England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT BRISTOL

		30/10/2017

HHJ Wildblood QC :

1. Introduction - The principal issue that I have to decide is whether, upon publication of information relating to these proceedings, the Local Authority involved should be named. The issue is narrow and easily stated. The decision that I have to make is anything but straightforward in my opinion and the issues that arise have never been far from my mind for the past three weeks. I am grateful to Baker J for permitting me to resolve them. On 30^th October 2017 I sent out this judgment to all concerned in draft. On 5^th November 2017 it was confirmed to me that the Local Authority does not seek permission to appeal from my decision. The guardian had informed me on 3^rd November 2017 that she did not seek permission to appeal either. I have therefore released this judgment for publication but have kept it in the form sent out in draft. However, I have added a post-script to it for reasons that will be obvious.
2. At a hearing on the 6^th October 2017 I made a special guardianship order in favour of a grandmother in relation to her grandchild. At that hearing she expressed profound dissatisfaction about the way in which she had been assessed and treated by the Local Authority during the currency of the proceedings. The parents each supported the grandmother in what she said. The guardian had filed a report supporting some of the points that the grandmother raised also. The Local Authority did not agree with what the grandmother said.
3. The grandmother, who is a litigant in person, stated that she wished to make her story known to others. I explained to her the availability of the complaints procedure under Section 26(3) of The Children Act 1989 but explored with her whether she was seeking to publish an anonymised account of the statement that she read out in court that day. She told that she was.
4. Therefore, I gave directions and listed a hearing before me to decide whether a version of the grandmother's story might be released to the media on her application. That second hearing took place on 20^th October 2017. It was attended by officers of the accredited press with my permission and in accordance with PD 27B of Family Procedure Rules 2010.
5. Pursuant to my direction on 6^th October 2017, the grandmother, who is an intelligent and courteous woman, served on all those involved a statement setting out the anonymised story that she wished to tell. Also all the other parties save for the Local Authority filed position statements in relation to the grandmother's application in accordance with the direction that I had made. Regrettably, the Local Authority position statement came in only on 20^th October, very shortly before the hearing started.
6. The hearing on 20^th October 2017 was disappointing. Although the Local Authority, guardian and mother all attended with legal representation there was no mention in any of the skeleton arguments or position statements of the legal considerations that arose in relation to the grandmother's application. Specifically, there was no mention at all of Articles 6, 8 or 10 of the European Convention on Human Rights or any of the relevant case law. The Local Authority had produced a statement from the social worker seeking to justify its actions during the proceedings and the written submissions were to the same effect. It was necessary for me to repeat many times that I was not conducting a hearing to decide upon the validity of the grandmother's complaints (how could I do that in two hours without hearing witnesses?). I had to stress repeatedly that I was deciding whether the grandmother should have the right to disclose her statement and a contextual statement within the public domain.
7. The position of the guardian at that hearing was set out in a helpful and short submission; she did not object to the disclosure sought. The grandmother sought leave to disclose her statement. The mother supported the grandmother and the father, who was not present, had expressed support for her application also. The press, from whom I allowed brief submissions, also sought the disclosure of the grandmother's statement. Very helpfully, the guardian had prepared a contextual statement on the basis that, if the court did allow the publication of the grandmother's statement, the contextual statement would provide some other, necessary, explanation of the background in anonymised terms.
8. Initially the Local Authority opposed the disclosure of the grandmother's statement and also of the contextual statement; it sought to argue that only very limited information should be released for publication, if any, and that the grandmother should pursue any complaint that she wished to make by following the internal complaints procedure under Section 26(3) of the 1989 Act. However, when I referred them to the Convention provisions and the dicta of Lord Steyn at paragraph 17 of Re S (A child) (Identification Restrictions on Publication) [2005] 1FLR 591 – all of which can be found in the Red book - it was accepted that there was no justifiable basis for opposing the disclosure of either the grandmother's statement or the contextual statement in the forms that had been produced. On that basis the Local Authority's opposition to the disclosure of those statements was not pursued before me.
9. However, there was very real disagreement as to whether the Local Authority should be identified in any information that was published from the proceedings. There were some other minor issues of detail, which I can deal with very swiftly. Because of the lack of focus within the presented arguments on the legal considerations that applied I decided that it was simply not possible or right for me to give a ruling on the identification of the Local Authority at that hearing. I therefore adjourned that issue, together with the other lesser issues and stated that I would resolve them in a judgment given following the receipt of written submissions from the parties. I invited, also, one composite submission from the press officers that were in attendance. This is now that judgment.
10. The purpose of this judgment is not to revisit the question of whether the grandmother's statement and the contextual statement should be made public. By the end of the hearing on 20^th October no party opposed that and, it is now clarified that, there remains no active opposition to that disclosure. I therefore direct that copies of those statements should be annexed to this judgment.
11. However, I do wish to record that, in its written submission of 25^th October 2017 the Local Authority advanced arguments through different counsel which were plainly directed to revisiting the issue of the publication of those statements. Paragraph 40 of that submission stated specifically that 'the Local Authority suggests that any publication in respect of this case should be limited to... [five stated points]'. That led me to enquire whether the Local Authority had changed its position from that stated on 20^th October 2017. Only after a further written submission was it then clarified in a later email that the Local Authority submissions should not be read 'as opposing disclosure of the [grandmother's] statement, accompanied by the agreed rubric [i.e. the contextual statement]'.
12. Background – There is very little that I wish to say in this judgment about the background to this case. Any detail that I do give could traverse the very issues that I have to decide and would negate the purpose of the contextual statement. However, there are these important features of the case that I do wish to mention:

i) The grandmother is not only an intelligent and courteous woman but she has put herself out considerably to offer her grandchild the opportunity of being cared for within the natural family. No other family member was in a position to offer that to the child. Therefore I pay an immense tribute to her by this judgment.

ii) I see no reason at all why she should not be allowed to state publicly that she is a woman who is accustomed to working with children and has played a significant and successful family role throughout most of her adult life; I do not accept for a minute the suggestion that the disclosure of that information would add anything to the risk of jigsaw identification (see the Local Authority's submission at paragraph 39).

iii) Although I am not making any pretence of a judgment about the merit of the issues that the grandmother raises I have read the whole of the bundle. I note that there were positive and full assessments of the grandmother as a special guardian in the early stages of the proceedings [C72 and C149] but that then, 5 ½ months into the proceedings, a further report was filed by another independent social worker who reached a different conclusion about her. At the same time as the second report was filed, the Local Authority social worker also took an adverse view of the grandmother as a special guardian and suggested that she showed 'uncertain commitment' (I take those words directly from the submission of the Local Authority counsel at paragraph 5). That change of position was then referred to the agency decision maker ('the ADM') with a view to the Local Authority's care plan being one for adoption. By then, the guardian had been informed that the social work team was promoting adoption for the child [see paragraph 15 of the guardian's final analysis of 4^th October 2017]. Fortunately the ADM did not 'feel able to make a recommendation for adoption [of the child]' – C183. The guardian in her final report did not accept the adverse analysis of the grandmother and was critical of the delay that it had caused [see paragraph 33 of her analysis]. I mention these points not to express a view on them but because they at least demonstrate that the grandmother may have cause to complain about the process of assessment. On a reading of the papers alone it can be said that they do not read as frivolous or groundless.

iv) As the contextual statement itself states, the child is still a baby.

v) The proceedings took just over seven months to resolve.

vi) I think it worthy of note that the grandmother faced these proceedings without legal representation. I do not express a view as to whether it was right or wrong that she did so.

13. The position of the parties on identification of the Local Authority – The Local Authority opposes identification. The guardian does also. The mother, who has been very skilfully represented by a solicitor who has put a lot of work and research into this case, argues that the Local Authority should be identified. The officers of the press, who have prepared a very impressive joint submission (albeit that they refer to the Court of Appeal decision in Re S and not the House of Lords decision in that case which dismisses the appeal but departs from the reasoning of the Court of Appeal) also argue in favour of disclosure of the identity of the Local Authority.
14. The father's solicitor has filed a very brief submission suggesting that the father would be opposed to the identification of the Local Authority due to the fear of jigsaw identification; however that appears to be the assumption of the father's solicitor because the solicitor says that the father 'has no particular view on naming the Local Authority. I think it must follow however that he would not support the naming of the Local Authority on the basis that this must increase the chances of parties being identified.' That led to the grandmother herself speaking to the father and stating in her submission: 'I undertook to telephone him to ask his views... Although he did not want to be identified, he said clearly he had no view on whether the local authority was identified or not'. I accept what the grandmother says about that.
15. Having read the submissions of the parties I invited further submissions as to whether the issue of disclosure might be dealt with in stages. That is, disclose the agreed material first and then, after a period, decide in the context of that existing publication, whether there should be further disclosure including that of the identity of the Local Authority once the response to the initial disclosure was apparent.
16. The grandmother's initial position was to favour that staged approach to disclosure although she has consistently stated that, ultimately the Local Authority should be named. In her responses she has expressed her continuing sense of grievance at the way she was treated during the proceedings and also her sense of grievance at how the Local Authority has presented its case on and since 20^th October 2017. Finally, at 21.40 p.m. on the day before I wrote this judgment the grandmother sent me and the advocates an email in response to further submissions from the Local Authority. In it she stated: 'When I replied last to that question I felt that a staged approach might be best. Having looked at matters further, in the round as it were, I am unable to see that it has a great advantage in this situation. As I have no legal knowledge, it may be that I am unaware of how it could play out in a staged manner. But, from my standpoint, I now do not favour a staged approach'.
17. The mother's solicitor questioned the point of a staged approach. The father and guardian remained of the same view as before – i.e. opposed to disclosure now or later. The Local Authority gave a very confused but strongly worded response to the suggestion of a staged approach in paragraph 15 of a further submission but said that 'the view of the Local Authority is that the issues in this case need to be concluded without further delay'.
18. What this judgment is not – Although I realise it may seem somewhat odd to include a paragraph under that heading I consider that it is necessary to do so. Therefore this judgment is not:

i) A determination by me of the merit of the grandmother's complaints. The Local Authority, in its submissions, stresses that point whilst, at the same time, having made submissions and filed evidence to suggest that the complaints are not valid (see the submission and the social worker's statement that were filed for 20^th October 2017). I also note that, in the case of re B [2004] EWHC 411 (Fam) the now President, Sir James Munby was in a not dissimilar position (see para 49 of the judgment). As I stressed on 20^th October 2017, the issue is not whether the grandmother's complaints are correct for I am not in a position to decide that. The question is whether the grandmother should have the right to tell her story and now, whether as part of the telling of it, the Local Authority should be named.

ii) A means of stimulating public debate. My job as a Circuit Judge is to apply the law to the facts that are relevant to the issue before me. I have read the whole of the judgment in very recent case of Re B [2017] EWCA Civ 1579 and note, in particular, what is said in paragraph 27.

iii) An attempt by me at setting any sort of precedent or guidance even on a local scale. Not only would general guidance be way beyond my station or pay-grade. It would also be presumptuous and wrong. There is no new point of law or principle that arises in this case and my decision is entirely case specific. The decision that I have to make requires a very careful judgment call. As the President himself said in A v Ward [2010] EWHC 16 (Fam): 'The present dispute is only part of an on-going debate as to where in the family justice system the lines should be drawn, where the balance should be struck, as between the often starkly opposed arguments, on the one side in favour of preserving the traditional privacy and confidentiality of family proceedings and on the other side in favour of greater 'transparency', to use the vogue expression. My duty here is to determine the present case according to law – that is, the law as it is, not the law as some might wish it to be'.

iv) An attempt by me to push or contain the boundaries of transparency. Not only do I have no interest in doing that but it is not for me to do.

19. The law that applies - As the Local Authority submission suggests, the answer to the issues before me do not lie in statute. Although there are statutory restrictions on the publication of information from family proceedings heard in private (e.g. in section 12 of the Administration of Justice Act 1960 and section 97 of The Children Act 1989) those restrictions are, in any event, subject to any specific leave given by the court in a particular case. The same applies to the resultant restrictions that arise under Chapter 7 of Part 12 of Family Procedure Rules 2010 and PD 12G of those rules.
20. Where proceedings have come to an end Section 97 (2) of the 1989 Act does not operate and Section 12 of the 1960 Act does not operate to prevent disclosure of the names of parties to proceedings held in private. In the case of Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142 (which I cite below) there is an analysis of just this very point but I do wish to cite paragraph 24 of the decision of the President, as he now is, in A v Ward [2010] EWHC 16 (Fam) immediately:

'It is convenient to start with what I said in British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam), [2007] 2 FLR 765, at para [12]: "It was – correctly – common ground between counsel that: (i)  The care proceedings in relation to William having come to an end, the restrictions imposed by s 97(2) of the Children Act 1989 no longer operate: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2007] 1 FLR 11. (ii) The only relevant statutory restrictions are those imposed by s 12 of the Administration of Justice Act 1960. (iii) Section 12, although it … imposes restrictions upon discussion of the facts and evidence in the case, does not prevent publication of the names of the parties, the child or the witnesses: Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. (iv) Accordingly, unless I agree to exercise the 'disclosure jurisdiction' (see Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142, at [84]) [nothing] … (to the extent that it contains … material the disclosure of which would otherwise constitute a breach of s 12 of the Administration of Justice Act 1960) can be published, and unless I decide to exercise the 'restraint jurisdiction' there will be nothing to prevent the public identification of the social workers, the police officer, the treating doctors and the expert witnesses." [25]. No-one dissents from what I went on to say (at para [13]) namely that: "both the disclosure jurisdiction and the restraint jurisdiction have to be exercised in accordance with the principles explained by Lord Steyn in In Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, sub nom Re S (Identification: Restrictions on Publication) [2005] 1 FLR 591, at [17], and by Sir Mark Potter P in A Local Authority v W, L, W, T and R (by the Children's Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, at para [53], that is, by a 'parallel analysis' of those of the various rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention), which are engaged, leading to an 'ultimate balancing test' reflecting the Convention principle of proportionality'.

21. I cite that passage (and more, later, from Re B) because the Local Authority's submission appears to me to be advanced on a fundamental misunderstanding of the law as it applies to the naming of the Local Authority. The Local Authority submitted, on that and the other issues, that 'these proceedings were brought under The Children Act 1989 and were heard in private. Publication of information relating to the proceedings, unless specifically authorised by a court, is a contempt of court'. The whole of the submission that was written by the Local Authority appears to be based on that erroneous contention and, further, makes no mention of the point that arises from the above passage from A v Ward and the passages that I cite below from Re B and other cases. As was the case in Re B, the boot has been put on the wrong foot by the Local Authority.
22. Here the parties raise the specific issue as to whether the court should allow a specific disclosure – the name of the Local Authority – and so that issue has to be determined by applying the specific legal considerations that arise in relation to that specific issue.
23. It is accepted by all that this case involves, primarily, a balance between the Article 8 ECHR rights of those involved, with the rights of freedom of expression in Article 10 of that Convention. As the President stated in A v Ward at para 118 Article 6 is also engaged, plainly. I have read those articles thoroughly several times whilst reflecting on this case and will not set them out in full in this judgment. I have also studied hard the opinion of Lord Steyn in the case of Re S. That case arose from criminal proceedings but also deals with matters of principle that are of direct importance to this case.
24. Since the issue involves a balance between Convention rights, the welfare of the child, although plainly an important issue, is not the paramount consideration (see e.g. Re S at para 37). I also think that it is important to recollect that Article 10 is not just about the freedom of the press. It is about the freedom of expression and the word 'expression' must include the right, subject to the qualifications in Article 10(2) and also to Articles 6 and 8, to voice complaint. The qualification of the Article 10(1) right is stated in Article 10(2) in these terms: 'the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such…restrictions…as are prescribed by law and are necessary in a democratic society…for the protection of the…rights of others [and] for preventing the disclosure of information received in confidence…'
25. I do want to set out paragraph 17 of the opinion of Lord Steyn where he said this: 'The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test'.
26. Although the above passage is focal I think that the whole of the opinion in Re S is essential reading for this case and I have done that reading. I have given very particular thought to the five points that Lord Steyn makes in paragraphs 31 to 36 of his opinion. Since this case has been attended by accredited members of the local press I want to make specific reference to the fifth point that Lord Steyn raises where he says in relation to Article 10, albeit in the context of a criminal trial (and I recognise, of course, that criminal proceedings raise different issues to family proceedings): 'it is easy to fall into the trap of considering the position from the point of view of national newspapers only. Local newspapers play a huge role. In the United Kingdom according to the website of The Newspaper Society there are 1301 regional and local newspapers which serve villages, towns and cities. Apparently, again according to the website of The Newspaper Society, over 85% of all British adults read a regional or local newspaper compared to 70% who read a national newspaper. Very often a sensational or serious criminal trial will be of great interest in the community where it took place. A regional or local newspaper is likely to give prominence to it. That happens every day up and down the country. For local newspapers, who do not have the financial resources of national newspapers, the spectre of being involved in costly legal proceedings is bound to have a chilling effect'.
27. I have found very particular help as well in the decision of our now President in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2FLR 142. That case is cited at length in the submissions of the press officers that attended the hearing.
28. At para [125] of Re B Sir James Munby said: 'I do not agree with Mr Howard, however, that the identity of the local authority needs to be protected. He says that there is no public interest in naming the local authority. That may or may not be so, but it is, I think, largely beside the point. It is for the local authority to establish a convincing case for an injunction to restrain the media publishing something which is prohibited neither by the general law nor by s 12 [of the Administration of Justice Act 1960]. It cannot establish such a case merely by demonstrating – even assuming it can – that there is no public interest in the identity of the local authority, for that is to put the boot on the wrong foot. His real case is that the local authority's identity needs to be protected in order to ensure that B's identity is protected. That argument, if it could be justified on the facts, might well weigh heavily in the balance. But, in my judgment, Mr Howard fails to make good the factual premise. I do not accept his argument that identification of the local authority is likely to lead to the identification of either B or her carers. I do not accept his argument that a combination of the disclosure sought and "tittle-tattle" will serve to identify B."
29. I also find it very helpful that the officers of the press have made the following submission: 'The case of B: X Council v B is also relevant - see http://www.familylawweek.co.uk/site.aspx?i=ed866 In that case [at para 14 onwards] Mr Justice Munby said as follows:

14 "There will, of course, be cases where a local authority is not identified, even where it has been the subject of stringent judicial criticism. A recent example is Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. But current practice shows that local authorities involved in care cases are increasingly being identified. In addition to the two cases I have already referred to, other recent examples can be found in British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, Oldham MBC v GW, PW and KPW (A Child) [2007] EWHC 136 (Fam) and Re Ward, British Broadcasting Corporation v Cafcass Legal and others [2007] EWHC 616 (Fam). No doubt there are others.

15. I propose to adopt the same approach here as that which I set out in Re B. Is there some proper basis for continuing the local authority's anonymity? In my judgment there is not.

16. In the first place, as the local authority very frankly accepts, whatever anonymity it enjoys is somewhat precarious, given the fact that the solicitors in the case have all been publicly identified. More importantly, however, I cannot see that there is any need to preserve the local authority's anonymity in order to protect the children's privacy and identities. Disclosure of the name of the local authority is not of itself going to lead to the identification of the children. In this respect the case is no different from Re B and Re X.
17. The real reason why the local authority seeks to perpetuate its anonymity is more to do with the interests of the local authority itself (and, no doubt, the important interests of its employees) than with the interests of the children. That is not a criticism of the local authority's stance. It is simply a statement of the realities.

18. I can understand the local authority's concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [166].


19. Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at page 126, freedom of expression is instrumentally important inasmuch as it "facilitates the exposure of errors in the governance and administration of justice of the country." How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X, Barnet LBC v Y and X [2006] 2 FLR 998 at para [174].

20. In my judgment the balance here comes down clearly in favour of the local authority being identified."

30. Further, they submit as follows: 'As recognised in section 20 of the President's Practice Guidance of January 2014 – Publication of Judgments, where a judge gives permission for a judgment to be published the public authority should be named in the judgment unless there are compelling reasons why they should not be so named. We would therefore wish to make the point that in published family judgments, it is highly unusual for a council not to be named'.
31. Finally, there are many other points of assistance from the decision of A v Ward [ibid] but I would wish to make mention of the following:

i) Professionals who give evidence, including social workers, cannot assume that they will do so under a cloak of confidentiality. There are very obvious reasons why that is so. Balcombe LJ said in Re Manda [1993] Fam 183 at p195: "if social workers and others in a like position believe that the evidence they give in child proceedings will in all circumstances remain confidential, then the sooner they are disabused of that belief, the better."

ii) Proceedings where there are suggestions that a child might be adopted (as there were here) raise issues of exceptional gravity which are of great public interest and concern. 'It must never be forgotten that, with the state's abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever' – see Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, at para [150].

iii) In Para 133 of the judgment, the President said this: 'the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called 'secret justice' is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Article 6 and Article 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise. And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at page 77: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."  I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.

32. Main arguments advanced against naming the Local Authority – The principal arguments that have been advanced are these:

i) Naming the Local Authority will increase the risk of the family being identified. The guardian, without analysing the point at all in any of the submissions, relies on this point. The Local Authority relies on it heavily. On behalf of the guardian it is submitted: 'The Guardian's view on balance is that disclosure of the identity of the local authority in this case will increase the risk of so called "jigsaw identification" of the child and its family'. She does not evaluate the risk. Nor does the Local Authority.

ii) The grandmother has a right of complaint under section 26(3) of the 1989 Act. The guardian submits: 'The Guardian questions the motivation and proportionality of naming the local authority in this case. The grandmother of course has an avenue to complain about specific issues through the complaints procedure under S.26 of the Children Act 1989. She feels that the issue of assessment of Special Guardian's is an issue of national public interest and that there is a need to open up the dialogue regarding assessment of kinship carers generally in respect of transparency, support and preparation through the assessment process. It is not an issue confined to this local authority'.

iii) On the facts of the case, one of the family members involved, it is said, is unlikely to be able to understand the need for confidentiality and would be likely to respond indiscreetly to press enquiry.

iv) A refusal to allow the Local Authority to be named is a 'minor interference with Article 10 rights and is consistent with existing legislation'.

v) Disclosure of the identity of the Local Authority would lead to the Local Authority having to issue a response and that, in turn, would lead to 'an unseemly and unhelpful trial by media' and an 'increased risk of jigsaw identification of the child'.

vi) Adverse publicity when no findings have been made against the Local Authority 'would run the risk of making retention and recruitment of social workers more difficult and, therefore, of damaging the service provided for children in the area'. Although I was not referred to it, I do bear in mind what is said by McFarlane LJ in Re W [2016] EWCA Civ 1140 at paragraph 88 and onwards.

vii) The points of principle of public importance are those that the grandmother wishes to raise in relation to how family members are treated when they seek to care for family children in care proceedings. The naming of the Local Authority is not necessary for those issues to be aired.

33. Main arguments in favour of disclosure of the name of the Local Authority - The main arguments advanced are:

i) Those that arise from the authorities that I set out above. I will not repeat them. Within the submissions of the press was this: 'The clear starting point is that a public body can have no expectation of anonymity in any reports that are permitted unless there is some justification for departure from the default position – it is for the Local Authority to make out a case, not for a journalist to establish a positive public interest in identifying the LA. Local Authorities are routinely identified in judgments'.

ii) The arguments about the suggested risk of jigsaw identification are advanced without analysis of fact or research. The reality is that, in the immediate locality of the grandmother, it will be easy for those who know the family to identify it even on the basis of the anonymised statement; the identification of the Local Authority will add nothing to that. The further reality is that, amongst the grandmother's close friends and family, her story will already be apparent. For others, living in other areas of the Local Authority (e.g. the north of the Local Authority area) the naming of the Local Authority will not help at all in identifying the family. On a national level, naming the Local Authority area will be a matter of no significance at all to people from other areas (e.g. Birmingham or Newcastle-on-Tyne) and could not be taken as identifying the family. Given the demography, geography and population of the Local Authority identification is unlikely to take place beyond those who are likely already to know the family's identity. I note this submission of the Press officers (which shows the extent of their researches in my opinion): 'The fact the infant will be in the care of its grandmother is also not significant enough to identify this family. Such an arrangement is neither unusual, nor unexpected in this country. The 2011 census puts the number of children in England being cared for by a family member at 153,000, and of those, around 76,000 are being looked after by a grandparent (https://www.grandparentsplus.org.uk/kinship-care-state-of-the-nation-2016). In 2017, it was reported in Community Care magazine that since 2010 there had been a 220% rise in special guardianship orders (http://www.communitycare.co.uk/2017/04/27/special-guardianship-orders-used-safely/). It is, we suggest, safe to assume that a good proportion of those being appointed as special guardians are grandparents'.

iii) The difficulty that the member of the family may have in dealing with the issues discreetly will arise whether the Local Authority is named or not. Naming the Local Authority does not increase or decrease the risk that the family member will be identified within the local community.

iv) It is utterly wrong in fact and principle to say that the non-disclosure order sought is only a minor interference with the grandmother's Article 10 rights. The Local Authority's approach seems to be based on its misunderstanding of the principles of law (i.e., in Re B language, on which foot the boot is) and also its failure to consider any of the relevant decisions of the President that I have set out above. To say to this grandmother that she was not allowed to name the Local Authority involved would be a very major interference with her right to expression under the Convention.

v) Insofar as there is a risk of identification, that risk is outbalanced by the importance of the freedom of expression enshrined by Article 10 (1). Further, the grandmother (who will be caring for the child and is an intelligent woman) and the mother both support that identification. I consider that their submissions about the Article 8 rights of their own family carry significant weight.

vi) There is a real and genuine interest within the local community in knowing how its Local Authority is acting. That is part of the democratic process. Members of a local community, like this grandmother, should be able to raise their complaints and concerns about local institutions.

vii) It would be quite wrong to try to limit the grandmother to the use of the procedure under Section 26(3) of the 1989 Act or any other complaints procedure. It is for the Local Authority to justify non-disclosure of its name and it is not for the Local Authority to dictate the means by which the grandmother exercises her Article 10 rights. By way of example – could it really be said in the Crown Court that someone who wished to complain about the treatment she had received in a prosecution must exhaust the police complaints procedure first?

viii) The suggestion that naming the Local Authority will result in a trial by media is riddled with errors of principle and fact. First, the press are the eyes and ears of society and press reporting cannot be swept aside on the basis of trial by media. Second, the emotive term 'trial by media' is not apposite - the issue is whether a member of the public should be able to voice a complaint against a local and public institution. Third, the extent to which there is a dispute within the public domain will depend on how the Local Authority chooses to conduct any response within the ambit of the law. Fourth, even without naming the Local Authority, it is highly foreseeable that some form of response will be made by the Local Authority and any response that is given should not be conducted by it behind a veil of anonymity.

ix) The court must not be seen to act as a shield for other public institutions.

x) There is no attempt by anyone involved in this case to identify specific social workers in the material that is made public. Naming the Local Authority does not mean that it becomes necessary to name the individual social worker and I have had no requests or suggestions that this should occur.

xi) The issues of importance are not confined to those relating to the treatment of family members in care proceedings. The issues that arise will be of most interest to those who live in the locality of this Local Authority and relate to how the authority is performing. Local issues matter (see the passage in from Re S above).

34. Staged disclosure - Initially I thought that it would be wise to stage the issues by i) allowing the grandmother's statement and the contextual statement to be disclosed and then ii) deciding, at a later stage and in the light of events as they were known then, whether to order disclosure of the Local Authority's identity. I am persuaded by the combined submissions of all the parties, including the Local Authority and the guardian but especially those of the mother's solicitor, that this would serve no purpose. I have to grasp the nettle now and delaying the decision will not change matters.
35. The mother's solicitor, in her typically considered and polite submission, put it in this correct way: 'I am unclear about what this is aiming to achieve. This may well just be my reading of Your Honour's suggestion and if it is that I can only apologise. As Your Honour notes in his email, one of the biggest risks of the internet is that once the information is released it can never be retrieved. Many people may come across this story months or years after it is first published and so the delay would make no real difference to their ability to try to identify the family from the story. For those that come across it in the first month, this very specific and limited update a month later could conceivably pique their interest in finding out more about who the family are because it would single out and highlight a specific fact about where they live. If the aim was to see whether the family were identified within the first month and then review the question before releasing the Local Authority's name, I wonder how this question could be investigated. Asking the family or Local Authority may go some way, but it will not necessarily answer the question because people may have identified them without speaking to them directly about it. A study or survey of the wider public would be outside of the court and parties normal functions and abilities. It may also risk piquing public interest in the question of specifically who they are, which would be contrary to the aim of keeping their identity private. Finally, neither method would answer the question of whether adding in this further piece of the "jigsaw" will lead to identification after its release'.
36. Opinion on naming the Local Authority – In my opinion the arguments in favour of naming the Local Authority are overwhelming. I do not think that the Local Authority has got anywhere near justifying the non-disclosure of its identity. I accept each of the arguments advanced in support of that disclosure in the terms that I have set out above and consider that the authorities that I have cited point very strongly to it being ordered. I depart from the views of the guardian and of the Local Authority for the reasons stated within the accepted arguments that I have set out above in favour of disclosure. I do not think that the Local Authority or the guardian has given the issues or principles covered by this judgment sufficient or correct analysis.
37. Other issues – I have dealt with the lesser issues stated in paragraph two of the order of 20^th October 2017 within the body of this judgment. I do not think there is any public interest in referring in any more detail to the events in court on 20^th October 2017 beyond the detail that I have already given.
38. Conclusion – I reject the submission of the Local Authority and of the guardian that the Local Authority should not be named. I direct that the Local Authority may be named in any published version of this judgment and will add its name to this judgment when and if it is placed on Bailii at the end of any appellate procedures. At this stage I have drafted this judgment, however, in a way that does not state the name of the Local Authority so that, if necessary, it can be cited without giving that information.
39. The Local Authority has indicated that, if I do allow it to be named, it would wish to consider making an application for permission to appeal and therefore invites me to order a stay for the period of seven days (i.e. until 4 p.m. on Monday 6^th November 2017).
40. I do so order and therefore the Local Authority must not be named and no details of this case must be made public until either:

i) I issue a short further order following communication, if any, by the Local Authority and guardian within that period that no applications for permission to appeal are to be made;

ii) The conclusion of any appellate procedures.

41. To that end the Local Authority must:

i) Keep the court, the other parties and the officers of the press informed about the progress of any appeal by any party (including whether any appellants' notices have been issued).

ii) Draw up an order to reflect the contents of this judgment (since the Local Authority will need that if it is to consider an appeal). That order would have to include the stay and the terms of it. It must also provide that the terms of this judgment must not be made public unless and until the stay is removed or any appellate procedure has been decided (whichever be the later).

42. In order to accelerate any appeal process I make it clear that I would intend to refuse any applications for permission to appeal.
43. A copy of this judgment must be released to each of the parties and also to the officers of the press who attended the hearing. However, that is to be done on the clear understanding that paragraph 40 of this judgment must be observed. Any corrections or agreed amendments to this judgment is to be submitted to me by 4 p.m. on 1^st November 2017 in one composite document using track change and is to be collated by the Local Authority.

HHJ Stephen Wildblood QC

30^th October 2017

44. Postscript – As stated at the outset of this judgment, the above represents the judgment as sent out on 30^th October 2017. Now that I have been informed that permission to appeal will not be sought, I annexe to this judgment the order that accompanies in which the Local Authority is named as Gloucestershire County Council. Also annexed to the judgment are: i) the grandmother's statement and ii) the contextual statement.
45. The order must be observed in its totality, as must the reporting restrictions stated within this judgment (especially within the rubric – i.e. the words printed at the very head of the judgment). I wish to record that, as stated in the order, that this judgment and the annexes to it are released upon the basis that save as stated in the judgment and in the order itself, all restrictions upon reporting of these proceedings as laid down by law remain in full force, unless hereinafter otherwise ordered.

SW.

6^th November 2017

In the Family Court at BRISTOL

Case Number: BS 17 C 00343

Between:

	A Local Authority	Applicant
	- and -
	A mother, a father, a grandmother and a child	Respondents

RE ABC (A child)
ORDER OF 6^th November 2017

Before His Honour Judge Wildblood QC sitting in the Family Court at Bristol on 6^th November 2017.

Upon reading the written submissions of all parties and submissions filed at the request of this court by the members of the accredited press who had been present at the hearing of this matter on 20^th October 2017.

And upon:

i) the court having today, 6^th November 2017, handed down its judgment in final written form, that judgment having been released in draft to all parties and to the members of the accredited press referred to above on 30^th October 2017.

ii) the judge having stated within the draft judgment that, in the absence of any intended application for permission to appeal, he will place the judgment accompanying this order, together with the annexes referred to therein, on the Bailii website in accordance with the President's Practice Guidance of January 2014 – Publication of Judgments.

iii) the basis that, save as stated in the judgment accompanying this order and in this order itself, all restrictions upon reporting of these proceedings as laid down by law shall remain in full force unless hereinafter otherwise ordered.

iv) the Local Authority and the guardian having confirmed that they do not intend to seek permission to appeal from this order having considered the judgment released in draft on 30^th October 2017.

v) the stay, ordered within the judgment of 30^th October 2017, being now removed with effect from noon on 6^th November 2017.

It is ordered as follows:

1. Copies of the grandmother's anonymised statement filed pursuant to the court's order of 6^th October 2017 and of the contextual statement agreed at the hearing on 20^th October 2017 shall be annexed to the judgment which was released on 30^th October 2017 and which is finalised today.

2. This order must also be annexed to the above judgment.

3. The local authority, Gloucestershire County Council, shall be named in any published version of that judgment.

4. For the avoidance of doubt, the grandmother may state publicly (and it may therefore be reported) that she is a woman who is accustomed to working with children and has played a significant and successful family role throughout most of her adult life.

5. Further for the avoidance of doubt, permission is not given for publication of matters aired in court on 20^th October 2016 save as allowed for in this order.

6. There shall be no order for costs.

His Honour Judge Wildblood QC

6^th November 2017.

Contextual statement as drafted by the parties

This statement is written by a capable and educated grandmother who has successfully raised her own family as a single parent and recently put herself forward to be assessed as a Special Guardian for her infant grandchild. The circumstances were such that it was not going to be possible for the parents to care for the baby and the alternative would have been an adoptive placement.

It can be seen that she felt unsupported through the assessment and that it was a difficult and protracted process. While rigorous assessment is of course important in the process of considering family members as prospective special guardians, what this grandmother writes raises important questions about whether there needs to be a re-evaluation by local authorities nationally of how family members putting themselves forward in these situations can be better prepared, informed and supported through the process.

The grandmother's statement

These are the facts that I would like to disclose to the press, concerning my experiences during the assessments for a Special Guardianship Application and the events that have followed.

This has been an extraordinary experience to me, even though in the course of my life I have previously had to face some remarkably difficult challenges .It is important to me that some good should come from what has happened in this case, to this baby, her parents and to me.

It has seemed that the local authority is unused to being questioned or called to account for their conduct, decisions or even their misinformation. Emails are frequently not acknowledged, questions not answered most of the time. When false information or advice is given it leads to a great deal of anxiety and sometimes extra costs. This has happened throughout this process. Yet no one takes responsibility for their actions. It struck me that social workers are unused to the clients they work with demanding to be treated with respect, honesty and efficiency. There is a reliance on procedure without examining the particulars of a situation.

The reasoning which led to the local authority initial decision to contradict their very positive first report about me was a very narrow interpretation of my character and behaviour. It seemed there was only one way to show commitment and as I had expressed it a different way I was not committed. It was put to me that I had failed because I had not wanted to take the baby straight home from hospital. That I ought to be expressing that I wanted her. I reason that this is a vast decision for anyone to make, and that to respond purely emotionally or instinctively would be a less appropriate way to decide. I have been very open about my deliberations and judged negatively for that. Instead of helping to explore and understand, pejorative notes were taken and not discussed with me to further understand. I was even required to sort out all the typo errors in the first report which is most unprofessional.

I have responded robustly to the addendum report. I would add, however, that I was shocked by the references to identity and attachment, which do not bear examination. Indeed, I felt obliged to explain the meaning of a smile in small babies to the independent social worker such was the degree of her misunderstanding of this. As a final flourish, it was put to me by her that I ought to express commitment in the absence of clear health understanding or a financial assessment, which I felt was an outrageous transfer of responsibility from the local authority to me for their failings.

A complex issue which I feel has been inappropriately dealt with is the baby's health. Both her parents have health difficulties which may complicate her future health. They may also have a huge impact on my capacity to cope in the future. The local authority followed their set routines in this area and failed completely to respond to my concerns that I needed to have as much knowledge as possible. This desire to have information was to guide my decision but also to ensure the best care now for this vulnerable child. Early investigations would have led to greater understanding. For example, a simple blood test could have been informative on one aspect of this. I fail to believe that this is not possible in complex cases.

A financial assessment is an integral part of this process. I have been given numerous accounts of how this works, how no finance would be offered, that I was ineligible even for assessment. I had to use voluntary agencies and research on line for the facts. The first social worker simply failed to turn up for an appointment to assess me. The baby's social worker took a few notes and didn't tell me the outcome though indirectly I was informed I was ineligible as I have some savings, which is completely incorrect. Ultimately, after explaining the process to the uncommunicative unit responsible, I have been offered some support. Following further unacknowledged emails to add information to my case, which explained my understanding of the assessment guidelines, further support has been offered. Is this an acceptable way for this to be conducted? It has led me to have to delay giving notice to my employer until I had discussed the outcome with a solicitor, leaving the baby in care for weeks longer.

There have been unexplained delays, which cannot be helpful for a baby awaiting a permanent placement. Weeks would pass without explanation, or even communication. Was this a suitable case for a newly qualified social worker who would move on, to be followed, by a part time person who would be away on leave without informing those concerned?

I have wondered how this would have ended if I had been a less vocal, expressive or determined person. I am under no doubt that this baby may have been adopted, that others may be, because many people who find themselves in this position do not have the personal resources to cope effectively. It has left me utterly exhausted and feeling shattered by the lack of kindness and understanding I experienced in such a painful context. To add insult to injury, I am accused of being problematically subject to stress by the social worker for the baby in her final statement.

I need to put this process behind me. I will, but I would hope that by airing these facts that those concerned might improve their practice. The central cog in this process needs to be well informed, efficient and dare I say kind, in such a sensitive situation. Their actions have cost me around £700 in legal fees which ought not to have been needed. I could have left this court with no financial support if I had not undertaken to investigate independently and share my knowledge with the local authority, to press for adherence to the D of E guidelines.

Ultimately, and above all, this baby has remained far longer than was justifiable, in foster care. Her parents have experienced a protracted agony of uncertainty. And, we go forward without full medical understanding. I would like to pay tribute to the exemplary care of the foster mother who has loved and cared for this baby and to the Guardian for her faith in my integrity.

The Order of Special Guardianship has now been made. I will love and care for this baby in every way. She will enjoy contact with her parents and develop a positive sense of Identity, drawing on the love of her family and our wonderful friends.