England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COVENTRY DISTRICT REGISTRY

		8 November 2013

1. These proceedings concern Katie. Katie is now aged 16. She is a ward of court. How Katie came to be made a ward of court is described in two earlier judgments handed down on 27 July 2012 (Re K (Post-Adoption Placement Breakdown) [2013] 1 FLR 1) and on 22 November 2012 (Re E (Wardship Order: Child in Voluntary Accommodation) [2013] 2 FLR 63).
2. The proceedings have given rise to issues of transparency. I dealt with those issues, in part, in a judgment handed down on 25 July 2013 – Re K (A Child: Wardship: Publicity) [2013] EWHC B11 (Fam). The parents now raise three related issues. Firstly, they invite me to give leave to publish, in anonymised format, an extempore judgment I gave on 19 February 2013 relating to the provision of therapy for Katie. Secondly, in their future discussions with the media (permitted by my judgment dated 25 July 2013) they seek permission to identify themselves as 'MG and FG, the parents of Katie' (the pseudonyms I used for Katie and her parents in my earlier published judgments). Thirdly, they seek a Declaration that it would not be a contempt of court for them to publish, by discussing with the media, certain specific information relating to the history of their experiences of parenting a child suffering from reactive attachment disorder ('RAD'), of working with this local authority and of engaging with the family justice system. Those three issues are the subject of this judgment.
3. The background history is set out fully in the earlier judgments to which I have referred. It is unnecessary to repeat it.

The 19 February judgment

Background

4. In my judgment dated 27 July 2012 I highlighted Katie's urgent need for therapy. That was and is one of the most important aspects of this case. I was critical of the local authority for what I considered to be its tardiness in addressing that issue (see in particular paragraphs 127 to 131).
5. Had the care order I made on 27 July 2012 remained in force the court would have had no continuing supervisory role in monitoring the authority's discharge of its responsibilities. That would have been a matter for the Independent Reviewing Office. But the care order does not remain in force. It was discharged by the Court of Appeal on 22 November 2012. Katie was then made a ward of court. The court does, therefore, have an ongoing role to play in the local authority's management of Katie's care. That role is particularly important so far as Katie's therapeutic needs are concerned.

Submissions

6. On behalf of the parents, Mr Downs submits that the provision of therapy is 'an important part of the narrative of this extraordinary case'. The judgment of 19 February 2013 sets out the challenges of facilitating therapy in a case such as this and the particular difficulties the parents have had in securing the co-operation of Coventry City Council in enabling Katie to access appropriate therapy. It is therefore appropriate that that judgment, in anonymised format, should be put in the public domain.
7. The local authority does not oppose publication of that judgment, though invites me to redact extracts from an e-mail from Dr Richer in which he makes reference to Katie's attitudes and behaviours.
8. The Children's Guardian opposes publication. In her submissions on behalf of the guardian, Miss Meachin makes three points. Firstly, that the issues addressed in that judgment are discrete issues concerning choice of therapy provider. The point being made here, I assume, is that there is no public interest in those issues. Secondly, that the issues addressed in the February judgment 'do not fall within the areas analysed by the Court' in Re K (A Child: Wardship: Publicity) and in particular the analysis set out at paragraphs 76 to 80. Thirdly, that it is inappropriate to publish Dr Richer's references to Katie's attitudes and behaviours. This third point is, in essence the same point as that made by the local authority.

Discussion

9. Since I handed down my judgment on transparency issues on 25 July the pressing need for much greater transparency in the family courts has been underlined by Sir James Munby P in Re J (A Child) [2013] EWHC 2694 (Fam). He there said,

'[25] Before proceeding any further, I do, however, need to emphasise a number of critically important matters. There is nothing new in what follows but the matters to which I wish to refer are so important that they bear constant repetition.

[26] The first matter relates to what it has become conventional to call transparency. There is a pressing need for more transparency, indeed for much more transparency, in the family justice system. There are a number of aspects to this.

[27] One is the right of the public to know, the need for the public to be confronted with, what is being done in its name. Nowhere is this more necessary than in relation to care and adoption cases. Such cases, by definition, involve interference, intrusion, by the state, by local authorities and by the court, into family life. In this context the arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling. The public generally, and not just the professional readers of law reports or similar publications, have a legitimate, indeed a compelling, interest in knowing how the family courts exercise their care jurisdiction: Re X; London Borough of Barnet v Y and X [2006] 2 FLR 998, para [166]…

[31] The compelling need for transparency in the family justice system is demanded as a matter of both principle and pragmatism. So far as concerns principle I can do no better than repeat what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115, 126, where, having referred to Holmes J's dissenting judgment in Abrams v United States (1919) 250 US 616, he continued:

"freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. … It facilitates the exposure of errors in the … administration of justice of the country."

[32] This takes me on to the next point. It is vital that public confidence in the family justice system is maintained or, if eroded, restored. There is a clear and obvious public interest in maintaining the confidence of the public at large in the courts. It is vitally important, if the administration of justice is to be promoted and public confidence in the courts maintained, that justice be administered in public – or at least in a manner which enables its workings to be properly scrutinised – so that the judges and other participants in the process remain visible and amenable to comment and criticism. This principle, as the Strasbourg court has repeatedly reiterated, is protected by both Article 6 and Article 10 of the Convention. It is a principle of particular importance in the context of care and other public law cases.'

Those remarks provide the backdrop against which decisions relating to publication of family court judgments must be made. They are contextual.

10. In Re K (A Child: Wardship: Publicity) I set out the law relating to the approach the court must take in any case in which it is required to decide whether to relax the provisions set out in s.12 Administration of Justice Act 1960 (see paras 54 to 63). I have in mind the same principles in determining this present application. I also have in mind the context in which the decision falls to be made.
11. Katie's Art 8 rights and the parents' (and the media's) Art 10 rights are as set out in my judgment of 25 July. The factors I took into account in my earlier judgment in undertaking the ultimate balancing test (see paras 76 to 80) are equally relevant to the decision whether to agree to publication of my judgment of 19 February. I am in no doubt that the balance comes down in favour of publication. In arriving at that conclusion I have two particular points in mind in addition to those set out in my earlier judgment.
12. The first point relates to the subject matter of the judgment of 19 February. Katie is a young person who suffers from RAD. Her need for therapy is clear and longstanding. At the time of my judgment of 19 February that need was unmet. The delay in addressing that need continued to be a matter of great concern. It is not an exaggeration to say that the provision of appropriate therapy for Katie is crucial to her long-term future. If there is a public interest in telling this family's story (and I remain satisfied that there is) then this issue is an important part of that story. It should be told unless to do so would compromise Katie's anonymity.
13. Secondly, and more generally, transparency is important not only to enable the public to see and have confidence in the process by which the family court arrives at what are frequently life-changing decisions for children and families but also to provide a window through which the public may see the way that local authorities discharge their duties, to provide a better understanding of both the challenges facing local authorities and of the way in which local authorities approach those challenges.
14. In my judgment, the risk that publication of the judgment of 19 February may compromise Katie's anonymity is low. In those circumstances I am satisfied that it would not be proportionate to refuse the parents' request for permission to publish that judgment. Their wish to shine a light on this issue is both reasonable and justified. I give permission for an anonymised version of that judgment to be published. I agree to the minor redaction requested by the local authority and the guardian.

Identifying themselves as MG and FG

Background

15. The parents wish to be able to discuss their experiences with the media. Their reasons for wishing to do so are set out in my judgment of 25 July 2013 at paragraphs 14 to 22. The parents now make the point that the order I made on 25 July is of no real benefit to them unless in any discussions with the media they are able to identify themselves as 'MG and FG, the parents of Katie'. They do not wish their identities to be made public. To do so would have the inevitable consequence that Katie, too, would be identified. They readily accept that that would not be appropriate. Indeed, that has been their permission throughout. As long ago as 13 February, in submissions filed on their behalf, Mr Downs said that the parents respect Katie's right to privacy,

'and readily agree that her name should not be reported in association with this case and further that where she lives should not be reported either. They appreciate that the extent to which they tell their own story has to be restricted insofar as they wish to avoid inadvertently identifying Katie. Specifically that would mean not identifying themselves (by means of publishing their names) as the parents/Respondent/Appellants in the two Bailii judgments.'

However, they do want to be able to say to the media 'we are MG and FG, the parents of Katie'. It is their ability to identify themselves in that way that gives context and colour to any discussion of their experiences.

Submissions

16. For the parents, Mr Downs submits that there is nothing in s.12 Administration of Justice Act 1960 or in the rubric set out in the judgment of 27 July 2012 which would prevent the parents from discussing the judgment in public provided they did so as MG and FG. If the court disagrees with that proposition then the parents seek the court's permission to identify themselves as MG and FG, essentially so that they can give context and colour in their discussions with the media.
17. The local authority submits that the combined effect of the rubric and s.12 is that the parents can discuss in the media the fact that they have been involved in care proceedings brought by Coventry City Council and can discuss the nature of the proceedings but that what they may not do is to link themselves or Katie to the judgments.
18. On behalf of the guardian, Miss Meachin submits that the parents' ability to identify themselves as 'MG and FG, the parents of Katie' does not increase their ability to talk of their experiences and participate in debate about wider issues. What it does do is to risk Katie being identified as 'Katie' and thus undermines her right to privacy and anonymity.

Discussion

19. The parents rely on a passage from the decision of Munby J (as he then was) in Re B, X Council v B (No 2) [2008] 1 FLR 1460. The local authority disagrees with the parents' interpretation of that passage. At para [13] Munby J said:

"There is nothing to prevent Mrs B or J or W identifying themselves in public as people involved in the care proceedings brought by Blackpool Council or, subject to compliance with section 12, discussing in public the nature of the dispute in the proceedings. Nor is there anything to prevent Mrs B or J or W making whatever use they wish of my judgment in the anonymous form in which I gave leave for it to be reported. But what, on this view of the rubric, they cannot do – and what of course they want to do – is to link themselves with the judgment; to say that the Mrs B referred to in my judgment is in fact Mrs Brown and that the J and W referred to in the judgment are in fact James and Wilfred Brown (I use pseudonyms to illustrate the point, these are not in fact their true names)."

He went on to make clear that if parents wish to link themselves with the judgment by name their remedy is to seek a suitable modification of the rubric which appears at the beginning of anonymised judgments.

20. In my judgment it is clear from the passage to which I have just referred that in any discussions with the media the parents are already entitled to identify themselves as 'MG and FG, the parents of Katie'. That much is apparent from Munby J's use of the definite article:

'There is nothing to prevent Mrs B or J or W identifying themselves in public as people involved in the care proceedings brought by Blackpool Council or, subject to compliance with section 12, discussing in public the nature of the dispute in the proceedings.'

What they and the media are not entitled to put into the public domain is that they, Jane Jones and Peter Jones (not their real names), are MG and FG. Identifying themselves publicly by their real names would lead to Katie herself being identified. It would remove the protective cloak of anonymity which is currently in place.

21. If the parents were applying for permission to link themselves by their real names with the judgments in this case then I am in no doubt that it would be appropriate to refuse that application. In those circumstances, as between Katie's Art 8 rights and the parents' (and media's) Art 10 rights, the balance would come down clearly in favour of protecting Katie's Art 8 rights. However, I am satisfied that they are entitled to link themselves with the judgments in the limited way I have described.
22. I acknowledge that even that limited entitlement is not without risk of identification of MG and FG as Jane Jones and Peter Jones. The print media may wish to accompany the text of a story with photographs. The broadcast media may wish to broadcast an interview with the parents. It is not only names that lead to identification. Images and voices can also lead to identification. However, these are issues which can be addressed by the media and controlled by the court. This is well illustrated in the judgment of Holman J in Re B, C and D (by the Children's Guardian) [2010] 1 FLR 1708:

'[46] …if there is any publication of the birth parents' story it must not include their names or any recognisable or identifiable picture of them. Provided, however, that a picture (whether in print or on television) is conscientiously and responsibly pixellated and/or 'rear view' or otherwise obscured or disguised, such that the depicted person cannot be recognised or identified, then a picture or image may be depicted. Similarly, since there is no evidence that any of the children would or could recognise a birth parent's voice, I do not require that their voice or speech is disguised or distorted…

[50] It would be unthinkable that any sound or television or similar broadcast would be broadcast live, with the high risk of a birth parent blurting out a name or identifying feature, whether deliberately or accidentally, and any pre-recorded broadcast must be similarly rigorously edited, if necessary by brief sound distortion (as in an expletive deleted), to prevent disclosure…'

23. Similar protection can be afforded in this case. Any published images of the parents must be adequately pixellated. Voice or speech must be disguised or distorted. There must be no images of the parents' birth children, Chloe and Rachel, or any image which might identify where the parents live or work. The parents must not take part in any live broadcast. All of this is necessary and proportionate in order to guard against the risk of Katie herself being identified.

The request for Declarations

24. I turn, finally, to the third issue raised by the parents and that is their request for a Declaration that it shall not be a contempt of court to publish the following information:

i their reflections and feelings on the material set out in the judgments in this case that have been published on Bailii and in particular their experiences of adoptive parenting and being part of a family with a child with RAD including the implications for the adoptive siblings of that child and for wider family members;

ii their contention that better outcomes might have been possible in the case of Katie including consideration of all aspects from the availability of respite care, the accuracy of social care records (including Data Protection Act implications) and value for money;

iii their contentions about the need for greater recognition of reactive attachment disorder, treatment options and support for the families involved from social services;

iv their relationship with Coventry City Council and their experience of dealing with that local authority since they adopted Katie and in particular their contention that the local authority's failure to accept and follow expert advice regarding RAD and the treatment of it has led to an outcome for Katie where she is now at much greater risk of serious harm; and

v their views about the secrecy order and the ex parte order forbidding the parties from speaking to the media and the subsequent variation of those orders.

In discussing these issues with the media the parents wish to be able to name Jane Dunne (a social work Team Manager), Andy Waugh (Jane Dunne's manager), Andy Pepper (Deputy Director of Social Services), Colin Green (at the relevant time the Director of Children's Services) and Bob Dhammi (the Independent Reviewing Officer). Only Mr Pepper was referred to by name in the judgment of 27 July 2012.

25. The parents' application raises two issues. Firstly, does the combined effect of the rubric and s.12 Administration of Justice Act 1960 prevent the parents from discussing these issues with the media? Secondly, if it does, should the court give the parents permission to discuss those issues?
26. The application for a Declaration is opposed both by the local authority and by the guardian.

Submissions

27. On behalf of the parents, Mr Downs submits that it is uncertain to what extent the rubric and s.12 permit them to discuss the issues they wish to discuss. Given the huge scope of the investigation that was undertaken in the course of the care proceedings it would be virtually impossible for the parents to discuss those matters without disclosing information that was obtained in the course of information-gathering for the purpose of those proceedings. The parents are law-abiding people. They seek the guidance of the Court as to what they can and cannot say.
28. The parents' position is that if they are not able to discuss those issues then any discussions they may have with the media would be sterile. They would effectively be gagged, unable to discuss matters that were not mentioned in the published judgments. FPR 2010 rule 12.73(1)(b) gives the court power to grant permission to the parents to discuss the matters they wish to discuss. It is both reasonable and proportionate for the court to grant a Declaration permitting them to do so.
29. Miss Moseley says that the local authority is concerned that the Declaration sought by the parents "may be used by them to oust the effect of s.12". The five areas in respect of which the parents seek a Declaration are, she submits, "broad and potentially wide reaching". It is not possible or safe to agree that anything said under those five headings would not fall foul of s.12. Underlying all of this is the local authority's concern about the risk that the issues the parents wish to discuss with the media may lead to the identification of Katie.
30. The guardian's position is that what the parents are seeking, in effect, is not simply a Declaration but advice from the Court as to the steps they are or are not able to take in their discussions with the media. Miss Meachin submits that it is exceedingly difficult to see how the Court can be put in this position when the Court does not know the words that will be used by the parents or the context in which they will be used. The better course is that there should be no further dilution of the effect of s.12. The parents "should be governed as the other parties are" by s.12. They must act accordingly, mindful of the limits imposed by that section.

The law: (i) context

31. The scope of the transparency imperative is wide. Not only is there an imperative to publish more of the judgments given in the family court (see, for example, Re J (A Child) [2013] EWHC 2694 (Fam) to which I referred earlier), there is also an increasing trend in favour of identifying some of the principal participants. In Re K (A Child: Wardship: Publicity) [2013] EWHC B11 (Fam) I noted that local authorities involved in care cases are increasingly being identified (see paras 44 and 45). There is a similar trend with respect to the identification of social workers, police officers, treating clinicians and expert witnesses (by way of illustration see, for example, Re W (Care Proceedings: Witness Anonymity) [2003] 1 FLR 329, BBC v Rochdale Metropolitan Borough Council [2007] 1 FLR 101, BBC v Cafcass Legal and others [2007] 2 FLR 765, A v Ward [2010] 1 FLR 1497 and Re X, Y and Z (Expert Witness) [2011] 2 FLR 1437). There has also been judicial encouragement to authorise the publication, suitably anonymised, of expert evidence put before the court. In, Re X, Y and Z (Expert Witness) Sir Nicholas Wall P said that he would,

'[94] …like to see a practice develop in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.'

In parenthesis, it is appropriate to note that that practice has not yet developed as the previous President had hoped.

The law: (ii) the rubric

32. The status of the rubric has never been definitively determined by the court. In Re B: X Council v B [2008] 1 FLR 482, Munby J said that

'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.'

I proceed on the same assumption.

33. As for the ambit of the protection afforded by the rubric, guidance can be found in Re B, X Council v B (No 2), to which I referred earlier, and also in A London Borough v RB and MF [2011] EWHC 3017.
34. In Re B, Munby J said (para 13) that,

'There is nothing to prevent…[the parents] making whatever use they wish of my judgment in the anonymous form in which I gave leave for it to be reported.'

35. In A London Borough v RB and MF Munby LJ (as he then was) explained that (para.) 16:

'The rubric is in two parts and serves two distinct functions. The first part ("The judge hereby gives leave for it to be reported") has the effect, as it were, of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part ("The judgment is being distributed on the strict understanding that …") makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric. This is merely an application of a familiar principle which one comes across in many legal contexts and which finds expression in such aphorisms as that you cannot take the benefit without accepting the burden, that you cannot approbate and reprobate and that if a thing comes with conditions attached you take it subject to those conditions.'

The law: the scope of s.12

36. The question whether there has been compliance with the conditions set out in the second part of the rubric raises the question: what does s.12 permit and what does it prohibit?
37. The scope of s.12 was considered by Munby J in Re B (A Child)(Disclosure) [2004] 2 FLR 142. It is appropriate to set out his analysis in full:

'The law: section 12 – summary

81. Since it is apparent that there is still widespread misunderstanding as to the precise ambit of section 12 it may be helpful if I attempt to summarise the learning. In doing so I wish to emphasise that what follows is not to be treated as if it were a statutory formulation – it is not – nor as a substitute for applying the words of section 12 itself. Moreover, any attempt to summarise an extensive and subtle jurisprudence will inevitably suffer from the inherent difficulties and defects of the exercise. There is no substitute for a careful study of the reported cases. That said, I hope that what follows may provide some practical assistance to those, unfamiliar with all the nuances of the jurisprudence, who may lack the time or opportunity to study the case-law.

82. For present purposes the relevant principles can, I think, be summarised as follows:

i) Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of prohibiting the publication of:

'information relating to proceedings before any court sitting in private … where the proceedings (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the … upbringing of a minor.'

ii) Subject only to proof of knowledge that the proceedings in question are of the type referred to in section 12(1)(a), the publication of such information is a contempt of court.

iii) There is a "publication" for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.

iv) Specifically, there is a "publication" for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official. The Minister of State for Children is not a child protection professional. Disclosure to the Minister of State cannot therefore be justified on the footing of the exception to the general principle.

v) Section 12 does not of itself prohibit the publication of:

a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing;

b) the name, address or photograph of such a child;

c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings;

d) the date, time or place of a past or future hearing of such proceedings;

e) the nature of the dispute in such proceedings;

f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place;

g) the name, address or photograph of the witnesses who have given evidence in such proceedings;

h) the party on whose behalf such a witness has given evidence; and

i) the text or summary of the whole or part of any order made in such proceedings.

vi) Section 12 prohibits the publication of:

a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.

These prohibitions apply whether or not the information or the document being published has been anonymised…

ix) This is all subject to any specific injunction or other order that a court of competent jurisdiction may have made in any particular case.

38. In A v Ward [2010] 1 FLR 1497, having reaffirmed the analysis he had set out in Re B (A Child)(Disclosure) Munby LJ identified two additional issues:

80. The present case in fact raises two critical issues which I did not have to consider in Re B and which are accordingly not considered in that summary:

i) The first is whether section 12 applies not merely to the various types of documents which I referred to in Re B but also (and, if so, to what extent) to the information contained in such documents.

ii) The second is whether section 12 applies not merely to documents prepared for the purpose of the proceedings but also to documents which, although put on the court file (for example by being attached as exhibits or annexures to a witness statement), have not themselves been prepared for the purpose of the proceedings.

39. After a detailed analysis of the relevant case law, Munby LJ came to the following conclusions:

112. Where, then, is the line to be drawn? The key is provided, of course, by the statutory principle, reproducing the common law principle to be found in Martindale, that what is protected, what cannot be published without committing a contempt of court, is "information relating to [the] proceedings". And from the various authorities I have been referred to one can, I think, draw the following further conclusions about what is and what is not included within the statutory prohibition:

i) "Information relating to [the] proceedings" includes:

a) documents prepared for the purpose of the proceedings; and

b) information, even if not reduced to writing, which has emerged during the course of information gathering for the purpose of proceedings already on foot.

ii) In contrast, "information relating to [the] proceedings" does not include:

a) documents (or the information contained in documents) not prepared for the purpose of the proceedings, even if the documents are lodged with the court or referred to in or annexed to a witness statement or report; or

b) information (even if contained in documents falling within paragraph (i)(a)) which does not fall within paragraph (i)(b);

unless the document or information is published in such a way as to link it with the proceedings so that it can sensibly be said that what is published is "information relating to [the] proceedings".

113. Put shortly, it is not a breach of section 12 to publish a fact about a child, even if that fact is contained in documents filed in the proceedings, if what is published makes no reference to the proceedings at all. After all, as Lord Denning MR said in In re F, it is not a contempt to publish information about the child, only to publish "information relating to the proceedings in court". Or, as Scarman LJ put it, "what is protected from publication is the proceedings of the court".

114. In other words one has to distinguish between, on the one hand, the mere publication of a fact (fact X) and, on the other hand, the publication of fact X in the context of an account of the proceedings, or the publication of the fact (fact Y) that fact X was referred to in the proceedings or in documents filed in the proceedings. The publication of fact X may not be a breach of section 12; the publication of fact Y will be a breach of section 12 even if the publication of fact X alone is not.

Discussion

40. In Re B, C and D (By the Children's Guardian) [2010] 1 FLR 1708, to which I referred earlier, Holman J made the point that,

'[18] The last decade has seen a considerable number of reported cases at every level of higher court upon the interplay between freedom of expression and the need to protect the rights and welfare of children and the families with whom they live. Several reported judgments themselves refer to 20 or more earlier authorities. For busy first instance judges operating at the coal face in cases such as this, there has to be a simpler approach and process.'

41. A similar point was made by in a paper by Munby LJ, Lost opportunities: law reform and transparency in the family courts [2010] CFLQ 273. He refers (p.282) to 'the unacceptable complexity it might be thought…of an area of law which ought to be clear and relatively simple'. Under the heading 'Where the law went wrong' he says (p.275) that:

We are here in an area regulated in part by statute law, in part by the common law and in part by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The statute law is a mosaic of ill-fitting pieces without any discernible overall objective. And the judge-made law is complex. There is a rich and subtle jurisprudence expounding the meaning and effect of section 12 of the 1960 Act and another rich and subtle jurisprudence explaining the circumstances in which the court can or should either relax or increase the automatic restrictions. And there is a further body of rich and subtle jurisprudence identifying the various Convention interests which, typically, are engaged in such cases and explaining how they are to be balanced. Though rich and subtle, this jurisprudence is not easy either to access or to understand, unless one happens to be steeped in it – most family lawyers are not – or one has the time and the inclination to undertake what may be quite time-consuming research.

The consequences are hardly acceptable. There are few such well-tilled areas of the law which have been so bedevilled by myths, misunderstandings and, indeed, plain errors on the part of lawyers. Thirty years of litigation have exposed many professional beliefs and assumptions for the myths and errors they always were, but it would be unwise to assume that the process is yet complete. There are still people who ought to know better, asserting that in this, as in other contexts, the child's interests are paramount. And if the lawyers have this difficulty, how is the layman – the parent, for example, caught up in the care system who wants to talk about their case, perhaps to friends and relatives, perhaps to the media – supposed to navigate the treacherous waters of the law of contempt?'

42. Against that background I am not unsympathetic to the parents' concern to know what they can and cannot say to the media. However, I also accept the point made by Miss Meachin that since the court does not know the words the parents will use or the context in which they will be used it is difficult for the court to define in clear terms the scope of any further relaxation of the restrictions imposed by s.12. Any relaxation must be clear and specific. It cannot amount to a blank cheque.
43. The rubric set out on the front pages of my earlier published judgments already provides some relaxation of the restrictions imposed by s.12. The rubric set out on the front sheet of the published judgment of 27 July 2012 is 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."

Although I had named the local authority as Coventry City Council, at a later hearing I was told that there was uncertainty about whether that rubric permitted further publication of the identification of Coventry City Council. For the sake of clarity, in my published judgment of 25 July 2013 I amended the rubric to read:

"This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and Coventry City Council (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 child and the adult members of her family must be strictly preserved."

44. The parents now wish to discuss, firstly, their reflections and feelings on the material set out in the judgments in this case that have been published on Bailii and in particular their experiences of adoptive parenting and being part of a family with a child with RAD including the implications for the adoptive siblings of that child and for wider family members.
45. In my judgment, the parents do not require any further relaxation of the restrictions imposed by s.12 in order to discuss these matters. There is already sufficient factual information in the public domain to enable the parents to have a meaningful discussion with the media about these matters.
46. Secondly, the parents wish to discuss their contention that better outcomes might have been possible in Katie's case including consideration of all aspects from the availability of respite care, the accuracy of social care records (including Data Protection Act implications) and value for money.
47. Again, I cannot see that any further relaxation of the restrictions imposed by s.12 is necessary in order for the parents to be able to engage in a meaningful discussion about those issues. The published judgments already contain references to social care records and to the issue of respite care. It was neither necessary nor appropriate that the published judgments should have contained even more detail concerning those issues. In so far as the parents may wish to discuss publicly any records or documents relating to these issues which are not already referred to in the published judgments they should identify clearly which documents they wish to refer to, why they say it is necessary for them to be able to do so and why they say it would be proportionate to relax the restrictions even further in order to enable them to do so.
48. Thirdly, the parents wish to discuss publicly their contentions about the need for greater recognition of reactive attachment disorder, treatment options and support for the families involved from social services.
49. Once again, I cannot see that it is necessary to relax the s.12 restrictions any further in order to enable the parents to discuss their contentions publicly and in a meaningful way. I am in no doubt that there is already sufficient information in the public domain to enable them to discuss this issue meaningfully.
50. Fourthly, the parents wish to be able to discuss publicly their relationship with Coventry City Council and their experience of dealing with the local authority since they adopted Katie and in particular their contention that the local authority's failure to accept and follow expert advice regarding RAD and the treatment of it has led to an outcome for Katie where she is now at much greater risk of serious harm. It is in this context that the parents also seek permission to name Jane Dunne (a social work Team Manager), Andy Waugh (Jane Dunne's manager), Andy Pepper (Deputy Director of Social Services), Colin Green (at the relevant time the Director of Children's Services) and Bob Dhammi (the Independent Reviewing Officer).
51. I have already referred to the increasing trend in favour of identifying some of the principal participants involved in care proceedings. In light of the authorities to which I have referred I can see no reason to refuse the parents' request for permission to identify those professionals in their discussions with the media. However, that permission is subject to the qualifications that they may only name those individuals in the context of discussing the factual information already in the public domain.
52. Fifthly, the parents wish to be able to discuss with the media their views about the secrecy order (referred to in my published judgment of 27 July 2012) and the ex parte order forbidding the parties from speaking to the media (referred to in my published judgment of 25 July 2013) and the subsequent variation of those orders.
53. The circumstances surrounding both of those orders are set out in sufficient detail in those published judgments to enable the parents to be able to discuss with the media their views about those orders. So far as this issue is concerned, in my judgment further relaxation of the restrictions imposed by s.12 is neither necessary nor appropriate.

Summary

54. I give leave for an anonymised version of my judgment of 19 February 2013 to be published.
55. I give leave to the parents to identify themselves as 'MG and FG the parents of Katie' in any discussions with the media.
56. I refuse the parents' application for a Declaration save to the extent that I shall permit them to refer by names to Jane Dunne, Andy Waugh, Andy Pepper, Colin Green and Bob Dhammi.
57. I invite counsel to collaborate in drafting an order to give effect to this judgment.