Jersey Unreported Judgments

Child custody -claim of negligence against the Minister.

[2015]JRC045A

Royal Court

(Family)

24 February 2015

Advocate T. V. R. Hanson for the Plaintiffs.

Advocate L. A. Ingram for the Defendant.

judgment

the commissioner:

1.        These proceedings involve three plaintiffs, two of whom are minors, who are making a claim of negligence against the Minister for Health and Social Security for failure to protect them from child abuse and neglect during and after the 1990's.  The case had been listed to be heard in March of this year but at the request of the parties, and for good reason, the case has now been adjourned and re-listed to be heard in May. 

2.        The question arises whether there should be any restriction on publicity on this case.  It is not suggested by the parties that the coming hearing should be in private.  The question I am being asked to consider is whether the plaintiffs' identities should be protected by being kept confidential and not communicated or publicised either by word of mouth or through the media. 

3.        This matter was given some preliminary consideration at a directions hearing on 23^rd October, 2014, at which hearing I ordered that this trial and all future hearings were to be held in public, subject to reporting restrictions being observed which, until the conclusion of today's hearing, included a requirement that the plaintiffs' names and identities should not be published.  I directed that the question of what continuing reporting restrictions may be appropriate and, indeed, whether there should be a moratorium on publication of any information about the trial until the conclusion of judgment following the substantive hearing, should be considered at a date to be fixed, which has proved to be today's date.  I also directed that the local media were to be notified of the reporting restrictions hearing by the Court by means of a letter approved by the Court.  A draft was provided by the plaintiffs' Advocate and, in due course, approved by the Court which informed the media that all future hearings will be in public.  It set out the date of this hearing and informed the media that the hearing would be to consider the issues that I have already identified. 

4.        That letter was sent out to the media.  I record that no-one from the media attends either in person within the well of the Court or through any advocate. 

5.        My starting point in considering these matters is that the principle of open justice is of the utmost importance.  This was recognised by the Advocates for the parties at the hearing on 23^rd October, 2014, and led to the direction that this trial was to be heard in public, subject to the issue of reporting restrictions.  The principle of open justice and its utmost importance has long been emphasised, for example in the House of Lords in the case of Scott-v-Scott [1913] AC 417.  That important principle has been reiterated in a long line of cases which it is not necessary, for the purposes of this hearing, for me to set out.  It has been recognised, for example, by the Court of Appeal in Jersey in the case of Lewis, Christmas, Foot and Cameron-v-AG [2012] JCA 209A.  

6.        For present purposes I shall simply cite from a very recent decision of the English Court of Appeal in the case of JX MX-v-Dartford and Gravesend NHS Trust [2015] EWCA Civ 96.  In that case the Court of Appeal was dealing with a hearing for the Court to approve a proposed settlement of a claim brought on behalf of a minor for personal injuries suffered as a result of negligence.  The Court had to consider whether and to what extent the proceedings should be anonymised to protect the claimant's identity. 

7.        In the leading judgment of the Court, Moore-Bick LJ conducted a wide and helpful review of the relevant authorities in relation to the general principle of open justice and the derogations from that principle which may on occasions arise [paras. 5-19].  Of the anonymity order sought in that case, he said:-

"Such an order clearly involves a derogation from the principle of open justice; the question is whether it is necessary for the court to grant a derogation from open justice and thus from the rights of the public at large" [para. 25]. 

He went on to say:-

"It follows from the fact that the test is one of necessity that in order to be justified the derogation must be the minimum that is consistent with achieving the ultimate purpose of doing justice in the instant case.  Quite rightly, none of those who appeared before us suggested that approval hearings should generally be conducted in private.  It is accepted that sufficient protection for the claimant and her family can be achieved by a full anonymity order" [para 27]. 

In his view the court had to take into account:-

"the invasion of the family's privacy which a report of the approval hearing would involve if the claimant's identity became public" [para 28]. 

He said that:-

"In many, if not all, cases of this kind the Court will need to consider evidence of a highly personal nature relating to the claimant's injuries, current medical condition, future care needs and matters of a similar nature.  In our view that is an important matter which the court is bound to take into account when deciding whether anonymity is necessary in order to do justice to such a claimant notwithstanding the public interest which is served by the principle of open justice" [para 30]. 

8.        In that case the Court of Appeal decided that:-

"an anonymity order however (by which we mean an order prohibiting the publication of the claimant's name and address and a restriction on access by non-parties to documents in the court records) seems to us to provide a reasonable degree of protection, both against an unwarranted invasion of privacy and an interference with the right to family life and against such other risks as there may be, whether of dissipation of assets or otherwise" [para 32]. 

9.        Turning now to this case, the approach taken by the parties is that the right balance is struck here by the proceedings being heard in public but by the identities of the plaintiffs being protected from public view, which includes a reservation on the public being able to inspect the papers on the court file without leave.  There is no longer any suggestion, as had been canvassed tentatively at the October hearing, that there should be a moratorium on reporting until the case has reached its conclusion in a judgment.  Although there is agreement between the parties about it, and no-one from the media has attended to argue otherwise (having received the skeleton arguments on behalf of the plaintiffs and the draft proposed order), nevertheless I am duty bound to apply my own mind to the case [see JX MX-v-Dartford and Gravesend NHS Trust (supra) para 26].  Bearing in mind the utmost importance of open justice, I must only permit a limitation on that where it is necessary, and only to the extent that it is necessary within the ultimate purpose of doing justice. 

10.      Having considered this case very carefully I take the view that:-

(i)        It is right that the public and press should have access to the trial and (subject to the important question of the protection of the identity of the plaintiffs) to be free to report it;

(ii)       However, in the circumstances of this case, the plaintiffs must be given protection in relation to their identity. 

11.      The case is likely to involve evidence of the most private and intimate kind relating to the abuse and neglect suffered by the plaintiffs in the past, and also in relation to the ongoing and future difficulties that that abuse and neglect has caused and may cause them over the coming years.  If the plaintiffs are identified it is not difficult to see that they would be likely to find it, to say the least, highly distressing; more than that, it may well compound the substantial difficulties they already face in their lives.  In my view therefore, it is undoubtedly necessary in the circumstances of this particular case that their identities are not disclosed and that orders to that effect, as suggested by the parties, should be made. 

12.      I should not conclude this judgment without expressing my gratitude to the highly responsible attitude taken by the parties to this matter.  I shall make orders in the terms of the draft that has been prepared.  It may be helpful for future cases if I were to read out the draft order so that it can be understood. 

(i)        This order directs the principles and procedures of any reporting by the media or the public in these proceedings. 

(ii)       The overriding principles are:-

(a)       This order shall apply to all members of the public and media attending or reporting these proceedings (to include all past and future hearings);

(b)       The plaintiffs identities shall be kept confidential and shall not be communicated, disclosed or publicised by word of mouth or by newspaper, television, radio, internet, social media or other media outlet ("reporting"); and

(c)       The court file shall not be inspected other than with the permission of the court. 

(iii)      The following measures shall apply to references to the plaintiffs in any reporting;

(a)       The first plaintiff shall be referred to as the first plaintiff;

(b)       The second plaintiff shall be referred to as the second plaintiff;

(c)       The third plaintiff shall be referred to as the third plaintiff;

(d)       Individuals related to or connected with the plaintiffs (other than employees or agents of the defendant) shall be referred to by their initials;

(e)       The court may direct what abbreviation or otherwise shall apply to an individual not referred to in this order. 

(iv)      The following information related to the persons referred to in paragraph (iii) shall not be included in any reporting:-

(a)       Name;

(b)       Personal information (relating to Jersey and worldwide and including historic information) including but not limited to addresses, telephone numbers, other contact details including electronic media, dates of birth and national insurance numbers; and

(c)       Any other information from which the identities of the plaintiffs would reasonably be discerned such as the names of relatives. 

13.      That concludes my judgment. 

14.      I also order that the costs of this hearing be costs in the cause. 

Authorities

Scott-v-Scott [1913] AC 417.

Lewis, Christmas, Foot and Cameron-v-AG [2012] JCA 209A.

JX MX-v-Dartford and Gravesend NHS Trust [2015] EWCA Civ 96.