England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
Sitting at the ROYAL COURTS OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 August 2017

This judgment was handed down in open court

Sir James Munby, President of the Family Division :

1. This is part of the aftermath to the judgment of the Court of Appeal (Sir James Munby P, McFarlane and Christopher Clarke LJJ), on appeal from a judgment of His Honour Judge Gavyn Arthur (sitting as a judge of the High Court in the Family Court) in care proceedings relating to various children, reported as In re W (A Child) (Care Proceedings: Non Party Appeal) [2016] EWCA Civ 1140, [2017] 1 WLR 2415. It suffices for present purposes to say that the appeal was by a social worker ("SW") and a police officer ("PO"), each of whom had given evidence before Judge Arthur.
2. The appeal dealt with various difficult points of law, but what is important for present purposes is the finding by the Court of Appeal, as set out in paragraphs 97 and 98 of the judgment of McFarlane LJ (with which both Christopher Clarke LJ and I agreed), that:

"… the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge …

… The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been 'put' to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.

… the process adopted by the judge [fell] short by a very wide margin of that which basic fairness requires in these circumstances."

3. The order we made on 17 November 2016, having allowed the appeals of SW and PO, included the following:

"2 The Judgment, subject to appeal, shall be amended as directed in the Judgment of this court.

3 The only the judgment of the judge which is to be made public is an amended and redacted version of the full fact-finding judgment.

5 Pursuant to section 4(2) of the Contempt of Court Act 1981 there shall be no publication or any report of the proceedings, or any part of the proceedings, before this court. For the avoidance of doubt, this prohibition extends to the naming of the trial Judge and the Court in which she or he was sitting."

In fact, and despite that order, the name of the judge – His Honour Judge Gavyn Arthur – was published on page 2419 of the report of In re W (A Child) (Care Proceedings: Non Party Appeal) [2016] EWCA Civ 1140, [2017] 1 WLR 2415.

4. In a witness statement by her solicitor dated 12 May 2017, SW indicated her intention to bring claims in the Queen's Bench Division for damages for misfeasance in public office, and for breaches of ECHR Articles 6, 8 and 14, against the Lord Chancellor and or the Ministry of Justice, on the basis that they "bear vicarious liability for the Judge's acts." The matter came before the Court of Appeal (McFarlane LJ) on 22 May 2017. He authorised the disclosure by SW to the solicitors instructed by her in the proposed civil action of the papers in the appeal. The order made by McFarlane LJ also provided that:

"3 SW's application for further disclosure of papers is transferred to be heard in the Family Court, to be listed before the President of the Family Division (unless released by him to another judge) …

4 The prohibition upon publication contained in paragraph 5 of the order of this court of 17^th November 2016 shall continue to have effect but is released by this court to the Family Court for consideration of any application to vary the order."

5. The application came before me, sitting at first instance in the Family Court, on 25 July 2017. SW was represented by Mr William Tyzack and the local authority by Mr Andrew Norton QC and Ms Gemma Kelly. PO, although notified of the hearing was neither present nor represented. Nor were the children the subject of the care proceedings.
6. At the conclusion of the hearing I made the order which is set out in the Annex to this judgment. It is, I hope, largely self-explanatory, but there are two matters which require elaboration.
7. The first relates to my decision to permit initial disclosure, on the basis, as recited in the order, that:

"the disclosure authorised by this order is necessary to enable SW to commence the Queen's Bench proceedings and (being subject to the safeguards set out below) is compatible with the Article 6 and Article 8 rights of PO and of the Children."

The applicable principles are well-known and do not require repetition. I merely observe that, subject always to the imposition of any necessary safeguards and conditions, family courts should not stand in the way of, and should, on the contrary, take all appropriate steps to facilitate, the proper administration of justice elsewhere. This principle is well recognised in the authorities both in relation to the criminal justice system and in relation to tribunals as varied as those dealing with medical discipline and criminal injuries compensation. It is, of course, equally applicable in relation to the civil justice system.

8. The other matter relates to the specific safeguards and conditions set out in paragraphs 5 and 6 of the order. These include various provisions modelled on those which I included in the order I made in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673 (appeal dismissed [2001] EWCA Civ 2014, [2002] 1 FLR 1045), a case involving disclosure of family court papers to the General Medical Council and other medical regulatory and disciplinary authorities.

Annex: the order

"UPON READING the judgment of the Court of Appeal (Sir James Munby P, McFarlane and Christopher Clarke LJJ) reported as In re W (A Child) (Care Proceedings: Non Party Appeal) [2016] EWCA Civ 1140, [2017] 1 WLR 2415, being an appeal, B4/2015/1962, from a judgment of His Honour Judge Gavyn Arthur (sitting as a judge of the High Court in the Family Court) in care proceedings, LU12C0341/LU13C03205, relating to various children ("the Children"), the appeal being, so far as material for present purposes, by a social worker ("SW") and a police officer ("PO")

AND IT APPEARING from paragraphs 97 and 98 of the judgment in the Court of Appeal of McFarlane LJ (with which Christopher Clarke LJ and Sir James Munby P both agreed) that the Court of Appeal found that:

"… the private life rights of SW and PO under Art 8 of these individuals as witnesses would be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge …

… The process, insofar as it related to the matters of adverse criticism that the judge came to make against SW and PO, was manifestly unfair to a degree which wholly failed to meet the basic requirements of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that were properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been 'put' to SW or PO and the judge did not raise them even after the evidence had closed and he was hearing submissions.

… the process adopted by the judge [fell] short by a very wide margin of that which basic fairness requires in these circumstances."

AND UPON READING the order of the Court of Appeal dated 17 November 2016 which, having allowed the appeals of SW and PO, provided inter alia that:

"2 The Judgment, subject to appeal, shall be amended as directed in the Judgment of this court.

3 The only the judgment of the judge which is to be made public is an amended and redacted version of the full fact-finding judgment.

5 Pursuant to section 4(2) of the Contempt of Court Act 1981 there shall be no publication or any report of the proceedings, or any part of the proceedings, before this court. For the avoidance of doubt, this prohibition extends to the naming of the trial Judge and the Court in which she or he was sitting."

BUT IT APPEARING from page 2419 of the report of the judgment of the Court of Appeal in In re W (A Child) (Care Proceedings: Non Party Appeal) [2016] EWCA Civ 1140, [2017] 1 WLR 2415, that, despite that order, the name of the judge ("the Judge") has been published

AND UPON READING the witness statement of SW's solicitor dated 12 May 2017 indicating the intention of SW to bring claims for damages for misfeasance in public office and for breaches of ECHR Articles 6, 8 and 14; setting out the view that the appropriate defendants are the Lord Chancellor and or the Ministry of Justice (who, it is said, "bear vicarious liability for the Judge's acts"); and indicating that the proceedings ("the Queen's Bench proceedings") will be issued in accordance with CPR 7.11(1) in the Queen's Bench Division

AND UPON READING the order of the Court of Appeal (McFarlane LJ) dated 22 May 2017 which provided inter alia that:

"UPON the solicitors acting for SW in the proposed civil action undertaking not to disclose the papers to be released to them pursuant to the order below to any other person, save for any counsel instructed to advise in the proposed action, without the permission of this court or a judge of the Family Division.

…

IT IS ORDERED

1 Permission to SW to disclose to her solicitors instructed in the proposed civil action the papers received by her in the course of her participation in this appeal. For the avoidance of doubt this permission shall include all draft judgements in the court below.

3 SW's application for further disclosure of papers is transferred to be heard in the Family Court, to be listed before the President of the Family Division (unless released by him to another judge) … The listing of this hearing is to be expedited owing to the urgency of the application.

4 The prohibition upon publication contained in paragraph 5 of the order of this court of 17th November 2016 shall continue to have effect but is released by this court to the Family Court for consideration of any application to vary the order."

AND UPON THE APPLICATION of SW seeking disclosure and use of certain information and documents in and for the purpose of pursuing the Queen's Bench proceedings

AND UPON HEARING Mr William Tyzack of counsel on behalf of SW and Mr Andrew Norton QC and Ms Gemma Kelly of counsel on behalf of the local authority

AND UPON READING an email dated 24 July 2017 from Mr Ben Brandon of counsel on behalf of PO stating that he was instructed not to attend the hearing

AND UPON SW by her counsel asserting, on the authority of Re N (Family Proceedings: Disclosure) [2009] EWHC 1663 (Fam), [2009] 2 FLR 1152, paras 54, 59, that she is entitled as of right to disclose in accordance with FPR 12.75(c) certain of the documents which she wishes to disclose (but accepting that, because of FPR 12.73(3), FPR 12.75 does not permit the disclosure of the Judge's draft judgments and that any disclosure as is permissible in accordance with FPR 12.75(c) would be subject to the restrictions imposed by FPR 12.73(2))

AND the President of the Family Division:

(1) having referred the parties to section 9(3) of the Human Rights Act 1998 and having raised (but not heard full argument in relation to or determined) the question whether SW has any cause of action in relation to the matters proposed to be the subject of the Queen's Bench proceedings;

(2) having raised (but not heard full argument in relation to or determined) the question whether the judgment of the Court of Appeal can be relied upon in the Queen's Bench proceedings having regard to the rule in Hollington v F W Hewthorn & Co [1943] KB 587; and

(3) having indicated that he was not prepared to determine the issue in relation to FPR 12.75(c) in the absence of PO and without having heard adversarial argument

AND the President of the Family Division being satisfied that the disclosure authorised by this order is necessary to enable SW to commence the Queen's Bench proceedings and (being subject to the safeguards set out below) is compatible with the Article 6 and Article 8 rights of PO and of the Children

BUT the President of the Family Division being of the opinion, having regard to inter alia the Article 6 and Article 8 rights of PO and of the Children, that the decision as to any further disclosure should be deferred for the time being

IT IS ORDERED that:

1 Pursuant to paragraph 4 of the order of the Court of Appeal dated 22 May 2017, paragraph 5 of the order of the Court of Appeal dated 17 November 2016 is varied by deleting the words "For the avoidance of doubt, this prohibition extends to the naming of the trial Judge and the Court in which she or he was sitting."

2 Accordingly, SW may identify the Judge in the course of disclosure to the proposed defendants and in any documents filed in the Queen's Bench proceedings.

3 Notwithstanding any rule or practice to the contrary, and provided that SW notifies the court of her full name and address at the time she issues the Queen's Bench proceedings, the claimant in the Queen's Bench proceedings shall be named as "SW" and PO shall be referred to as "PO".

4 Subject to paragraphs 5 and 6 below, permission is granted for SW, or any solicitor and/or barrister instructed by her in connection with the Queen's Bench proceedings, to disclose and/or communicate to the proposed defendants in the Queen's Bench proceedings ("the proposed defendants") any information and/or documents relating to the appeal, B4/2015/1962 ("the appeal"), and the care proceedings, LU12C0341/LU13C03205 ("the care proceedings"), as are considered necessary by her legal advisors in and for the purposes of her pre-action correspondence, claim form and statements of case in respect of the Queen's Bench proceedings.

5(1) SW may not at this stage disclose any document or part of any document which identifies or would lead to the identification of any party to or witness in the care proceedings or the appeal.

5(2) SW may quote verbatim from currently unanonymised documents (including draft judgments) provided that (a) such quotations do not identify any party to or witness in the care proceedings or the appeal and (b) any quotation has been redacted in accordance with the same redaction process that the parties undertook in order to produce the anonymised fact finding judgment of the Judge dated 6 June 2015.

5(3) SW may only disclose a document or documents (including already anonymised judgments) that have already been anonymised and redacted in accordance with the same redaction process that the parties undertook in order to produce the anonymised fact finding judgment of the Judge dated 6 June 2015.

6(1) It is an express condition of the disclosure permitted by this order that SW, the proposed defendants and any other person to whom in accordance with the terms of this order any document or information has been disclosed shall unless otherwise authorised or directed by order of the President of the Family Division at all times comply with the provisions of this paragraph.

6(2) Save with the prior permission of the President of the Family Division:

(a) the proposed defendants shall not disclose any of the documents or information to any person other than for the purpose of obtaining legal advice;

(b) no person to whom any of the documents or information has been disclosed or communicated in accordance with paragraph (a) above shall disclose or communicate the same to any other person;

(c) no part of the documents or information shall be disclosed at any public hearing of the Queen's Bench proceedings or otherwise put in the public domain; and

(d) nothing shall be published that might lead to the identification of any of the persons (other than the Judge) referred to in the documents.

7 Notwithstanding the provisions of CPR 5.4C, and in accordance with CPR 5.4C(4), no person other than a party to the Queen's Bench proceedings shall have access to the court records or to any document in the court records relating to the Queen's Bench proceedings without the prior permission of the President of the Family Division.

8 There be permission to SW, PO, the local authority, the other parties to the appeal and the proposed defendants to apply on short notice by email to the clerk to the President of the Family Division at … for further directions (which may be determined on paper if appropriate).

9 Any application for further disclosure is reserved to be heard by the President of the Family Division (sitting for this purpose either in the Family Court or in the Queen's Bench Division) unless released by the President of the Family Division to another judge of the High Court.

10 A copy of this order shall be sent to the President of the Queen's Bench Division.

11 The costs of and associated with SW's application be reserved to the Judge who comes to make the final costs order in respect of the Queen's Bench proceedings; there be no order for costs against any of the other parties to the appeal.

Dated the 25^th day of July 2017"