England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COVENTRY DISTRICT REGISTRY

		27th September 2010

1. On 19^th February 2010, at the end of what had been listed as a four week finding of fact hearing, I handed down a written judgment in which I gave leave to a local authority to withdraw care proceedings in respect of three children. I also ordered the local authority to pay £50,000 towards the public funding costs of each parent (£100,000 in total). I subsequently agreed to publish an abbreviated and anonymised version of my judgment. This was made available to the Press and posted on Bailii on 16^th June.
2. The published version of the judgment contained the customary rubric designed to protect the anonymity of the children. The rubric did not permit the identification of the local authority.
3. The Press Association asked for permission to name the local authority. The request was made informally through the Judicial Communications Office. After discussions with the President's Office I agreed to issue a Press Release explaining why the local authority had not been identified. So far as is material, I said this:

2. It was and remains my view that nothing should be published which would lead to the identification of the children concerned. My judgment gives an outline of the problems which each of these children has to cope with. Publicity would not be in their best interests.

3. The view I have taken thus far is that prohibiting the identification of the local authority is an integral part of protecting the identity of these children…

4. On 13^th August the BBC issued an application seeking 'an order (a) setting aside the prohibition on identifying the local authority concerned in these proceedings…and (b) thereby permitting the BBC to name that local authority as the local authority concerned'. I heard that application on 17^th September.

Background

5. The background history is set out very fully in my judgment of 19^th February 2010, reported as Re X, Y and Z (Children) [2010] EWHC B12 (Fam). For the purpose of this present judgment it is sufficient for me to set out a brief overview of the main facts.
6. At the time of my earlier judgment X, Y and Z were aged 12, 9 and 7 respectively. The local authority had been concerned about this family for several years, though it was not until June 2008 that care proceedings were finally issued. The main concerns set out in the local authority's first threshold document can be categorised, broadly, as centring around issues of neglect. In the summer of 2009 the local authority amended its threshold document, removing most of the original allegations and adding allegations of fabricated illness.
7. Although the local authority's first interim care plans proposed that the children be removed from the care of their parents and placed in foster care, it did not press that point, instead being content for the children to remain in the care of their parents under the aegis of a working agreement. However, in August 2009, in the light of a report from a medical expert concerning issues of fabricated illness, the local authority sought to remove the children. Their application was refused. Three months later the local authority made a second attempt to persuade the court that the children should be removed. This time their application was withdrawn mid-hearing.
8. The case was listed for a fact-finding hearing to begin on 25^th January 2010 with a time estimate of four weeks. Twenty-eight witnesses were warned to attend. In the event, only one was called. Having reassessed its case the local authority decided at an early stage of the hearing to seek leave under FPR r.4.5 to withdraw the proceedings in respect of all three children.
9. Put shortly, the BBC contends that the circumstances leading up to the local authority's decision to apply for permission to withdraw the proceedings, and in particular the costs order which followed, are matters of legitimate public interest, not least to the inhabitants and council tax payers of the area served by this local authority, and that permission should be granted for the local authority to be named.
10. At this hearing the parents appeared in person. The children were not represented. It is my understanding that the Legal Services Commission refused public funding both for the parents and for the children for the purpose of this present hearing.

The law

11. There is now considerable jurisprudence on the key statutory provisions (s.97(2) Children Act 1989, s.12 Administration of Justice Act 1960) and on the balancing of the competing interests protected by Art 8 and Art 10 of the European Convention on Human Rights and Fundamental Freedoms. For the purpose of this present application there is no disagreement between counsel as to the relevant legal principles.
12. So far as is material, s. 97(2) Children Act 1989 provides that:

No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify

(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act…may be exercised by the court with respect to that or any other child…

13. The decision of the Court of Appeal in Clayton v Clayton [2007] 1 FLR 11 makes it clear that the prohibition contained in s.97(2) comes to an end when the proceedings come to an end. In this case the care proceedings came to an end on 19^th February 2010 when I gave permission for them to be withdrawn. There was no application by any party for a continuing order for anonymity.
14. The only remaining statutory restrictions are those imposed by s.12 Administration of Justice Act 1960. So far as is material, s.12 provides that

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say –

(a) where the proceedings …

(ii) are brought under the Children Act 1989…

(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

15. Although s.12 imposes restrictions upon discussion of the facts and evidence relating to the proceedings, it does not prevent publication of the names of the parties, the children or the witnesses. That was made clear by Munby J (as he then was) in Re B (A Child)(Disclosure) [2004] EWHC 411 (Fam).
16. In this case the rubric appearing on the first page of the published version of my earlier judgment was in these terms:

'The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.'

The legal effect of this rubric is uncertain. That is an issue that was considered by Munby J in Re B: X Council v B [2008] 1 FLR 482. At para [12] he said:

'Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.'

On behalf of the BBC, Miss Wilson told me that for the purpose of this present application the BBC is prepared to accept that it is bound by the rubric.

17. The BBC accepts that if the court were to allow the publication of any material likely to lead to the identification of these children then the children's Art 8 rights would be engaged. In those circumstances the court would be required to balance the BBC's rights under Art 10 against the children's rights under Art 8. The approach to that balancing exercise was set out by the House of Lords in In re S (A Child)(Identification: Restrictions on Publication) [2005] 1 AC 593. Lord Steyn (with whom the other Law Lords agreed) said:

'[17] 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 AC 457. 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 justification 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…'

18. More recently, in Clayton, Sir Mark Potter P summarised the position thus:

'[58]…each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in the terms of proportionality is carried out.'

19. In Re B, C and D (By The Children's Guardian) [2010] 1 FLR 1708 at para 22, Holman J made the point that the two passages to which I have just referred emphasise 'how case specific on the facts and circumstances of the individual case the approach must be…' On behalf of the local authority, Mr Pressdee QC very properly emphasised the importance of this last point in determining the case with which I am concerned. Although the law is not in dispute, the court must be careful to apply it directly to the facts of the instant case.
20. Having sounded that note of caution, it is nonetheless appropriate to note that it is increasingly the case, as was observed in n Re B: X Council v B [2008] 1 FLR 482, that local authorities are being named. Munby J explained the reasons for this:

'[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 criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording the 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'

The Article 8 rights

21. On behalf of the BBC, Miss Wilson asserts that the only proper basis for maintaining the local authority's anonymity must be founded on the grounds that identifying the local authority might reasonably lead to the identification of the children. Only then would the children's Art 8 rights be engaged. Mr Pressdee concedes that if there is no risk of the identification of the local authority leading to the identification of the children then the children's Art 8 rights are not engaged. The first issue for the court, therefore, is to assess whether identification of the local authority might reasonably lead to the identification of the children.
22. In a statement filed in support of the BBC's application, Vanessa Pearce, a broadcast journalist employed by the BBC at BBC Radio Coventry & Warwickshire, makes the point that the population of Coventry is more than 300,000. That fact alone, she asserts, militates against the risk that the family, and in particular, the children would be identified were it to be generally known that the case concerned this local authority.
23. Ms Pearce goes on to say that the BBC is not considering broadcasting a 'human interest' story and will therefore not be concentrating on the issues relating to the family but will instead concentrate on the court's criticisms of the local authority in the context of public accountability.
24. Miss Wilson makes the point that if the application is granted the BBC will continue to be bound by the rubric and will also be bound by its own Editorial Guidelines to broadcast responsibly. Whilst that may, indeed, be so it is important not to lose sight of the fact that if the local authority is identified then it is identified not just to the BBC but to all the world. As Hedley J put it in Z Council v TS & Ors [2008] EWHC 1773 (Fam) at para 10

'…once disclosure is allowed it is disclosure to all the world and not every organ of the media may be as scrupulous or indeed as concerned [as ITV Wales] to protect the identity of [this child]'

25. Two statements have been filed on behalf of the local authority, one by the social worker allocated to the children during the latter stages of the court proceedings ('TD') and one by the Director of Children's Services. TD raises a number of issues which he believes will lead to a high risk of the children being identified if the local authority is itself named. In particular he says that the family

(a) is clearly known within the city and their local community;

(b) is a close insular family who travel around the city together and who stand out in terms of their appearance;

(c) is an easily identifiable family with unique characteristics and appearance, some of which have already been identified in the published judgment;

(d) is involved in a number of community activities and the children are well-known within their own schools.

TD does not make clear what he has in mind when he refers to 'unique characteristics' and 'appearance'. I have seen the parents in court many times. I have seen photographs of the children. I am not aware of any 'unique characteristics' that would make them easily identifiable.

26. Mr Pressdee submits that so far as the jigsaw of information is concerned, the information already in the public domain represents no more than the edge pieces of the jigsaw whereas naming the local authority would be the equivalent of putting in the centre piece of the jigsaw which will identify the family. The risk of that happening is, he submits, 'highly likely'.
27. Mr Pressdee also reminds me that in my Press Release I expressed the opinion that 'prohibiting the identification of the local authority is an integral part of protecting the identity of these children'. However, he also accepts that the observations made in the Press Release were made without the benefit of hearing any submissions on behalf of the media.
28. As my analysis of the law makes clear, although reporting of the case is restricted by the terms of s.12 Administration of Justice Act 1960 and by the rubric endorsed on the judgment, none of that prevents the parents themselves from discussing the case with friends, neighbours and acquaintances.
29. Though the mother is not represented on this application the court has received a letter from her solicitors and has also heard representations from both parents in person. In their letter, the mother's solicitors say

'The mother supports the application of the BBC to name the local authority as she believes that there are issues of public interest in this case which can only be meaningfully reported by the local authority being named. She hopes that these issues being reported may help ensure that local authorities give careful consideration as to how such cases are handled in future, to prevent another family going through the same experience. She is content that doing so will not lead to identification of the children as set out in the application of the BBC and she would not do anything which would allow the children to be identified.'

The parents made the same point in their brief oral submissions.

30. The father reminded me that he does a lot of voluntary work and that during the proceedings the local authority had forced him to disclose their concerns about him to the various organisations he worked with. He also made the point that many of the people with whom the family engage on a regular basis are already aware that the children have been the subject of care proceedings. It is only people who are not significant to the family who may conceivably be better able to identify them if the local authority is named. The father does not regard that as a problem.
31. After handing down judgment on 19^th February a draft abbreviated and anonymised judgment was circulated to counsel for their comments. Changes were made in response to suggestions made by counsel. No concerns were expressed that the level of 'identifying information' was such as to lead to the likelihood of the children being identified. It is now more than three months since that information was placed in the public domain. There is no suggestion that it has led to the family being identified. Miss Wilson submits that with the passage of time interest in identifying the family is likely to have diminished. That may be so. However, I am satisfied that there is a risk that the identification of the local authority, when added to the information already in the public domain, will increase the possibility of the family being identified. I assess that risk as being low to medium.
32. If, as a result of the identification of the local authority, the children were themselves to be identified, what are the risks to them? In the Press Release to which I referred earlier, I made the point that in my judgment publicity would not be in the children's best interests. I remain of that opinion. However, I did not undertake any assessment of the nature of the potential risks for the children if, as a result of publicity, they were to be identified.
33. On this issue TD opines that

'The effect of the very personal information about the children as outlined in the judgment coming into the public domain could have significant adverse effects upon the children. It is likely to further ostracise them within the community and could result in bullying and increased problems in and out of school. There have been previous significant issues of bullying including a significant assault by a number of pupils upon X which escalated to an extent that it has significantly compromised X's education. The assault is understood to have originated by X "standing out" and promoting himself as different within the school. Identification of the children will generate issues for the schools the children attend in terms of managing any teasing or bullying and the negative impact on the children.'

34. X is well aware of the fact that he has been the subject of care proceedings. He has experienced local authority involvement in his life since birth. During the care proceedings it was part of the local authority's case that the parents inappropriately shared information about the proceedings with the children and did not shield from them their own views about the local authority. As a result, it was noted that the children, and X in particular, shared their parents' hostility towards social workers. Given all that is known about X it would be surprising if he had not already been forthright at school in expressing his views about social workers.
35. TD expresses concerns about the risk of the children acting 'as their own self publicists in highlighting very private information about themselves' at school. He does not address the issue of whether this has already happened. If it has not already happened, in the light of what I know about this family I am doubtful that identification of the family will increase the risk of it happening. If it has already happened, identification of the family is unlikely to make the position worse.
36. Mr Pressdee makes the point that in the event of the children being identified the court should be concerned about the risk of personal information being posted on social networking sites. That is, I accept, a relevant concern. In the report 'The views of children and young people regarding media access to family courts' prepared by Dr Julia Brophy on behalf of the Children's Commissioner for England and published in March 2010, Dr Brophy notes that almost all of the children and young people who took part in the research said that

'children in cases will be fearful that very private, painful, humiliating, embarrassing and shameful information about their care and family will be placed on social networking sites. Children said anyone can download information from newspapers and post it on the internet. It will then be available forever – to be 'googled', downloaded, added to blog sites and circulated by text and email at any time throughout a person's life.

37. With respect to this concern, I accept that there is a risk. However, I make two points in response. Firstly, as Mr Pressdee himself reminded me, I am not concerned with the generality of children. I am concerned with X, Y and Z. There is no evidence that X, Y and Z share the views of the children interviewed by Dr Brophy. Secondly, the evidence before me in the care proceedings made it clear that this family, parents and children, spend a lot of time on the internet. A great deal of information concerning this family has been in the public domain since June. There is no suggestion, whether from the local authority or the parents, that identifying information has already been posted on social networking sites or, if it has, that it has caused the children any distress. However, I accept that the risk will increase if the local authority is identified.
38. The local authority's involvement with this family extended over a long period (more than a decade). The children do now need time and space in which to be able to process their experiences of being part of a family that has been the subject of intense scrutiny by social workers and to adjust to some semblance of normal family life. It is for that reason that I have said that publicity would not be in their best interests. However, being identified by the community in which they live is very different from being in the media spotlight. As the father said, the children's involvement with the local authority is already known by a whole range of professionals and others who are or have been involved in the life of the family over the years. The risk of harm from being identified by members of the local community as a result of naming the local authority is not the same as the risk of harm from being themselves the subject of media interest. The rubric prohibits the latter. The risk of the former is, in my judgment, low.

The Article 10 rights

39. It is common ground that the BBC's Art 10 rights are engaged. Mr Pressdee concedes that there is a legitimate public interest in the local authority being identified.
40. Echoing the passage from the judgment of Munby J in Re B: X Council v B to which I referred earlier, Miss Wilson argues that there is a powerful public interest in the public knowing the identity of the local authority in a case such as this because of the draconian nature of the powers they wield and the concomitant need for public accountability. The more so is that the case when, as in this case, the court has been critical of the actions of the local authority concerned.
41. Miss Wilson identifies a number of specific issues dealt with in my earlier judgment which she asserts engage the public interest and which the local community has a legitimate interest in being informed about. She set them out in her skeleton argument as follows:

19.1 The local authority's volte-face, from seeking the immediate removal of X, Y, Z from their parents to withdrawing its application for care orders, merely on a reconsideration of its own evidence…raises questions about its procedures in this important areas (sic) of its responsibilities;

19.2 The poor decision-making process, including the local authority's failure to follow national guidance on dealing with fabricated or induced illness, was a material failing in its conduct…and raises questions about how the local authority implements and applies such guidance;

19.3 Its failure at the end of the proceedings to consult the children's Guardian, is another example of the local authority's failure to consult appropriately and raises questions (potentially) of procedures and resources;

19.4 The financial impact of the above failings on the public purse affect matters of legal aid budgets…and questions of how the local authority allocates its not unlimited funds;

19.5 The local authority's attitude to the provision of services to the family…and towards taking responsibility for the financial loss which its actions had caused the family to incur, raise questions about its treatment of families for which it has some responsibilities and those are matters for legitimate public questioning;

19.6 The finding that the local authority acted outside the range of what was reasonable, thereby justifying an adverse costs order…which the public must meet (somehow), makes the issue worthy of public scrutiny and not just internal consideration by the local authority itself

42. Miss Wilson submits that all of these issues engage matters of high, or at least serious, concern. However, they are local issues, being specific to this local authority. The constituents of this local authority have Art 10 rights to be informed about what their local council has done. As matters stand at the moment, it is unlikely that any regional media organisation, reporting local news, could report my earlier judgment for fear that to do so would effectively disclose the local authority's identity. In these circumstances, as she puts it, 'The restriction on the Article 10 rights is therefore real.' I accept that submission.
43. As I noted earlier, on behalf of the local authority evidence has been filed by the Director of Children's Services. In that statement the Director says that he accepts that errors were made by the local authority in how this case was managed but goes on to give the assurance that 'Measures have now been taken to ensure that procedures are in place and that lessons have been learnt.' In response, Miss Wilson makes the point that unless the local authority is identified the population served by this local authority will not know of the court's criticisms and will be equally unaware of the steps that have been taken to put matters right.
44. The Director of Children's Services goes on to make the further point that

'Should the identification of the local authority be permitted I also have concerns about the ability of the local authority to fully respond to any issues raised by the BBC or any other reporting agency. For this level of understanding to be achieved it would require a lot of information about the children that is not contained in the Judgment to be disclosed. In doing so the children's welfare would be compromised. I am therefore of the view that the press will not be able to effectively present a balanced picture of the actions of the local authority, and multi-agency working, without being provided with information that would breach the children's right to privacy and avoid any community animosity or adverse reaction.'

45. Miss Wilson submits that in this passage the Director appears to be seeking to protect the reputation of the local authority, though Mr Pressdee did not accept that to be the case. As Munby J made clear in Re B: X Council v B, in a passage to which I referred earlier, that is not a permissible ground for affording anonymity to a local authority.
46. For the local authority, Mr Pressdee makes the point that it is by no means unique within public law Children Act proceedings for a court to find that the s.31(2) threshold criteria have not been met or, indeed, for a local authority to seek to withdraw proceedings which it had previously chosen to pursue. All of that is undoubtedly true. It might also be said that it is not especially unusual for judges to be critical of the way particular cases have been managed by individual local authorities. Pointing out instances where local authority social workers have not complied with best practice is part of the judicial function and is important in the context of seeking to improve performance and raise standards. However, it is clear from my earlier judgment that the circumstances of this case go beyond what might be regarded as 'routine' criticism of a local authority. The order for costs underlines that point. Orders for costs against local authorities are, in my experience, rare.
47. With respect to the statement of the Director of Children's Services, Mr Pressdee said that he hoped the parents would take comfort from the approach of the local authority in addressing the local authority's failings in this case. Whether they take comfort or not is, with respect, of relatively low importance so far as Art 10 is concerned. What is of greater importance is the fact that, as Mr Pressdee concedes, there is a legitimate public interest in the population served by this local authority knowing of the failings highlighted in this case and being assured that the local authority has indeed taken appropriate steps to address them.
48. Mr Pressdee submits that if the local authority is identified then even if it is given the opportunity by the BBC to participate in any broadcast discussion of the court's criticisms it will be unable to respond effectively without referring to the voluminous documentation in the case, none of which is in the public domain. I am not persuaded that that is a point of real substance. In the event that the local authority agreed to participate in any broadcast discussion of the court's criticisms it would be unnecessary, in my judgment, for the local authority to descend to that level of detail in order to address the points.

The ultimate balancing test

49. In undertaking the ultimate balancing test the children's welfare is not my paramount consideration though I accept that their welfare is one of the issues I must take into account. Mr Pressdee submits that when children involved in care proceedings are identified then that can have 'calamitous consequences' for them. He submits that if these children are identified then the consequences for them would be 'disastrous'. He says that it is clear from my earlier judgment that these children are 'highly vulnerable children' and that they will lack the resources to respond if their identity becomes public knowledge.
50. With respect, that submission is put too high. It is not reflective of the realities of this case. The children have the right under Art 8 to respect for their private and family life. If, by identifying the local authority, the children were themselves to be identified then that would be a breach of their Art 8 rights. I have assessed that risk as low to medium. If that risk were to materialise then it is possible that the children may suffer harm as a result. I have assessed that risk as low.
51. So far as concerns the population served by this local authority, there is a legitimate public interest in the local authority being identified. Whereas the risk of breaching the children's Art 8 rights is potential, the breach of the applicant's Art 10 rights is, at present, actual and arises as a direct result not of any statutory restriction on publication but as a result of the rubric set out at the beginning of my earlier judgment.
52. Although a considerable amount of information is already in the public domain as a result of the publication of my earlier judgment, I accept that a key piece of information is missing and that is the identity of the local authority. When weighed in the balance against the potential breach of the children's Art 8 rights and the risks that flow from such a breach, is it a proportionate restriction on the Art 10 rights of this BBC to restrain the identification of this local authority? I have come to the conclusion that it is not. The residents of Coventry have the right to know that the local authority concerned in this case is Coventry City Council and the BBC has the right to report that fact. I therefore grant the BBC's application but in doing so make it clear that in light of the contents of my earlier Press Release, Coventry City Council acted reasonably in opposing the BBC's application on the grounds that it advanced.
53. Finally, it is appropriate to record that at the hearing of the BBC's application it was agreed between the parties that no matter what decision I should come to on the BBC's application there should be no order for costs.