(Family Division, Peter Jackson J, 6 November 2015)
Publicity and reporting – Fact-finding hearing – Death of a childThe judge determined that the fact-finding judgment in relation to the death of 13-month-old Poppi Worthington in 2012 would be published once the forthcoming hearing was underway and that accredited media representatives could be present and provide daily news reporting.
Neutral Citation Number:  EWHC 3228 (Fam)Case No: CA13C000119IN THE HIGH COURT OF JUSTICEFAMILY DIVISIONDate: 6 November 2015
THE HONOURABLE MR JUSTICE PETER JACKSON
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Cumbria County Council
The Children (by their Children’s Guardian)
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Karl Rowley QC and Jenny Scully (instructed by Livingstons Solicitors) for the Father
Jane Cross QC and Peter Rothery (instructed by Cumbria County Council) for the Applicant
Gillian Irving QC (instructed by Denby Co Solicitors) for the Mother
Andrew Bagchi QC and Carly Henley (instructed by Bendles Solicitors) for the Children’s Guardian
Caoilfhionn Gallagher for Associated Newpapers Ltd, The BBC, CN Group, Guardian News and Media Ltd, Independent Print Ltd, the Press Association, Telegraph Media Group and Times Newspapers Ltd
Hearing date 2 November 2015
Judgment dates 6 and 11 November 2015
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Mr Justice Peter Jackson:
This further judgment concerns issues of publicity surrounding a forthcoming Family Court hearing arising from the death of Poppi Worthington in December 2012. That hearing will take place in Liverpool on 23 November, with the first witness giving evidence on the following day, and is estimated to last for 10 days.
When acceding to the father's application for this further hearing last July, I fixed this hearing to consider whether the time had come to publish the fact-finding judgment given in March 2014. I expressed the provisional view that it should be published at or around the time that the further hearing began, rather than being withheld until it ended. I noted the proper public interest in the course that these proceedings, and the other procedures surrounding Poppi’s death. I observed that the media would be able to describe matters more effectively if the original findings could be described at the point when they come under review. I also raised the possibility of the further hearing taking place in public.
At this hearing, the following issues have therefore been considered:
i) The timing of any of any publication of the 2014 judgment.
ii) Whether, if the judgment is to be published now, it should be published in full or in part.
iii) Whether there should be any variation of the terms of the existing reporting restriction order and to the undertakings required of lawyers for the media.
iv) Whether the hearing should be conducted with accredited members of the media present.
v) Whether the hearing should be in open court or in private. vi)Whether reporting of the hearing should be contemporaneous.
vii) What documents should be given to the media to allow it to follow the hearing.
Having heard submissions from the parties and a large section of the media about these issues, my decision is as follows:
- The main part of the 2014 judgment will be published at the beginning of the further hearing by being placed on the Bailii website at noon on 23 November. The published sections will include a narrative of the events surrounding Poppi’s death, an account of the concerns expressed about the investigations that followed, and a summary of the medical evidence that was then available. The only part of the judgment that will not be published at that point is the largely self-contained section containing the court's findings at that stage: this will be published along with the court's judgment following the further hearing.
- The reporting restriction order that provides that the mother and children cannot be named will remain in effect.
- The media lawyers will be released from their undertaking in relation to the secure retention of the 2014 judgment on the basis that it is accepted that any material not approved for publication by the court remains confidential and subject to the reporting restrictions.
- The further hearing will take place in the presence of any accredited media representatives that wish to attend.
- The documents to be provided to the media representatives who attend (and only those who attend) are agreed to be the medical reports, minutes of experts meetings and schedules of agreement and disagreement and, subject to the restriction indicated above, a copy of the full 2014 judgment.
- The hearing will not be held in public.
- However, subject to any later order to a different effect, daily news reporting will be permitted, provided that (i) until the publication of the final judgment, nothing is to be reported that might directly or indirectly indicate the nature of the court’s 2014 findings, and (ii) the court will retain the power to give directions concerning what can and cannot be published if an issue arises during the course of the hearing.
- The judgment at the end of the further hearing will be given in public.
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.
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:  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.
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.
If it had been appropriate to publish the 2014 judgement in its entirety, there would in my view have been merit in the suggestion that the further hearing should take place in public. However, given that the judgment cannot be published in full, it would not be right for the court to sit in public when it has no means of protecting information that should remain confidential.
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.
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.
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.
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.
This ruling will be published on the Bailii website.Postscript: 11 November 2015.
On 9 July, I directed the Children's Guardian to file a report in relation to publicity issues by 12 October. This report was not filed and the hearing on 2 November took place without it. I was told at the hearing that the Guardian had made arrangements to visit the children the following week, but all parties, including the Guardian, agreed that the court's ruling on publicity need not await that meeting.
The Guardian saw the oldest child on 5 November and consulted the foster carer and the school. On 6 November, having received the above judgment, which was due for publication on 9 November, she invited the court to consider her report and further submissions on behalf of the children. I agreed, and set a short timetable for the receipt of the further information.
The Guardian now submits that the 2014 judgment should be further edited to remove references to the medical evidence. It is said that to publish the medical evidence without the court’s findings will allow for harmful speculation.
The Guardian also submits that daily reporting would increase the impact on the children of publicity. It is said that without daily reporting, the harm that may come to the children, particularly the older children, can better be controlled, with information being given in instalments. The second and third children are not aware of the further hearing. The oldest child is, and is very anxious about the reporting of things that she thinks should be private. The Guardian writes that the children "need to be in control of whether or not they share information around Poppi’s death with their friends and others involved in their lives. They will be caused emotional distress if this control is taken away from them and this will be increased if they are subjected to questions from their friends and others."
A detailed response has been filed by the media organizations, supporting the ruling as it stands. The local authority does not favour further editing of the judgment and makes no further comment on the issue of daily reporting. The mother does not seek any change to the original ruling. The father supports the submissions of the Guardian.
Whenever children are caught up in the consequences of a family death that must be investigated, their situation is a painful one. Publicity is never beneficial for vulnerable children and the subject matter here is extremely distressing. I have great sympathy for, and I hope understanding of these children’s feelings. However, the Guardian’s report does not cause me to revise the arrangements for the publication and reporting of these proceedings.
As to daily reporting, in the first place, the report does not contain unexpected information but instead confirms considerations that had already taken into account. Secondly, I have already described the idea that the court can control the reporting in this case as illusory. If daily reporting is not allowed, the media can still pursue the story in other ways, including on a daily basis. Thirdly, it is asserted that daily reporting will make the situation significantly more difficult for the children, but this assertion has not been established with reference to the sort of material that is likely to be published or the degree of harm that it is said would flow. I accept that the entire process is likely to be distressing for the children in the immediate future, but their carers and teachers will be on the alert to protect and support them as much as possible. Fourthly, it is sadly not possible to approach matters on the basis that these young children can be in control of information about their sister's death. Lastly, the children themselves have a long-term interest in the issues arising from Poppi’s death being resolved justly and in a way that commands public confidence.
Nor am I persuaded to reduce the amount of material placed in the public domain by omitting the medical evidence. It is a central component of the case and it would be artificial to withhold it. It would also, as the media submits, be illogical to publish the narrative judgment without it, because the earlier part of the narrative contains a substantial amount of similar material. Incidentally, Ms Gallagher is also correct to say that my proposal was always to publish the medical evidence: the decision goes no further than the indication given during the hearing.
I therefore affirm the outcome indicated in the judgment issued on 6 November.