determined’.

The guidance under paragraph 15(i) therefore plainly applies to the present case.A point not argued: Is the child’s welfare paramount?

[41] 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.

[42] 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.

[43] 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.

Discussion


[44] It is helpful to recall that this appeal was heard at a particular stage in this long-running litigation. A good deal of procedural history had not only accumulated in the family proceedings but also in terms of the criminal process, the inquest and the Administrative Court action. In consequence of decisions taken along the way, and in part in consequence of the ordinary publicity given to the criminal process in a case of public interest, a significant amount of detail about this case was already in the public domain.

[45] In addition to that significant factor, it is also important to stress that one judge, namely Mr Justice Peter Jackson, had maintained a tight control of the family proceedings, including the numerous issues relating to publicity, from first to last. As the judge in the case, and, more generally, as the Family Division Liaison Judge for the Northern Circuit, he, much more than the judges of this court, is best placed to understand the pressing nature of the need for openness in this case and to have a feel for the genuine public interest locally in the proceedings.

[46] As his judgment of 6th November 2015 makes plain, Jackson J sought to strike a balance between ‘the public interest in there being the greatest achievable openness in such a serious and worrying case’ (the Art 10 side) and ‘the public interest in the protection of vulnerable children who are innocent victims of circumstances outside their control, and the legitimate interests of the adults concerned’ (the Art 8 side). In striking that balance, for the reasons that I have already summarised, the judge considered that, in this case, there was an ‘extremely strong public interest in the availability of information about the death of a child in troubling circumstances, and about the manner in which it has been investigated.’

[47] The Appellants’ case is not that the judge failed to apply the correct test, but that the outcome was disproportionately in favour of publication and openness, to the unnecessary detriment of the children. Dealing with the various aspects of the appeal in turn, the first point taken relates to the inclusion of the judge’s summary of the 2013 medical evidence in the version of his first judgment prepared for publication prior to the start of the rehearing. Miss Bazley’s core submission on this point was that there was a real debate to be conducted in the re-opened hearing over the medical evidence and to issue a summary of the 2013 evidence alone would present only a partial picture to the public. It may merely invite speculation in a manner that will be profoundly unhelpful for the children and, if as might be the case, the judge comes to reject that earlier evidence such speculation will have been to no good purpose. The appellants’ case on the medical evidence is that it is better for it all to be released in one go in a judgment at the end of the process.

[48] Ms Gallagher submits that it is important for the media to be able to report on the process of the hearing and then re-hearing, and that, for the process to be understood, it was necessary to be able to report on the medical evidence as it had been at the original hearing.

[49] Having heard argument on this point, and despite the wide margin of discretion to be afforded to the judgment of Jackson J in this case, I am persuaded that the publication of the previous summary of the medical evidence would, in reality, add little to the information that is very soon to come into the public domain via the means of daily reporting or through publication of the final judgment. I accept the Appellants’ argument that the potential for confusion by publication of what, by definition, is a partial summary of the totality of the medical evidence that is now available outweighs the possible benefit. I also accept that the summary as it currently stands strongly indicates what the judge’s findings will have been back in 2014.

[50] For those reasons we held that the Appellant’s first ground of appeal succeeds to the extent that the version of the 2014 judgment that was to be released for publication at the start of the hearing should be further edited to remove all reference to the medical evidence. In this manner, the media and the public will have a convenient and succinct summary of the background, and no more, as an introduction to the rehearing.

[51] The second focus of the Appellants’ case is upon the plan for daily court reporting. Miss Bazley submitted that ‘live’ daily reporting is a novel development in child protection proceedings. It is a process that goes far further, in terms of transparency, than the mere publication of the final judgment which is the focus of the current Presidents Guidance and it is a topic that is really only at the ‘preliminary pre-consultation’ stage of discussion within the family justice system generally.

[52] In relation to this ground, but also more generally, Miss Bazley pointed out that the future welfare of the children would turn upon the outcome of the rehearing. If the present findings against the father are set aside, it is likely that the children will be rehabilitated into his care. The children are, it was submitted, likely to be aware of this potential consequence and thus the impact of reporting, particularly daily reporting, is likely to be profoundly upsetting for the children.

[53] 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.

[54] 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’.

[55] 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.

[56] 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.

[57] 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.

[58] 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.

[59] 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.

Lady Justice Macur
:

[60] I agree.

Lady Justice King
:

[61] I also agree.
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