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Publicity and Poppi Worthington

Date:9 MAR 2016
Solicitor Advocate

Rehearing of fact-finding hearing

Re W (Children) [2016] EWCA Civ 113 is an appeal against aspects of a reporting restrictions order made by Peter Jackson J in relation to a renewed fact-finding hearing in relation to his earlier findings as to the death and injuries prior to death of Poppi Worthington. That re-hearing is published as F v Cumbria County Council and M (Fact-Finding No. 2) [2016] EWHC 14 (Fam).

The Court of Appeal emphasises two aspects of the family courts’ jurisdiction in this area, and leave a third open for decision – perhaps – in later case:

(1) That the ‘default position’ (explained below) in children proceedings is publicity is the exception;

(2) That in any case it is a matter for the individual judge’s discretion as to whether publicity is permitted in children proceedings and whether there should be any relaxation of Administration of Justice Act 1960 s 12(1)(a);

(3) That the law, says McFarlane LJ, remains to be decided as to whether a child’s welfare is the paramount in a family courts’ decision on publicity.

Poppi’s death and the hearings before Peter Jackson J

The injuries suffered by Poppi were following her death were a fracture to her lower leg and acute injuries in the region of her anus; though it was thought, at the first hearing of care proceedings for her surviving siblings, that the original medical evidence had not achieved sufficient clarity so as to identify the cause of her death. Peter Jackson J therefore allowed a further hearing, on the father’s application, which he explained in F v Cumbria CC as follows:

'[122] For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for [Poppi’s] bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.'

The judge concluded, on the re-hearing as he had before: namely that the father had caused Poppi’s injuries. The care orders remained.

This note is prepared on the publicity aspects of the case alone. As it happens – care proceedings were finally issued by Cumbria County Council in October 2013 – the case parallels the introduction of the President’s Practice Guidance of 16 January 2014, Transparency in the family courts: Publicity of Judgments. Peter Jackson J traces the history of publication – or not – in F v Cumbria CC as follows:

'[22] The fact-finding judgment in March 2014 was not published at that time for two reasons: the risk of prejudicing any criminal proceedings in respect of which a charging decision was awaited, and the need to protect these vulnerable children and their mother from public identification at a particularly sensitive stage in the planning for the children's future.

[23] In addition to the court's duty to determine whether or not a judgment should be published, there is a power that can be exercised by the High Court to make reporting restriction orders where necessary for the protection of individuals or the interests of justice. Such orders are made sparingly, bearing in mind the importance of free speech.

[24] On 27 June 2014, the local authority applied for a reporting restriction order in wide terms ... I made an order in narrower terms.

[25] In a further judgment given on 28 July 2014, I granted a request made by the media for its lawyers to be provided with a copy of the fact-finding judgment: [2014] EWHC 2596 (Fam).

[26] After [a] coroner's inquest on 21 October 2014, I made a public statement on 27 October 2014 to explain why a reporting restriction order had been made and why it was not possible to publish the fact-finding judgment at that point. I acknowledged the concern that existed when the circumstances of a child's death were not made known: Poppi Worthington: Reasons for the current reporting restrictions …

[28] At the hearing in January 2015, I published a redacted note of the reasons given for the reporting restriction order in July 2014: [2014] EWHC 4486.'

The reporting restrictions order

The publicity position before the Court of Appeal was summarised by McFarlane LJ at paras [11] and [12] as follows:

'(1) There should be no restriction upon naming both of Poppi and of her father, so that a forthcoming inquest and any criminal proceedings could be conducted with some degree of openness.

(2) No restriction was imposed upon naming the agencies that had been involved, with the exception of the hospital (this restriction was later lifted).

(3) The judge retained a restriction upon reporting the names of the surviving children and the mother, and the specific identification of the locality in which the family had lived.

(4) The judge's fact finding judgment remained confidential.

(5) The judge granted a later request made by the media for a senior lawyer in each of the media organisations to be provided with a copy of the fact finding judgment which could inform any application to be made to challenge the publicity order and its scope.'

In respect of the second fact-finding hearing – or re-hearing – the order remained (see para [19]) 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.'

The appeal was allowed only to the extent of (1) removing reference to medical evidence as it occurred in the march 2014 judgment and (2) with tighter control of daily reporting (paras [57] and [59]). McFarlane LJ prefaced his remarks on daily reporting by admitting to 'substantial unease':

'[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."'

At a time when Dr Julie Doughty at Cardiff University has just taken up a research grant to deal with this very aspect of judicial anxiety (alongside the work of Dr Julia Brophy), it is worth recording how real are the grounds for McFarlane LJ’s concerns.

Article continues below...

Open justice: a default position

In passing – though it is an important point – McFarlane LJ was firm on one aspect of the submissions made by counsel for the press. It was suggested by her that the ‘default position’ in any publicity case was the ‘open justice principle’ (a term used by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618 and adopted by subsequent Supreme Court jurisprudence).

Not so, said McFarlane LJ (para [33]). If any presumption exists as to open court, this may be so in the general run of civil proceedings; but it is not the case in children proceedings. There the starting point is Administration of Justice Act 1960 (‘AJA 1960’) s 12(1)(a) which provides:

'(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 ...'

So he says, the ‘default position’ where proceedings are covered by s 12(1) ‘is liable to be a contempt unless the court directs otherwise’ (para [33]). Children proceedings will be private (FPR 2010 r 27.10; and subject to any rare direction otherwise). This leads to the conclusion that for children proceedings there can be no ‘open court presumption’:

'[34] … Attendance at a private hearing remains … 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)) ...'

Relaxation of controls: judicial discretion

As already mentioned, the Court of Appeal was ‘uneasy’ at the judge’s approach to daily reporting; but it was stressed by McFarlane LJ that this was a matter for the judge’s discretion which must be accorded a wide margin on appeal (para [56]). The extent to which a judge may depart from the restrictions on publicity demanded by AJA 1960 s 12(1) justify repetition here. In the months before his practice guidance on ‘transparency’ Sir James Munby P gave judgment in Re J (A Child) [2013] EWHC 2694 (Fam) and explored the extent to which judge’s may diverge from strict adherence to privacy.

He starts by pointing out the ‘automatic constraints’ on publicity. Children Act 1989 s 97 (prohibits publication, but only till the conclusion of proceedings (Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11)). Administration of Justice Act 1960 s 12(1) (above) relates to ‘proceedings in private’, including family proceedings, but narrows those proceedings to those in relation to children. It does not apply to ‘anyone involved in the proceedings’ (eg expert witnesses, social workers, the local authority etc; and see Clayton above). Injunctions for the anonymity of others involved in the process – eg medical witnesses, social workers etc – will rarely be granted, ‘unless there are compelling reasons’ (para [24]).

The court can extend or reduce the automatic constraints publicity; but to do so it must conduct a balancing exercise within the European Convention 1950 as described by Lord Steyn in the House of Lords in Re S (Identification: Restrictions on Publication) [2004] UKHL 47 (at para [17]). It is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect, said Lord Steyn. The interests of the child must be a primary consideration (ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at para [33]). The balance must be drawn between respect for the child’s private life (Art 8) and the right of the press and a parent or others who might want (as in Re J) to publicise information (Art 10).

In conducting that balancing exercise, the primacy of the best interests of the child must be considered. This was further explained in the Supreme Court in (not considered by Sir James) H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25 where Lord Kerr said:

'[144] … It is unquestioned that in each of these cases, the children's article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children's rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference….

[145] ….no factor must be given greater weight than the interests of the child.'

Like ZH, H(H) related to children in immigration proceedings (ie not involved with publicity), but the principles in relation to the interests of children are parallel.

The views of parents ‘caught up in it’ should be discussed publicly, and that they must be able to publicise their views of the failings of judges or the system or criticisms of local authorities. The judge must not be permitted to exercise any form of editorial control over this. In Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949 at para [89]) Sir James (as Munby J) had emphasised that:

'[37] …. judges are not arbiters of taste or decency …. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists …'

The court was not entitled, in this jurisdiction, to seek to prevent dissemination because material might seem defamatory or criminal.

Paramountcy issues

Two quite distinct paramountcy issues arise in this case. Neither were resolved: perhaps they need not have been. On the question of whether the paramountcy of a child’s interests applies, McFarlane LJ said only that the question had not been fully argued:

'[41] … 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.'

It is not possible to tell from the judgment whether the cases referred in relation to Re J (above) were referred to the court in Re W; nor whether this aspect of Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 was dealt (probably not given the limits on time likely to have been available to the court). It is possible, in view of Lord Kerr’s comments on sequencing that the primacy of child’s interests has been dealt with in the Supreme Court.

What was unquestionably in issue in the House of Lords in Re S [2004] was the importance of press freedom which Human Rights Act 1998 guarantees. In Re S this special provision – not quite paramountcy for the press – was referred to by Lord Steyn thus (after he had set out the exact terms of European Convention 1950 Arts 8 (right to respect for family life) and 10 (freedom of expression):

'[16] … By section 12(4) of the Human Rights Act 1998 Parliament made special provision regarding freedom of expression. It provides that when considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of the right.'

Issues under Art 8 and 10 are central to any reporting restrictions order application. The rights of the press under s 12(4) will always be in contention where publicity for children proceedings are concerned and as explained in Re S.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.