England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		11th April 2014

MR JUSTICE HOLMAN:

1. I have heard this case throughout today in public and am now giving this judgment in public. It is a discrete judgment on a discrete point during the course of a directions hearing which is essentially concerned with a range of other points. These proceedings concern seven children. The five eldest have for some time been the subject of care orders. The two youngest have for some time been the subject of placement orders. It is plain that for a long time the proceedings and issues surrounding these children and their parents have been the subject of considerable public interest. That is obvious from the fact that as long ago as the 8^th July 2010 Baron J made a reporting restriction order in relation to them.
2. The last significant substantive hearing was a long hearing before Charles J in April and May 2012, which culminated in his judgment of the 17^th May 2012. It appears that at that time there were outstanding criminal proceedings concerning the parents of the children. Obviously, when findings in family proceedings precede some criminal trial that raises the same or overlapping issues, it is extremely important in order to protect the integrity of the forthcoming trial that the public (which might therefore include potential jurors) are not aware of the findings already made by the judge in the family proceedings. In the last section of his judgment dated the 17^th May 2012, Charles J discussed the issue of "Publication of this judgment" in a very thoughtful passage, if I may respectfully say so. His conclusion at paragraph 178 was that:

"Having regard to the points under this heading, I shall make a direction that after verdicts in the criminal proceedings against the parents:

(i) This judgment can be reported,

(ii) After anonymisation, all the judgments in this case can be treated as public documents but can be said to relate to this family and thus to the family named in other publications,

unless, before that date, an application is made that this direction should not be made."

3. Thus, as he parted from this case, Charles J was himself anticipating that judgments could be published in such a way that they "can be said to relate to this family". However, there was then an application before Bodey J on the 20^th July 2012 as a result of which he directed that a sub-paragraph (h) should be added to paragraph 7 of the underlying reporting restriction order that had been made by Baron J on the 8^th July 2010. The effect of the added sub-paragraph (h) is that all judgments had to be "anonymised to the satisfaction of the local authority and the children's guardian as to the identity of the applicant [viz: the London Borough of Haringey], all family members and all witnesses and as to any other details which might lead to the identification of the children (or their placements) as being the children the subject of these proceedings". I do not myself know in what form precisely the major judgment of Charles J of the 17^th May 2012 has subsequently appeared in Bailii or in law reports.
4. Time then moved on and this case came before me (I believe for the first time) on the 19^th March 2014. On that date I gave an ex tempore judgment which contains an account of developments between the time of the hearing in front of Charles J in May 2012 and the recent time. The essence of the applications currently before the court is for permission to change both the surname and the forenames of the two youngest children so as to enable them to be absorbed into long-term adoptive placements with total anonymity. Because that anonymity would risk being breached by any continuing direct contact between the two youngest and the five eldest children, there is a linked application for permission to cease altogether any direct contact between the five eldest and the two youngest children. So the express purpose of, and suggested justification for, those very significant applications is to enable the two youngest children to acquire complete anonymity and new identities in society. The reason for that is that it is said (and indeed appears to be the case) that there has been, and continues to be, very considerable public interest in this case and this family, in particular upon a range of internet websites. Indeed, this morning, as a result of reading a reference in the position statement prepared for today by Miss Sarah Morgan QC, who appears on behalf of the local authority, I myself did a very basic Google trawl on the internet, feeding in only the names or words "Musa" and "Haringey", and I at once saw a considerable number of different websites discussing in various ways, and expressing a range of points of view about, these children and their parents and the whole history of the family and the criminal proceedings.
5. The public interest in this family does not end there. At the last hearing before me there appeared, as I described in paragraphs 31 to 33 of my judgment, Mr F.N. Enya, Senior Counsel (Consular, Education and Welfare) at the Nigeria High Commission here in London. I mention that Mr Enya is again in court today. Mr Enya told me at the March hearing, as I recorded in paragraph 32 of my judgment, that this case has indeed been debated on the floor of the Nigerian National Assembly, that is, their Parliament. Further, it has been the subject of diplomatic exchanges between the Nigeria High Commission and the Foreign & Commonwealth Office here in London. So the notoriety, if I can use that word, of this case concerning these children has indeed spread to the Parliament itself of Nigeria of which all these children are citizens. Further, there has been placed before me today, and circulated of course to all other parties, a letter dated the 9^th April 2014 from Mr Ahmed Inusa, Minister/Head of Chancery for the Nigeria High Commissioner here in London. It refers to why the Nigeria High Commission wished to be present and represented here today, which I readily agreed to. The letter says, amongst other things:

"As this case has generated a lot of interest both in Nigeria and in the Nigerian community in the UK, the Nigeria High Commission respectfully requests the court to grant permission to be present in court to observe the proceedings and to represent the interests of the Nigerian community."

A little further on the letter says:

"The reasons the Mission is making the request are as follows … To reassure the Nigerian community in the UK that the Mission has taken this matter very seriously as required by them …"

If that letter is at all sincere (and I do not have the slightest reason to doubt its sincerity) it indicates and evidences that amongst the Nigerian community here in the United Kingdom there is " a lot of interest" in this case, and that that community requires to be reassured that this matter has been taken very seriously.

6. I did not of course have that letter of the 9^th April 2014 at the time that I made the decision, when I placed the transcript of my judgment in this case upon Bailii, to include the surname of the family, namely "Musa", in the title on the cover page of the judgment as so published. I had sat in public throughout. I placed my judgment upon Bailii pursuant to the recent Practice Direction of the President of the Family Division with regard to transparency and the publication of judgments. I had been scrupulously careful when I delivered the judgment that day, and also when I corrected it, not anywhere to mention the forenames of any of the children (although one of the applications concerns the issue of forenames), nor their dates of birth, nor or course any addresses. I very deliberately made plain on the face of the cover note of the judgment that the judgment does relate to this family of Musa and that the relevant local authority are the London Borough of Haringey. I did so very deliberately, precisely because I was aware, for it was of the essence of the application, that this is a case that has attracted, and continues to attract, considerable public notoriety and public debate. I do not have the slightest idea of the rights and wrongs of any of these matters. I have not in any way read the detailed content of any of the many websites. I merely know, as is indeed the case of the London Borough of Haringey, that this family is notorious and the subject of public debate both here and in Nigeria.
7. It seemed to me, and seems to me, that when a case, and the family the subject of a case, are already the subject of public notoriety and debate, it is important in the interests of open and public justice that the public should be aware, if they are interested, that some further judgment does indeed relate to that family. Frankly, there is probably enough information inevitably contained within the judgment that an informed reader might guess that it related to this family even if the title had said the London Borough of X and referred to the family as Y. But, to my mind, it runs counter to openness and transparency in family proceedings to conceal or disguise the family to which a judgment relates in circumstances such as this. So it was my very deliberate decision that the words Musa and the London Borough of Haringey should appear in the title to the judgment.
8. On Monday, the 7^th April 2014 at 16:54 my clerk (on my behalf) received an email from Miss Sarah Morgan QC on behalf of the local authority. It reads as follows:

"I wonder whether his Lordship would give some further thought to the form in which his judgment from the 19^th March is on Bailii? My instructing solicitor contacted me today because she was startled, having received Family Law Week, to see it appear by name in the headnote rather than by initials. Not only did his Lordship's own judgment contain reference to s.39 CYPA but there is in existence a reporting restriction order made by Charles J in the original proceedings."

Pausing there, so far as I am aware no one had ever told me, nor was I aware, of the existence of the previous reporting restriction orders until that email from Miss Morgan. I instructed my clerk to reply on my behalf the following morning by an email dated Tuesday, the 8^th April 2014 and timed at 09:43 in the morning. It was sent to Miss Morgan in reply to hers to me.

"The only express identifying feature in the Bailii report is the surname 'Musa' in the title. Mr Justice Holman deliberately did not anonymise that name (e.g. to M) as it is of the essence of the applications he was dealing with that there has already been considerable web based and other publicity into the family and a 'campaign'. It is therefore relevant that the public can know that the judgment relates to the family about whom they may already have read the 'campaign'. The judgment deliberately does not name the individual children, or their foster families, nor disclose their whereabouts."

So that was sent early on Tuesday morning to Miss Morgan. This morning, Friday, the 11^th April 2014, I received an "Updating position statement on behalf of the applicant local authority" signed by Miss Morgan and dated today. In that document she, as she was perfectly entitled to do, raised for reconsideration by me the question of whether or not the name "Musa" should appear in the heading of the judgment placed on Bailii. She invited me today to reconsider the position. I was surprised to read the last sentence in paragraph 8 of her document in which she wrote:

"It appears that for the time being at least the report is no longer available on Bailii."

That indeed appears to be the case for I then, this morning, entered the Bailii website and, sure enough, the judgment no longer appears there. I have inquired from Miss Morgan how that came about, particularly in the light of my deliberately expressed and reasoned reply as long ago as last Tuesday to her email of last Monday. She told me that there had been some communication between the legal department of the London Borough Haringey and Bailii as a result of which the administrator at Bailii had removed the entire judgment from that website. I inquired when the communication was made to Bailii and whether it was made before or after the legal department of the London Borough of Haringey had been made aware by Miss Morgan of my email of the 8^th April 2014. She told me that the London Borough of Haringey communicated with Bailii after they had knowledge of that email and my decision when the matter had been raised with me for my reconsideration. I have been told, and I am prepared to accept, that to some extent that unfortunate timing results from somebody taking some action very recently as a result of some instruction given to them rather earlier.

9. Be that as it may, it has had the effect that in direct defiance, frankly, of my reasoned decision on reconsideration, the London Borough of Haringey have gone completely behind my back to Bailii and caused Bailii to remove from the public website the judgment which I, the judge, had deliberately placed on that website pursuant to the Practice Direction of the President of the Family Division. I wish to make absolutely clear at this juncture that I do not make, imply, or have, the slightest criticism whatsoever of the administrator of Bailii. He is very far removed from the fray. I dare say that if he was sent a copy of the reporting restriction order he appropriately thought that the safest course for the time being was to remove the judgment. But I have to say that it is a matter of the utmost concern that a party, whether the London Borough of Haringey or any other party, is able to manipulate the public judicial website in that way.
10. The question now arises whether my judgment of the 19^th March 2014 should be reinstated on Bailii in the form in which it was first published there, namely including in the title the name of the local authority, the London Borough of Haringey, and the surname of this family, Musa. On behalf of the local authority, Miss Morgan has very strongly contended that it should not. She refers of course to the long existence of the reporting restriction order and says:

"There are, as the court is well aware, real anxieties about the identification of the children with whom the court is concerned."

She then makes express reference to some of the website material, one of which is dated as recently as the 3^rd April 2014.

11. On behalf of the children's mother, Miss Jessica Atkinson made no submissions on this issue. The children's father is neither present nor represented. On behalf of the five eldest children, Ms. Melanie Carew of CAFCASS (the guardian herself is unfortunately not present) submitted, in balanced and attractive submissions, that it was contrary to the best interests of those five children that their surname should appear on the cover of a public judgment in this way. She submitted, in effect, that it is extremely important that they should be as undisturbed as possible by the storm of notoriety that surrounds them. On behalf of the two youngest children, Miss Jonquil Houghton on behalf of their guardian, Ms. Trudy Jordan of CAFCASS, who is present, preferred to make no submissions.
12. It seems to me that this situation in fact engages a number of conflicting interests and considerations. The welfare of the children concerned is clearly very important and uppermost in my mind, though not necessarily paramount. Of course children should always be screened, so far as practicably possible, from the embarrassment and upset of things being said about them publicly, but it is not always practically possible. The fact of the matter is, as the websites demonstrate, and the questions in the Nigerian Parliament demonstrate, and the interest in this case of the Nigerian community in the United Kingdom demonstrates, there is already notoriety surrounding these children and this case. That notoriety will not go away. Few things stoke notoriety, "campaigns" and conspiracy type theories more than courts operating in private and behind a wall of apparent secrecy. It merely fans suspicion and the sense that things have been done by, and in, the courts which are wrong and which must be barred from public scrutiny.
13. That consideration apart, our society, in any event, places a high value on the right of freedom of expression which is guaranteed by the European Convention on Human Rights and given particular protections by section 12 of the Human Rights Act 1998. So a balance has to be struck. In my view, at this stage of this case the balance clearly falls down in favour of the public being entitled to know, at least in outline, the current issues that are before the court in relation to these children. It goes without saying that nothing whatsoever should be published which might in any way reveal to the public the whereabouts of the children and, above all, the identity of the family with whom the sixth child has already been placed and the seventh child is proposed to be placed. But meantime, whilst the court debates and decides issues such as whether children should be given totally new names and identities, and whether the contact between a sibling group, which Charles J thought was so important that he expressly ordered that there must be continuing direct contact even after placement, should now be ended, the public are entitled to be aware of the debate, the content of the debate and the decision and the family to which it relates. For those reasons, I have now already made an order, the effect of which is to vary para.(h) added by Bodey J in July 2012 to now provide that the name or the identity of the applicants, that is, the London Borough of Haringey, and the surname only of the children, may appear in the title on the cover of any judgment which a judge deliberately places upon Bailii in that form.
14. I will reinstate immediately my judgment of the 19^th March 2014 on Bailii in that form. This judgment which I have just given will be transcribed at the expense of public funds. It will also be placed upon Bailii and it will show in the title that these proceedings are the London Borough of Haringey v. Musa.

LATER

15. In continuation of the judgment which I gave earlier this afternoon, I now turn from the issue of transparency to the substance of the present applications and the directions that I am constrained to give today. It will be recalled from paragraphs 5 to 8 of my judgment of the 19^th March 2014 that following the long hearing before him Charles J made an order on the 8^th May 2012 which provided very specifically and deliberately that:

"Until further order of the court, the applicant [viz: the London Borough of Haringey] and any persons with whom [the youngest two children] are placed shall allow [the youngest two children] to have reasonable direct contact with their siblings …"

The five eldest children are then named. In passages that I myself cited in that part of my recent judgment, Charles J explained that "high priority" is required to be given to inter-sibling contact. He rejected a suggestion by the local authority and the then guardian that contact could be the subject of a mere "recital" to his order and, for the reasons that he gave, made an express, crystal-clear order of the court that until further order of the court direct contact must happen. His order expressly bound "any persons with whom [the youngest two children] are placed". Accordingly, it is crystal-clear from the terms of the order as well as the explanations in his judgment that Charles J had it in mind that until further order of the court inter-sibling direct contact should take place, not only before, but also after placement of the children with a view to adoption. Further, as he explained and made clear, the local authority had to identify prospective adopters who would feel willing and able to support and cooperate with direct inter-sibling contact.

16. As I understand it, following that order inter-sibling contact between all seven children did indeed take place at approximately monthly intervals. It is right to say that the seventh and youngest child, being so young, was not always involved, but certainly the sixth child had regular contact with all her elder siblings; and the thrust of the evidence of the social worker, Miss Siobhan McKee, was and is to the effect that they all enjoyed it and gained benefit from it. I refer again to the passages quoted by me in paragraphs 14 and 15 of my earlier judgment.
17. I mention without, in this judgment, in any way labouring the point, that the evidence before me at the last hearing was essentially that statement of Miss McKee dated the 10^th February 2014. At paragraph 51 she stated as follows:

"Contact currently takes place between [the sixth child] and her older siblings on a monthly basis. Occasionally, [the seventh child] joins this contact."

In that statement, and indeed, so far as I recall, in anything that was told to me at the last hearing, there was nothing at all to alert me to the fact that actually no further contact had taken place since the 14^th December 2013. So it was that I said in paragraph 9 of my last ex tempore judgment, without any subsequent correction in the court room by or on behalf of the local authority:

"I understand that there is indeed regular, though not necessarily frequent, direct face-to-face contact involving all seven children together. It appears that all the children enjoy and gain support and benefit from that contact."

I could not, and would not, have expressed myself in those unqualified terms if I had been alerted in any way to the fact that the contact had been suspended, let alone terminated. Further, in that part of my judgment in which I explained why I considered it was imperative that guardians should be appointed to represent on the one hand the five eldest children and on the other hand the two younger children, I expressly said, at paragraph 27:

"As far as the guardian for the five eldest children is concerned, he or she will be approaching the case from an absolute standing start. As I have already mentioned, those children currently live in no less than three different foster homes. So the whole process of both guardians seeing the children concerned, having appropriate conversations with them (in particular in relation to the elder of the eldest five children), and probably observing contact between all seven children so as to be able to assess its quality and value to the children, will all inevitably take time."

I could not, and would not, have expressed that passage in that way if I had had the slightest appreciation that in fact no contact was by then currently taking place nor contemplated to take place between the five eldest and the two younger children. But, as I say, even at the conclusion of the judgment nothing was said in court to alert me to that fact.

18. So, as I parted from this case in March and made arrangements for two guardians to act for the respective groups of children, it was, frankly, uppermost in my mind that the primary purpose of appointing those guardians, particularly in relation to the eldest children, was so that the guardian could have conversations with them and elicit their wishes and feelings with regard to contact. Further, although I used the word "probably" regarding observing contact, I certainly envisaged that almost inevitably there would be an observation at a contact. It was precisely in order to discuss these issues and have an understanding as to the arrangements and timetable that I then set up today's hearing.
19. During the course of this hearing this morning, whilst Miss Morgan was addressing me on behalf of the local authority, I asked her about the current frequency of contact. She said it was monthly, but when I asked when there had last been contact between the two groups of children she said, on instructions, that it was the 14^th December 2013. I expressly asked Miss Morgan whether there had been any "farewell" contact and she said that there had not. That of course clearly indicates that at that moment the state of mind and understanding of the Queen's Counsel instructed by and on behalf of the local authority was that, although contact may have been paused, it certainly had not in any sense been terminated or the subject of a farewell or goodbye event. Shortly after that, the social worker handed her a note as a result of which Miss Morgan corrected what she had said earlier (in the utmost good faith), and told me that in fact the contact on the 14^th December 2012 had been expressly and deliberately a "goodbye contact". For these purposes, there is of course no distinction whatsoever between the concept of a "goodbye" or a "farewell" contact. Either way, it is expressive of an enormously sad but apparently final occasion upon which for the last time related children meet and say a farewell to each other, at any rate for their childhoods.
20. As I understand it, that revelation came as equally astonishing to the representatives in court of the mother, and indeed to the representatives of the two guardians. I understand that in discussion outside the court room before we first assembled in court today the advocates for the guardians had learned that there had not been any contact since the 14^th December 2013, but they did not appreciate until the note was passed in court this morning, that that contact had been set up as being of a "goodbye" character. Later today, Ms. Jonquil Houghton, who appears on behalf of the guardian for the two youngest children, Ms. Trudy Jordan, told me that Ms. Jordan "is extremely surprised and shocked to hear that it was a farewell contact". I have to say that I share the surprise and shock of Ms. Jordan. If the local authority did indeed reach a decision on or before the 14^th December 2012 that that occasion should be a "goodbye" contact, that was tantamount to reaching their own decision firmly and permanently to terminate all contact between the two groups of children. However, the subsisting order of this court by Charles J, which I have quoted, positively ordered not only the local authority, but also any persons with whom the two youngest children were placed, to allow direct contact. The gravity of the situation is compounded by the fact that it was not even until the 16^th January 2014, namely a month later, that the local authority even issued their present application to the court in which they seek permission to vary the order of Charles J so as to cease to be under a duty to promote the contact.
21. Obviously the revelation of these matters came as a complete surprise also to Miss Morgan during the course of today. She has reasonably asked for an opportunity for the local authority to file evidence explaining when, why and by whom this fateful decision was taken, and I will naturally give her that opportunity. I will deal further at a hearing next week with my final assessment of the conduct of the local authority in relation to this termination of contact when I see what they have to say.
22. For the purposes of today, and however grave the conduct of the local authority may or may not be, I am constrained to accept the facts as I am now told that they currently are. The current situation is that the sixth child was placed during January with a prospective adoptive family. It is of course of the utmost importance that that placement should not be destabilised. Further, the local authority currently hope and intend that the seventh child will also be placed with that family once the sixth child is well settled in. That will have the great advantage for those two children that for the first time ever they are actually united together in a single family.
23. So I must tread with the utmost care and delicacy in the circumstances with which I am now confronted today. Realistically, there has now been a four month break in contact. It appears that the message that has been deliberately and directly communicated to the five eldest children is that the December contact was the last and that they will never see their two younger siblings again, at any rate during their respective childhoods. It may not be possible now to unscramble that egg that the local authority have created. Certainly it could potentially be extremely destabilising for all or any of these children, but especially the sixth child, if between now and the substantive hearing there was a court imposed resumption of direct contact. The implications go further than that. As I have explained, my primary intention in appointing a guardian on behalf of the five eldest children was that that guardian could both observe contact and also have conversations with all, or at any rate the elder, of those children to establish their views and wishes and feelings with regard to contact. It might now be unsettling to the point of cruelty for conversations of that kind to take place, for if the guardian was now to discuss with any of those children possible future contact with the two youngest, it would raise excited expectations in them upon which the guardian might, indeed, be unable to deliver. Further, it would inevitably be extremely confusing for them that last December social workers had told them that they were saying goodbye to their siblings, and now somebody sent by the court was asking them about seeing their siblings again. Frankly, it is likely that the actions of the local authority have created a fait accompli and overridden the clear intention of Charles J in May 2012.
24. But at all events, against the background that I have now described, I cannot, as I had previously intended, direct the guardian for the eldest five children necessarily to have conversations with them about contact, and I certainly cannot direct either guardian to observe contact at this stage. All I can do is direct the guardian for the youngest two children to meet the adoptive family and discuss all these issues with them and then file and serve a report in which she reports upon them. It may of course be that the prospective adopters will indicate that they are not averse to some resumption and continuation of some inter-sibling direct contact. When that guardian does report, the guardian for the five eldest children must of course consider the report. I must leave it to her discretion to decide whether, in the light of that report, she feels it would or may be damaging to the elder children if she spoke to any of them and unfairly raised any expectation that contact might resume. If, however, she considers that she can speak to all or any of those children without causing harm to them, then she should do so. If not, she should not.
25. On that incredibly melancholy note, and with the utmost despair on my part, I draw the present hearing to a close.