England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BRISTOL DISTRICT REGISTRY
IN THE MATTER OF CHILD, 1, CHILD 2 AND CHILD 3
AND IN THE MATTER OF THE CHILDREN ACT 1989

		28th April 2009

See also: [2008] EWHC B10 (Fam)

1. JUDGE BARCLAY: This judgment centres on the issue of whether my earlier judgment handed down on 22^nd December of last year can be any further published. The judgment of 22^nd December was at the conclusion of the long-running final hearing in care proceedings which began in my court, I think, on 12^th June 2008 and concluded with that judgment some six months or so later.
2. It has been provided to me in an anonymised form today. I am sorry I did not receive it before. Apparently I was thought to have already approved it in this anonymised form, but I have now had a chance to look at it. I am very grateful to Miss Perry who has provided the anonymity, and I am quite satisfied that it is correctly so anonymised. The judgment is also slightly shorter than the original and full judgment because paragraphs 131 to 187 are excised. That was because in the order made on 22^nd December I allowed some limited publication of the judgment. First, under paragraph 8 of the order, and subject to later paragraphs, there was permission for the local authority, Bath and North East Somerset, and CAFCASS through the guardian, to disclose paragraphs 1 to 130, and 188 to 189 of the transcript to any party in any other ongoing proceedings under the Children Act in which the first intervener, who is Mrs. Lynda Barnes, has played any significant role, provided the extract shall be anonymised by Miss Perry so as to prevent the identification of any person referred to therein save for the local authority and the first intervener, Mrs. Barnes.
3. The further disclosure that has already been ordered was set out in paragraph 9 of the order of 22^nd December which provided that the full and un-anonymised transcript was to be made available to the managers employed by the applicant, and any individual bodies appointed by the applicant to enquire as to the conduct of this case. Miss Crocker for South Gloucestershire Council has in fact just completed a review of the local authority's practices and has provided a summary and a full report just in the last day or so, I think, and it has not as yet been able to be fully absorbed by the local authority. It was a review they set up, I should say for the avoidance of any doubt, and Miss Crocker has provided her conclusions. I have no doubt she saw my judgment.
4. The next paragraph of the order of 22^nd December, paragraph 10, was to provide the full transcript as anonymised to the General Social Care Council in order for it to review its procedure for checking the circumstances of a serious criminal offence committed by any applicant for registration as a social worker, because I concluded that in the circumstances Mrs. Barnes' criminal conviction may not have been subjected by that Council to sufficiently rigorous scrutiny.
5. So there has been some disclosure already within the confines of that order and subject to the later paragraphs 11, 12 and 13 which I am not going to read out, of which everybody in court is aware.
6. All the respondents in this case seek further disclosure of this judgment. The mother suggests through Mr. Baker QC and Miss O'Neill that it should be a summary of my findings rather than the full or reduced judgment, even anonymised. The children's two fathers and their two grandmothers, and indeed the grandfather Father A's father, contend for the full transcript to be publicised.
7. The names of the local authority team manager, Mrs. Barnes, and indeed the social worker, referred to in the anonymised transcript as Social Worker C, are already in the public domain to an extent, following the decision of the Court of Appeal of 17^th February, I think it was, of this year, rejecting an application by Mrs. Barnes for permission to appeal my findings.
8. The local authority, Bath and North East Somerset's first position and fundamental position is to resist any disclosure. Mr. Bellamy QC with Miss Rowsell on their behalf submits that they object to any further disclosure of the judgment, and they set out their reasons for so contending. Their fall-back position is if there is any further publicity of the judgment then it must be in an agreed and approved form, either by way of summary, enlarged from the one that Mr. Baker has provided on behalf of the mother, it is suggested, or the fuller judgment with the agreed additions.
9. The guardian suggests some limited further disclosure to the local authority managers and the General Social Care Council, but no further, and the local authority would contend, I think, that they have already satisfied part of that remit as suggested by the guardian by providing the material from Miss Crocker following the review which they set up. But Mr. Roberts, on behalf of the guardian, submits that this is a finely balanced decision and that there are competing arguments both ways. Mr. Bellamy, on behalf of the local authority, concedes that there are arguments for publicity and essentially ultimately, I think, left the matter to my discretion as to whether this was a case where further publicity should be ordered in the interests of justice, having regard to all the competing arguments and claims.
10. I have received detailed submissions on the law from all sides, and I am very grateful for those. Time does not permit me to rehearse them all at this stage. They are detailed in writing and they were added to orally today. Can I say that I have in mind all those submissions, and I will give them such due weight as seems to me to be correct?
11. Ultimately, it is a question of balancing the competing rights of the parties, including the children, and determining what is the proportionate response in relation to this suggested publicity. Mrs. Barnes, I should have said already and I say now, is not represented here today. She was an intervener in the proceedings, as we know. She is not able to obtain legal representation. She is far from well, and I am sorry for that, but she resists disclosure of any sort and she sent a very poignant letter to the court setting out the reasons why any further publicity would harm her and her family. She has, of course, Article 8 rights for a private family life. Those Article 8 rights apply to the children in this case and all the adults involved with them also. There are potentially competing rights by way of Article 10, the right of free expression, which are plainly engaged. All the family, in fact, want some form of publication. Mr. Sharp QC on behalf of the second father, Father B, suggested that in those circumstances it was almost inevitable that there should be some disclosure. He put it that it was very difficult for the local authority to seek to advance arguments to the contrary where so many of the family wished for the right freely to express this judgment, and to see it published in the way suggested by them.
12. The lengthy judgment setting out the history of this case and what I found to be the very significant failings, both on the part of Mrs. Lynda Barnes and Bath and North East Somerset Council, are manifest, I would have thought, and I am not going to set them out again. The respondents essentially submit that these failings should be set forth to the wider public in order to enable them to see what has been done in their name in Bath and North East Somerset, and for lessons to be learned for the future conduct of care cases by this local authority and other local authorities, and potentially for anyone who may be nursing a sense of grievance or injustice which they believe is attributable to Mrs. Barnes, to see what a court has, in a later case, found as to her conduct.
13. There were a very large number of very serious criticisms of the local authority and I made my findings. Mr. Baker sets them out in his paragraphs 27 through to 32. Mr. Sharp sets them out at his paragraph 3 and following; and Mr. Miller on behalf of Father B's mother, sets them out at his page 15 and in subsequent pages. They are all there to be seen.
14. Mr. Bellamy submits in essence that Mrs. Barnes acted outside the terms of her reasonable duties and the scope of her employment in the way that she did, and he says that the local authority are as troubled by findings about her conduct as everybody else is troubled; but he accepts ultimately, of course, that what Mrs. Barnes did was not acting other than in the course of her employment as an employee of Bath and North East Somerset. On his submissions for costs, which I will come to tomorrow, Mr. Bellamy submits that other failures and failings of the local authority could be seen as amounting to no more than errors of judgment. Without predetermining any issue of costs it seems to me that I cannot accept that submission. As to the failings of the local authority Mr. Bellamy, I think, ultimately in terms conceded that these were very serious failings indeed, and the local authority acknowledged them as such.
15. It is clear to me that there has been a greater tendency over quite a number of years now towards disclosure of the results and findings made in family cases. As an accident of chronology, yesterday was the first time that the press were allowed to attend any family court, and indeed a representative of the press attended here yesterday and listened to the case that I was then conducting. Nobody from the press, I think, has attended today, but of course the fact that the press can attend does not mean that any member of the press is entitled to report what is observed in court without the express permission of the judge. But that new departure plainly follows upon a number of judicial pronouncements over quite a number of years now towards a greater openness in family proceedings, and I particularly have in mind the words of Munby J. in Re: F [2002] 1 FLR 217 as provided to me, and particularly his paragraphs 83 and 84, and I also have in mind the words of Macur J. in Re: H (Care Plan) [2008] EWHC 327 (Fam), [2008] 2 FLR 21, at particularly her paragraphs 33 and 34. I also have particularly in mind what McFarlane J. has said in the case of Re: X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701 in his paragraph 4.
16. I am not going to repeat those observations by those judges but suffice it to say, as McFarlane J. said in his paragraph 4, in that case he took the view "there was a public interest in wide publicity being given to what took place in this case in the hope that lessons may be learned to ensure that what befell this family is not repeated elsewhere". In that case he did authorise a form of summary, as did Macur J. in the case of Re: H and it is set out towards the end of that judgment.
17. Now in our case disclosure, as I have already said, has been made to a number of practitioners who are engaged currently in cases where Mrs. Barnes has had what I describe as a significant role. I hope there was no issue about whether her role in any particular case was significant or not, but I suppose it is always open to question; but Mr. Roberts acknowledges on behalf of the guardian that it may only be by chance and because practitioners are involved in ongoing cases that those practitioners may become aware of my findings regarding Mrs. Barnes, just as anecdotally Mr. Roberts and Mr. Moradifar were engaged in another case where Mrs. Barnes was in charge of the investigation, as I understand it, and were unable to say anything about our case, though of course they knew all about the allegations and my findings.
18. So it seems to me that I have to pay pretty close attention to the fact that there may be persons in this locality and indeed elsewhere, (as Mrs. Barnes has been employed in the past by other local authorities) nursing a sense of grievance or even a sense of injustice in past cases, and who would be unable to do anything about it unless they became aware of my findings in this case other than by chance, and that seems to me a pretty strong argument for publicity of this judgment. As Munby J. quoting the journalist Miss Camilla Cavendish in the case of BBC v. CAFCASS [2007] EWHC 616 (Fam) [2007] 2 FLR 765 was to say, there is a fear that there may have been what she described as "patterns of injustice". It seems to me it is not out of the question in this case, given the extreme nature of my findings regarding Mrs. Barnes, that something similar, or not wholly dissimilar, has happened in another case, which would not be able to be known unless there was some form of publicity for my findings in this case.
19. I have already said that these were very serious failings indeed, both by Mrs. Barnes and by the local authority, and my very clear view in this case is that the public have a right to be informed insofar as they may wish to inform themselves from a law report, as to what has been done in the name of Bath and North East Somerset in this case. There may well indeed be lessons to be learned for the future. Bath and North East Somerset say they have already learnt those lessons, or they are in the process of learning them when they have read Miss Crocker's analysis, and it is commendable that they have at least commissioned that review, although it is not open to me to comment on the accuracy or appropriateness of the questions she was asked to answer, or indeed the accuracy of the conclusions she has drawn upon the questions she was asked to consider.
20. It seems to me that, as Mr. Baker has submitted, with the others, quoting Munby J. in Re F (supra), the arguments for publicity in this case are "overwhelming". I am afraid I reject the local authority's basic submission that there should be no publication, and I reject the suggestions by the guardian, I am afraid, that I should confine my disclosure to the matters that she has suggested. I fully understand this experienced guardian's reservations on behalf of the children. The last thing she wants is for there to be any risk at all of any identification of this family whatsoever. Two of the children are living with their grandparents and the third child is now the subject of a placement order, and in due course I would expect that child to be placed in a permanent substitute family. So the last thing that they want is to be identified, and I fully understand the guardian's reservations. I fully understand the mother's reservations as to whether publishing a fuller version of this judgment would not again lead to identification of the family. That is why on instructions Mr. Baker has very carefully crafted an attempt at a first draft of a summary of the case, but in my judgment the concerns that the guardian expresses and the reservations of the mother can be addressed by some further amendments of the text of the judgment as currently published in anonymised form.
21. I am not convinced at the moment that the drug and alcohol problem for Father A is something which would lead to identification. Sadly, in this day and age there are so many parents who are similarly afflicted by addiction, who are unable to look after their children, but I will leave that for some further consideration. If it is thought necessary, then the fact that Mrs. Lynda Barnes is a distinct person from Mrs. Linda Barnes in the local authority's employ can be added. The last thing I would want is for any publication of this judgment to be thought to be attributable to the other Mrs. Barnes. In my judgment there is no need for paragraphs 131 to 187 to be included in this published judgment. I understand Mr. Bellamy's concerns as to balance and I have borne the arguments in mind, but anybody who reads the judgment will know that children are not taken away from parents lightly and I have, I believe, sufficiently set out not only the reasons why the proceedings were commenced in the first place by setting out in considerable detail the injuries that one of the children suffered, but also I have set out in pretty full measure, I would have thought, the competing claims of the various parties in the case; and I have set out plainly at the end of the judgment, which is included in the anonymised version, what happened to these children, that they were all three unable to live with their parents and alternative plans had to be made for them.
22. So in my judgment the issue of balance does not require the further paragraphs which deal with the specific facts as to what was done during the proceedings so far as the parents were concerned, particularly, to be included in this published judgment. It does not, in my estimation, become unbalanced by those omissions.
23. It is not necessary, in my view, to add a postscript regarding the review that the local authority have already conducted. As I have already said, I have no way of knowing, I am afraid, if the right questions have been asked or as to how correctly they have been answered. I have also borne in mind, in considering whether to direct publicity, and thinking about those other cases where, in my language, people may be nursing a sense of grievance or injustice, the fact that the local authority have very properly, to my mind, suggested that there should be a further review with an independent body of all those cases where Mrs. Barnes has had a significant role. I do not diminish that arrangement that has been put in place, or is about to be put in place by the local authority, but in my judgment it does not deflect from the need for those persons who are involved in the cases to have the opportunity to know what the court has said about Mrs. Barnes, rather than, however independent the body may be, that body reviewing their case and seeing whether any injustice has taken place.
24. In my judgment this publicity is essential in the extraordinary background of this case, which is quite unique in my experience, and I suspect in the experience of quite a number of those who took part in it, despite their vast and lengthy experience of these courts. It is an overwhelming case for publicity and I have considered the alternatives as to whether a summary should be directed, as to whether a different form of anonymised judgment should be directed, and I have decided that the current version is the one that should be publicised so long as those injunctions set out in paragraphs 12 and 13 of the order of 22 December 2008 should remain. It would not be appropriate for any further dissemination to be made. I understand Mr. Roberts' point about somebody who may find themselves reading the judgment and reflecting upon their own case, having the chance to take further steps. But I have considered that argument and it is not sufficient, in my judgment, to refuse the order which the respondents seek.
25. So for those reasons, (which do not, I acknowledge, do justice to the vast learning and assistance you have very kindly provided to me in the written submissions and the large number of authorities, many of which I have had a chance to look at before today), that is my decision on this topic, and I will hope to deal with the question of costs tomorrow.

Order in the following terms

PENAL NOTICE

If you disobey this order you may be found guilty of contempt of court and may be sent to prison or fined or your assets may be seized.

IMPORTANT NOTICE

This order contains injunctions. You should read this order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge the order.

BEFORE His Honour Judge Barclay sitting as a judge of the Family Division on the 28^th and 29^th April 2009 in the Guildhall, Bristol

UPON hearing Leading and Junior Counsel for the Applicant, 1^st and 3^rd Respondents, Junior Counsel and Solicitor for the 7^th Respondent, Junior Counsel for the 2^nd Respondent and 4^th to 6^th Respondents, and the 8^thand 9^th Respondents in person, there being no attendance on behalf of the 1^st or 2^nd Interveners,

AND UPON the Court reading the written submissions filed by those representing the parties, and a letter sent by the 1^st Intervenor dated 23^rd April 2009,

IT IS ORDERED that

(1) subject to paragraph (3) below, there be permission to publish the re-amended anonymised transcript of paragraphs 1 to 130 and 188 to 189 of the judgment delivered on 22^nd December 2008 as agreed by the parties and approved by the court;

(2) subject to paragraph (3) below, an expedited transcript of the judgment delivered on 28^th April 2009 giving reasons for the order set out in paragraph (1) above be prepared and there be permission to publish an agreed, anonymised and approved extract of the said transcript with the transcript of part of the judgment of 22^nd December as authorised under paragraph (1) above;

(3) no part of the judgment of 22^nd December 2008 shall be published (a) before the court has approved for publication the extract of the judgment of 28^th April 2009 and (b) in any event before 6^th May 2009;

(4) there be an injunction prohibiting and it is hereby ordered that no person shall make any disclosure of the said judgment to any person not authorised by this order or the order made herein on 22^nd December 2008 or Part XI of the Family Proceedings Rules 1991 as amended by the Family Proceedings (Amendment) (No.2) Rules 2009;

(5) there be an order prohibiting the publication or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service or any other electronic technology of

(a) the names and addresses of, or any information concerning, the three children [Child 1, Child 2 and Child 3] as may be likely to lead to the identification of the children as having been the subject of proceedings under Part IV of the Children Act 1989 and

(b) the names and addresses of the persons whose names and addresses are set out in the First Schedule hereto, or any other information concerning the said persons, as may be likely to lead to the identification of such persons as being involved in proceedings under Part IV of the Children Act 1989;

(6) there be an injunction prohibiting and it is hereby ordered that no person shall seek or solicit any information concerning the said children or these proceedings from the following persons

(a) the children;

(b) the persons named in the First Schedule hereto

(c) any party to these proceedings (including the children's guardian), or their employees, or any intervener in these proceedings, or the legal representatives of any party or intervener;

……………………………

(7) copies of this order endorsed with a notice warning of the consequences of disobedience shall be served by the Bath and North-East Somerset Council (and may be served by any other party to the proceedings)

(a) by service on such newspaper and sound or television broadcasting or cable or satellite programme services as they think fit by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator (in the case of an internet website); and/or

(b) on such other persons as the applicant (or any other party to the proceedings) may think fit in each case by personal service;

(8) the parties and any other person affected by any of the restrictions in this order may make application to vary or discharge it on no less than 7 days' notice to the parties and intervenors (whose addresses for service are recited in the Second Schedule hereto), such application to be reserved to His Honour Judge Barclay

FIRST SCHEDULE

[The names of members of the family]

SECOND SCHEDULE

[Names of the parties and their addresses for service]

EXPLANATORY NOTE

1. In these proceedings the court has made final orders in care proceedings in respect of three children following a contested hearing. On 22^nd December 2008, the court delivered a judgment giving reasons for its decision and making findings on a number of issues that arose in the course of the hearing.

2. The court has now decided that it is in the public interest to permit publication of part of that judgment provided that the children and other members of the family are not identified. On 28^th April 2009, the court therefore made an order giving permission for publication of an anonymised transcript of part of the judgment.

3. The order included a reporting restriction order to protect the rights of the children and other members of the family to respect for family life by

(a) preventing any further disclosure of the judgment beyond that which is permitted by court order or other regulations;

(b) preventing publication of information likely to lead to the identification of the children and other members of the family, and

(c) precluding media organisations from seeking information about the children and other members of the family.

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