(Family Division; Munby J; 21 December 2008)
The child, who suffered from autism, early attachment disorder and learning difficulties, had been accommodated by the local authority with the mother's consent. Thereafter, the mother had played no effective part in parenting the child. By the time the child was 15 she was frequently absconding from foster placements, was involved in inappropriate and exploitative sexual relationships, and had attempted suicide on a number of occasions. When she gave birth to a child, shortly after her 15th birthday, care proceedings were issued in relation to the baby, and the Official Solicitor was appointed to act on behalf of the teenage child, who was not competent to give instructions. The Official Solicitor took the view that the local authority should have issued care proceedings in respect of the teenage child, and applied for judicial review of the authority's refusal to do so. Eventually, after the teenage child had to be placed in secure accommodation to prevent further absconding, the authority did issue care proceedings. The child, acting by the Official Solicitor, brought a claim against the local authority and the independent review officer, arguing that the authority and the officer had breached the child's human rights by breaching their duty to the child as a 'looked after' child. Eventually the child and the authority agreed a compromise, which was approved by the court. The compromise included a confidentiality clause. At the hearing the issues that remained were whether the local authority was to be identified publicly, notwithstanding the confidentiality clause within the compromise, the extent to which the confidentiality clause had been approved, and whether wider issues concerning the duties owed to looked after children should be dealt with. The Official Solicitor took the view, in particular, that if parents were not engaging with reviews of looked after children, so that nobody was effectively exercising parental responsibility, serious consideration should be given to instigating care proceedings.
By approving the confidentiality clause, as part of the compromise, the court had satisfied itself both that the clause was lawful, and that it was in the child's best interests. Confidentiality negotiated between parties was not to be breached by the court, and a clause approved and made part of an order bound the court as much as it bound the parties. However, nothing in the confidentiality clause as agreed prevented public dissemination of the court order, which was a public document, or of the particulars of claim, which had been in the public domain when the order was made. The court should be slow to approve a confidentiality clause of this kind on behalf of a child, but in this case the confidentiality clause had been appropriate, not least because the child was unlikely to express any wish to 'go public' and it had been in the interests of the child to end the litigation. Nonetheless, the authority was to be named publicly; identifying the authority was not likely to lead to the identification of the child and no good reason had been shown to justify maintaining the authority's anonymity. The case did involve wider issues concerning 'looked after children', but, while prepared to place these on record, the court could not comment on them.