Kent County Council, Re B (A Child) v the Mother & Ors [2004] EWHC 411 (Fam)

“We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.”

“With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing. All this suggests that, for the time being, where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence, … which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed.”

“Ministers are to review as many as 5,000 civil cases of families affected over the past 15 years by Prof Meadow’s now discredited theory of Munchausen Syndrome By Proxy.”

“Mrs Hodge is likely to ask local authorities to search through their records to find all family law cases involving Meadow. … Another option being considered by Mrs Hodge is to appoint a judge to trawl through the records of each authority to identify possible miscarriages of justice, but this would prove costly.”

“The Government is not running away from this issue. I hope the families understand that these are really, really difficult decisions we have to take.”

“We will ensure not only that injustices in the criminal justice system, but that any potential injustices in care proceedings are identified and acted on. We should recognise that for women who have lost a child and then had another child taken away, prison is no penalty compared with the terrible suffering that they have endured. As we deal straight away with those in prison and those involved in criminal processes, we must bear in mind the absolute and utmost gravity of the situation facing those whose injustice is at the hands not of the criminal justice system, but of the family justice system.”

“The process of how to go about a review in family cases is now being considered. The judgment that I have quoted makes clear what is at issue, but the process of identifying cases – and the machinery that should be used to remedy miscarriages of justice – is not straightforward. Neither the Government nor the family division of the Court of Appeal, nor anyone else, are holding back in their attempts to ensure that any injustice is remedied. That is our absolute focus, but we have to determine what the best procedures are, and what the best machinery is. That is by no means straightforward, but I do not rule out any of the suggestions that the hon. Gentleman made.”

“DfES Ministers who are responsible for children at central government level, are considering the implications of this judgment for care and adoption cases. I am sure that as soon as they have reached a conclusion they will announce whether any – and, if so, what – steps need to be taken in relation to those cases. Noble Lords will know that it is not simply central government who have a responsibility in this area; indeed, if anything it is much more local authorities which have a responsibility in relation to child cases, and other cases are matters between private citizens. So, the role of central government is much more limited than in the case of prosecutions.”

“The matter has become one for local authorities which, having taken care proceedings, are under an obligation to review those orders with regularity. They are required to bring matters back to court if that is their opinion.”

“ … the responsible Ministers in the DfES are considering the implications of this judgment and what, if any, steps need to be taken. I do not wish to prejudge what they may say.”

“It has been widely reported in the media that the Attorney General’s review of criminal cases of murder, manslaughter or infanticide of an infant under two by its parent, potentially involving Sudden Infant Death Syndrome, will be extended to include civil cases. This is a misunderstanding. The Attorney General’s review is limited to criminal cases. DfES Ministers are considering the implications of the judgment for themselves. They will announce as soon as possible what, if any, steps are appropriate to be taken. Any enquiries about family cases should be directed to DfES.”

“Mother deliberately administered some unidentified infected substance to [B], thereby causing the rigors which were potentially life-threatening whilst [B] was in hospital between September 25th and 1st October 2001.”

“The conclusion of [Dr Y and Dr X] that the most likely explanation for the rigors is deliberate interference with the cannula in the absence of any medical cause.”

“Mother is undoubtedly a skilled and persistent liar, who over the years has sought to and succeeded in conning doctors, teachers and family in respect of illnesses which she claimed to be genuine but which were self-induced. She has wasted hospital resources and submitted to procedures she knew were unnecessary. Her reasons for this behaviour were given in evidence as difficulties at home in her relationship with her parents, their over-ambitious expectations for her, and her difficulties at school.”

“Mother has a history of lying and deceiving others in respect of herself over a substantial period of time.”

“I make it clear that I must and do accept as accurate and reliable all the findings made by Bracewell J, and proceed from them as a starting point. There has been no new evidence which might indicate that in any significant respect her findings were mistaken.”

“A paediatrician called as an expert witness at an initial family court hearing suggested, out of the blue, that Sheila might have deliberately injected her child with the water from a flower bowl or a lavatory. It was a claim considered ludicrous by one of the country’s leading forensic toxicologists, who provided evidence for the police in Harold Shipman’s case. He told the court it was a medical impossibility for Sheila to have done such a thing. But for the family courts – which do not require the standard of proof of a criminal court – this was not enough to save her. Sheila has had her daughter forcibly removed with little hope of appeal.”

“The … mother is most anxious to make submissions to the Secretary of State for Children that her case should be reviewed not only individually, but that it should be part of the evidence in any overall review of expert evidence in Munchausen by Proxy cases. She would wish to disclose some documents in these proceedings to the Secretary of State for Children and seeks leave for general disclosure so that the Secretary of State can disclose such documents as are permitted by the Court to third parties for purposes of an individual review or an overall review of all of the Munchausen by Proxy family cases. The [mother] also wishes to disclose documentation to the General Medical Council and has been asked to do so by 17th February 2004. I understand that consideration of [Dr Y]’s conduct is being undertaken at the behest of another party but I do not know the details. There appears to be concern about clinicians giving expert evidence without having seen either parent or child but I have no further information about this and I believe there are constrains on the GMC in disclosing more details. Further than this, the … mother feels an affinity with other families who argue that their children have been separated from them through reliance by the Court on Munchausen by Proxy experts. She would wish that the details of her case and the evidence on which it was based, so long as the child cannot be identified, be disclosed by her to other parents, legal representatives in other cases and to investigative journalists working on Munchausen by Proxy cases. In this respect, reference is made both to Sally Clark and Angela Cannings appeals. Both women were convicted of murder and imprisoned on the basis that they had killed their children. As part of the process of preparing their appeals, both women were able to obtain supporting information from other experts and interested parties and in turn provide information to assist each other. They were able to do this in the criminal jurisdiction and much information about these two women, their background and the expert evidence given was circulated in the public domain, with the important proviso that the women’s living children were not identified. The … mother seeks leave so that she, as she sees it, is able to discuss with interested parties quite openly the basis of the Munchausen by Proxy theory as it pertains to her case. The … mother plans to appeal Mrs Justice Bracewell’s Judgment and the orders made by Mr Justice Holman consequent upon Mrs Justice Bracewell’s findings. But this present application represents more than the [mother]’s own appeal. It also represents her desire to deal with what she perceives as a profound injustice suffered not just by her but by other parents. She sees this as a public interest issue and her case as one which should be considered by government ministers and their officers without delay. … She wishes to abide by the Court’s rules and to protect the anonymity of the child, but at the same time to speak openly about her case. There can of course be no review by any government representatives or indeed any investigation by journalists of the [mother]’s case without specific reference to expert evidence which gives the [mother] such concern.”

“I understand that you are representing my constituent, [the mother], in her forthcoming appeal. As you know, [mother] approached me some time ago and sought help in correcting what she described as “an injustice” against her in respect of the judgement which led to the removal into care of her daughter, [B]. I am continuing to help [mother] with her case in any way I am able and to this end it would greatly assist if there was full disclosure of information and release of all appropriate documentation pertaining to the judgement. In particular, my constituent’s chances of obtaining a fair and just conclusion to her appeal would be enhanced by the early release of [Dr Y]’s report. I am sure you will be making your own application for these documents – in doing so I would be grateful if you would bring my request for disclosure to the High Court’s attention.”

“you will see that the mother seeks leave “ … to disclose the documents listed in the schedule below, edited or anonymised appropriately so that the documents do not contain any information which may lead to the identification of the child who is the subject of the proceedings, to the General Medical Council for the purposes of pursuing her complaint against [Dr Y] and [Dr X].”

“I believe my client ‘Sheila’ who’s details are attached and who was featured in the Mail on 21 January has a case which merits review and examination. The Court of Appeal is not the best or only place to do this. We shouldn’t have to resort to the Mail! I hope you might be interested in pursuing this issue further. I would love to disclose [Dr Y]’s report to you but I can’t! or if I did, I would risk being struck off.” vii) On 26 January 2004 the Solicitor-General sent the copy of Bracewell J’s judgment she had received from Ms Sarah Harman on to the Minister of State for Children. The circumstances in which this happened have been described both by Ms Sarah Harman, in a letter to the local authority dated 11 February 2004, and by the Solicitor-General, in a letter to the local authority dated 23 February 2004. Ms Sarah Harman’s account is that: “On receipt of the transcript Ms Harriet Harman discussed the matter with Ms Sarah Harman who believed that it would be permissible to pass the judgment on to Ms Margaret Hodge, Minister for Children which was done.”

“Our client wishes the Children’s Minister, Margaret Hodge, to have a copy of Mrs Justice Bracewell’s Judgment and also [Dr Y]’s report of May 2002. If we disclose those documents to the Minister, it is likely that she will wish to disclose them to other third parties … Please could you consider both the Judgment and the report and indicate what parts of those documents need to be edited”

“I am going to make a strong presumption that [the mother] is not going to do anything that might remotely be a contempt of court. That is where I start from.”

“Although it is ultimately a matter for the courts to determine individual cases that come before them, it is right for me to give proper guidance to local authorities as to how they should proceed. I will therefore write shortly to councils with social services responsibilities to ask them to take the following action. First, I will ask them to consider those cases affected by the Attorney-General’s review. In these cases, councils should stand ready to act in the light of the outcome of that review. Secondly, within the next four weeks, councils with social services responsibilities should identify and review current case. Those are cases in which they have commenced proceedings in relation to a child and in which the court has not yet made a final order. In those cases councils should consider with their lawyers the implications for those proceedings of the Court of Appeal’s judgment in the Cannings case. Thirdly, within the next 12 weeks social services departments should, together with their lawyers, identify cases in which a final care order was made in the past which involved harm to the child or a sibling, and in which the grounds for the making of an order depended exclusively, or almost exclusively, on a serious disagreement between medical experts about the cause of the harm. In such cases councils should again consider, with their lawyers, whether there are now doubts about the reliability of the expert medical evidence. If that is so, they should – bearing in mind the child’s current circumstances and current best interests – consider whether to apply to the court for the care order to be discharged, or whether to support any application that made be made by the parents or the child. When reviewing cases, councils will also need to take into account any fresh case law judgments from the Appeal Court that may be relevant. The number of case falling into the category that I am asking councils to review is likely to be manageable, although I do not intend to speculate about the precise number. Our best estimate is that it may number no more than the low hundreds, rather than thousands. I am not suggesting that it will be appropriate in every case, following a review, to apply for the discharge of the original care order. The decision must depend entirely on the circumstances of each case. Councils already have a duty to review the cases of children who are the subjects of care orders at least every six months. Given the range of public concerns that have been raised, it would not be right to impose an arbitrary limit on the types of cases that should be reviewed. The key determining factor is that the making of the care order depended exclusively, or almost exclusively, on a dispute between medical experts. When applications are made to the court, whether by the local authority, the parents or the child, it will be for the court to decide in all cases whether the care order should be discharged.”

“She asked whether we would establish a national helpline. We considered that, but, as a range of support agencies is in situ, we decided it would be better to work through the helplines and organisations that already exist. All local authorities have adoption support facilities and a number of national organisations offer support to all the groups of people who might be involved. Such organisations include NORCAP – the National Organisation for the Counselling of Adoptees and Parents – the Family Rights Group, After Adoption and the Post-Adoption centre. There is a whole range of such groups and we thought it better to work through them.”

“(a) The child suffered rigors while an in-patient in hospital in 2001. (b) The mother was found by the court to have deliberately administered an unidentified infected substance to the child, thereby causing the rigors which were potentially life threatening while the child was in hospital in 2001. (c) The evidence in support of that finding was circumstantial. (d) Nowhere was the substance identified. (e) [Dr Y] was the jointly instructed paediatric expert in the case. (f) [Dr Y] did not see the mother or the child for the purposes of his assessment. (g) [Dr Y]’s experience was based in part on research undertaken with Professor Sir Roy Meadow. (h) [Dr Y] had no expertise of fabricated disease in the field ‘Fabricated or Induced Illness’ syndrome / Munchausen Syndrome by proxy, but supported the finding. (i) Other experts were of the view that there was no known cause for the rigors. (j) Senior staff at the hospital considered it unlikely that the mother would have had the opportunity to administer the substance. (k) The judge found that the mother had lied about a number of matters.”

“The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs.”

“At one time it was believed that the mere publication of information about a ward of court was contempt of court. Although that heresy was exploded by the Court of Appeal in In re F … , the belief seems to have lingered on well into the 1980s … Let it be said clearly, once and for all: the publication of information about a ward, even if the child is known to be a ward, is not, of itself and without more ado, a contempt of court … At one time, and even after the Court of Appeal’s decision in In re F, there was widespread misunderstanding as to the ambit of section 12 and, in particular, as to the meaning of the critical words “information relating to proceedings before [the] court sitting in private”

“[E]vents in the lives of the children in the present case which are already in the public domain or which do not relate to the proceedings can be the subject of publication. Furthermore certain material which might well qualify in a loose sense as information relating to the proceedings can be published because the prohibition is to be construed not loosely but strictly and by direct reference to the mischief at which it is directed. Thus, in the absence of a specific injunction, the following can be published: (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 as is mentioned in (a) … ; (c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings as are mentioned in (a) … ; (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 … ; and (g) the text or summary of the whole or part of any order made in such proceedings … ”

“Both section 12 of the 1060 Act and section 97 of the 1989 Act raise the same question: what is meant by publication? Mr Spon-Smith offers us the definition in the Shorter Oxford Dictionary. Mr Everall counters with Arlidge, Eady & Smith on Contempt, 2nd ed (1999), para 8–79. The authors there submit that the statutory language should be given the wide interpretation of the law of defamation: it should not be confined to information communicated through the media but should extend to private communications to individuals. I do not read a narrower sense in the dictionary definition and would accept that a conversation between the CFR and another individual might amount to publication, but I cannot accept that a CFR publishes, and thereby exposes himself to a risk of contempt, when he reports concerns to the relevant statutory authority charged with the collection and investigation of material suggestive of child abuse. Such a communication between two professionals exchanging information in the course of their respective functions, each acting in furtherance of the protection of children, does not constitute a publication breaching the privacy of contemporaneous Children Act proceedings.”

“[66] In my judgment the second, and fatal weakness in Mr Everall’s argument lay in its reliance on a wide construction of the word “publication”

“I would not wish to be thought in any way to be seeking to water down or diminish the need for confidentiality in proceedings relating to children. Mr Everall’s argument is historically well rooted and honourably designed to afford the maximum protection for children against unwarranted or unauthorised disclosure of information. The only question is whether the prohibitions which he submits are universal do in fact apply to inter-disciplinary communication between CFRs and child protection social workers. In my judgment, for that to be the case, the statutory language would have to be clear and unambiguous, and the court would need to be driven to the conclusion that no alternative construction of it was permissible.”

“the difficulty remains that there may come a time when a communication takes place of material, falling within the categories defined in section 12, but which does not serve such a positive and useful purpose, as a matter of public policy. It seems unnecessary to define “publication” purely in the light of these rather special facts. Thus, it may be that the greater flexibility acknowledged by Thorpe LJ has more to commend it.”

“At (f) above, I noted that it is permissible to publish 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 is taking place. … I am clear that, were a journalist to station himself outside the courtroom at the forthcoming hearing of these residence proceedings, it would be permissible for him to publish the identity of the witnesses whom he saw go in and out. It therefore becomes particularly anomalous if the identity of the witnesses cannot be published before the hearing. I hold that it is not a contempt of court to identify a witness, even in the types of proceedings in private specified as exceptional in s 12(1) of the 1960 Act.”

“However, in my view, the analysis becomes more difficult when one moves to [the] second feature, namely that, in Mr Dempster’s piece, the witnesses were identified as giving evidence for the father. When one asserts that a witness is giving evidence for one party against the other, one is moving from the formal shape of the proceedings towards what, in … Pickering … , Lord Bridge called ‘the substance of the matters which the court has closed its doors to consider’. The assertion does not reveal the substance of those matters but it cannot be made other than by reference to the stance taken by the witness in relation to them. Put another way, it is the content of his affidavit or statement which determines the assertion. I consider this to be a grey area but, in the light of what follows, I do not regard it as necessary for me to reach a concluded view upon it.”

“I turn to the third alleged feature, namely that in the piece Mr Dempster recounts an allegation to the effect that the mother has been portrayed in the proceedings as a bad mother who is unfit to look after the children.”

“I am satisfied that the reference to the portrayal of the mother in the proceedings as a bad mother went far beyond a description of the nature of the dispute and reached deeply into the substance of the matters which the court has closed its doors to consider. If the reference could successfully be finessed as a legitimate identification of the nature of the dispute, the privacy of the proceedings in the interests of the child would be not just appropriately circumscribed but gravely invaded.”

“(1) The exercise of the judicial discretion which arises in these cases requires consideration of a very wide range of factors. In the final analysis it involves a balancing exercise in which the judge has to identify, evaluate and weigh those factors which point in favour of the disclosure sought against those factors which point in the other direction. (2) The interests of the child (which … typically point against disclosure) are a ‘major factor’ and ‘very important’ … But … it is clear that the child’s interests are not paramount. (3) In the typical case the most important factor pointing against disclosure, other than the interests of the child involved, is what Sir Stephen Brown P in Re D (Minors) (Wardship: Disclosure) [1994] 1 FLR 346, 351A, referred to as ‘the importance of confidentiality in wardship proceedings and the frankness which it engenders in those who give evidence to the wardship court’.”

“Wrapped up in this concept of confidentiality there are, as it seems to me, a number of different factors and interests which need to be borne in mind: (i) First, there is the interest of the particular child concerned in maintaining the confidentiality and privacy of the proceedings in which he has been involved, what … Balcombe LJ referred to as the ‘curtain of privacy’. (ii) But there is also, secondly, the interest of litigants generally that those who, to use Lord Shaw of Dunfermline’s famous words in Scott v Scott [1913] AC 417, 482, ‘appeal for the protection of the court in the case of [wards]’ should not thereby suffer ‘the consequence of placing in the light of publicity their truly domestic affairs’. It is very much in the interests of children generally that those who may wish to have recourse to the court in wardship or other proceedings relating to children are not deterred from doing so by the fear that their private affairs will be exposed to the public gaze – private affairs which often involve matters of the most intimate, personal, painful and potentially embarrassing nature. As Lord Shaw of Dunfermline said: ‘The affairs are truly private affairs; the transactions are transactions truly intra familiam’. (iii) Thirdly, there is a public interest in encouraging frankness in children’s cases, what Nicholls LJ referred to in Brown v Matthews [1990] Ch 662, 681C, as the frank and ready co-operation from people as diverse as doctors, school teachers, neighbours, the child in question, the parents themselves, and other close relations, including other children in the same family, on which the proper functioning of the system depends. … it is very much in the interests of children generally that potential witnesses in such proceedings are not deterred from giving evidence by the fear that their private affairs or privately expressed views will be exposed to the public gaze. (iv) Fourthly, there is a particular public interest in encouraging frankness in children’s cases on the part of perpetrators of child abuse of whatever kind … (v) Finally, there is a public interest in preserving faith with those who have given evidence to the family court in the belief that it would remain confidential. However, as both Ralph Gibson LJ in Brown v Matthews [1990] Ch 662, 672B, … and Balcombe LJ in In re Manda [1993] Fam 183, 195H, … make clear, whilst persons who give evidence in child proceedings can normally assume that their evidence will remain confidential, they are not entitled to assume that it will remain confidential in all circumstances … ”

“Unless confidence is restored, the present crisis in child-protection work will worsen. The present state of affairs cannot be allowed to continue.”

“The last few months have seen an unprecedented number of media attacks on paediatricians. Although this has largely been around high-profile court cases, the impact on the whole of child protection has been enormous. The public, and indeed many professionals, are confused. Paediatricians are deeply concerned, both for themselves and for their families. The purpose of this letter is to let you know that we do recognise this as a major issue, and to let you know what we are doing about it. That this is causing a major problem is evident from the fact that paediatricians are becoming reluctant to become involved in child protection unless they absolutely have to. A substantial number of designated and named doctor posts are unfilled. Our recent survey of all paediatricians, for which we thank you for the 75+% response rate, has shown us that in the last five years one in ten have had a complaint against them relating to child protection work. Increasing numbers are reported to the GMC by aggrieved parents. Many of our trainees say they don’t want to do child protection work. In the midst of this the College continues to receive a large number of requests from solicitors to suggest the names of paediatricians who will give second and expert opinions – something it is becoming increasingly difficult to do as people become more unwilling to undertake this kind of work.”

“We are not on our own in being under pressure. Australia and New Zealand have experienced similar difficulties, and only last week I had a letter signed by many of the leading child protection experts in the United States. I quote: We are aware of the continuing and massive backlash in the United Kingdom against child protection, which uses as a strategy the promulgation of disinformation and vilification of certain doctors through sensational and convincing media campaigns. As President of the Royal Collage of Paediatrics and Child Health, you are doubtless concerned that such campaigning poses a great risk to maltreated children, has a chilling effect upon paediatricians’ willingness to involve themselves in these cases, and sets back the gains that have been made on behalf of abused and neglected children during the past 40 years. We are writing to you now because we deeply share that concern, and with the hope that we can begin a dialogue about a problem that is mutual even if currently manifested somewhat differently in our different countries. These are difficulties that, on both sides of the Atlantic, promise to endure and enlarge unless there is a heightened corrective response both immediately and over time. The response must come from those who understand the issues and what is at stake for the children. The judiciary is also aware of our concerns. A recent letter from Dame Elizabeth Butler-Sloss, President of the Family Division, stated: Paediatricians are probably feeling very bruised and vulnerable at the moment. The judiciary, however, have a clear appreciation of the immensely valuable work you do and the enormous importance of your contribution to child welfare and protection.”

“Lord Laming heard evidence that child protection is an unpopular specialty of paediatrics. He chose not to address the reasons in detail. There are many, but one issue that increasingly inhibits high quality child protection work is the fear of complaints and litigation. No one condones poor clinical practice, but some complaints are malicious and are intended to obstruct social work and police investigations, and some arise from orchestrated campaigns.”

“Article 8 … embraces both the right to maintain one’s privacy and, if this is what one prefers, not merely the right to waive that privacy but also the right to share what would otherwise be private with others or, indeed, with the world at large. So the right to communicate one’s story to one’s fellow beings is protected not merely by Article 10 but also by Article 8.”

“such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the privacy of the child and parties and to avoid prejudicing the interests of justice. To enable the deciding judge to gain as full and accurate a picture as possible of the advantages and disadvantages of the various residence and contact options open to the child, it is essential that the parents and other witnesses feel able to express themselves candidly on highly personal issues without fear of public curiosity or comment … to pronounce the judgment in public would, to a large extent, frustrate these aims.”

“Regard must … be had to the special role of the judiciary in society. As the guarantor of justice, a fundamental value in a law-governed State, it must enjoy public confidence if it is to be successful in carrying out its duties.”

“The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge; further, that the public at large have respect for and confidence in the court’s capacity to fulfil that function. “Impartiality” normally denotes lack of prejudice or bias. However, the court has repeatedly held that what is at stake in maintaining the impartiality of the judiciary is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large. It follows that, in seeking to maintain the “authority and impartiality of the judiciary”, the Contracting States are entitled to take account of considerations going – beyond the concrete case – to the protection of the fundamental role of courts in a democratic society.”

“The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(l), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention.”

“They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfil.”

“The freedom to publish things which judges might think should not be published is all the more important where the subject of what is being said is the judges themselves. Any judicial power to punish such publications requires the most cogent justification. Even more cogent must be the justification for giving the judges a power of prior restraint.”

“it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever.”

“In light of the attention which the Court of Appeal’s judgment in Cannings has attracted, and the level of public concern it has generated, it is highly desirable that the public be given appropriate information about the resulting impact in family cases. Where applications for the variation, discharge or revocation of final orders are made, judges should consider issuing in public at the conclusion of the case suitably anonymised judgments. Due consideration will of course be given to any concurrent proceedings, particularly criminal proceedings, upon which publicity may have a bearing. It is also worth giving consideration to increasing the frequency with which anonymised family court judgments in general are made public. According to current convention, judgments are usually made public where they involve some important principle of law which in the opinion of the judge makes the case of interest to the law reporters. In view of the current climate and increasing complaints of ‘secrecy’ in the family justice system, a broader approach to making judgments public may be desirable.”

“identifying the extent to which refusing to grant the relevant terms of the injunction asked for would be a proportionate interference with the private life of the child on the one hand and their grant would be a proportionate interference with the rights of the press under Article 10 on the other hand.”

“The balance came down in favour of production as it invariably does, save in exceptional cases.”

“(i) the maintenance of the confidentiality of the documents themselves – the documents should not be read into the public record or otherwise put in the public domain; (ii) the minimum public disclosure of any information derived from the documents; and (iii) the protection of the patient’s anonymity, if not in perpetuity then at any rate for a very long time indeed.”

“There is also, of course, the reality which has to be faced that those who are within X’s “inner circle” will recognise that the story is about him, even if he is not named or otherwise directly identified. As Butler–Sloss LJ (as she was then) said in In re M and N (Minors) (Wardship: Publication of Information) [1990] Fam 211 at pp 225, 226: “unless there is a total ban … someone somewhere may put the story to the person. That seems to me to be inevitable … to those who know the facts any description, for instance from this judgment, will lead to identification.”

“It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public.”” “unless there is a total ban … someone somewhere may put the story to the person. That seems to me to be inevitable … to those who know the facts any description, for instance from this judgment, will lead to identification.” “It is to be anticipated that in almost every case the public interest in favour of publication can be satisfied without any identification of the ward to persons other than those who already know the facts. It seems to me, however, that the risk of some wider identification may have to be accepted on occasions if the story is to be told in a manner which will engage the interest of the general public.””

“whilst persons who give evidence in child proceedings can normally assume that their evidence will remain confidential, they are not entitled to assume that it will remain confidential in all circumstances.”

“unless injuncted by the court, the BBC is entitled to broadcast. It is for those seeking to obtain an injunction to establish their case and to do so convincingly. If they cannot establish that case then the BBC is entitled to broadcast.”

“Mr Arnot invited me to make an order requiring [the newspaper] to file with the court and serve on the local authority a copy of each article that it proposes to publish. I would in any event have declined to do so. I am not aware of any case in which such an order has been made and I can think of no case other than In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100 in which a newspaper has volunteered an article in draft. In my experience both the print and the broadcast media usually decline to share their story with the court in advance of publication or broadcast.”

“UPON considering and without prejudice to Section 12 of the Human Rights Act 1998, Section 12 (1) of the Administration of Justice Act 1960; Section 97 (2) of the Children Act 1989 Duration of order (1) This order is to have effect until 28th October 2017 (the eighteenth birthday of the child whose details are set out in the first Schedule) (“the child”) or until further order in the meantime. Who is bound by this order (2) This order binds all persons including the First and Second Respondents (whether acting by themselves or by their servants or agents or otherwise howsoever) and all companies (whether acting by their directors or officers, servants or agents or otherwise howsoever) who know that this order has been made. Restrictions (3) Subject to paragraph (4) this order prohibits the publishing in any book, magazine or newspaper or broadcasting in any sound or television broadcast or by means of any cable or satellite programme service or public computer network (‘publishing’) of: (a) the name and/or address of: (i) the child; (ii) any school or other establishment in which the child is residing or being educated or treated (an ‘establishment’); or (iii) any natural person having the day-to-day care of the child (a ‘carer’); or (iv) the paternal grandparents of the child being the persons whose names and addresses are set out in the second Schedule; (b) any picture being or including a picture of either (i) the child or (ii) either of the grand parents; (c) any other matter calculated or likely to lead to the identification of the child as being the child of the First and Second Respondents and the grandchild of the paternal and/or maternal grandparents and the niece of ……; (d) any matter calculated or likely to lead to the identification of any doctor who has given evidence in these proceedings (a ‘doctor’). (4) Paragraph (3) of this order only prohibits publication in a manner calculated or likely to lead to the identification (a) of the child as being a child involved in proceedings before the Court in which powers under the Children Act 1989 were exercised by the Court with respect to the child; or (as the case may be) (b) of a doctor as having given evidence in proceedings before the Court in which powers under the Children Act 1989 were exercised by the Court with respect to the child. (5) Save for service of this order in accordance with para (8) below, no publication of the text or a summary of any part of this order (or any other order made in the proceedings) may include any of the matters referred to in para (3) above. (6) This order prohibits soliciting any information relating to the child (other than information already in the public domain) from: (a) the child; (b) any carer; (c) the parents or either of them; (d) either of the paternal grandparents; (e) either of the maternal grandparents; (f) any of the child’s siblings or half-sibling; (g) the maternal aunt of the child … What is not restricted (7) Nothing in this order shall of itself prevent any person: (a) publishing any particulars of or information relating to any part of the proceedings before any court other than a court sitting in private; (b) publishing anything which at the date of publication by that person has previously been published (whether inside or outside the jurisdiction of the court) in any newspaper or other publication or through the Internet or any other broadcast or electronic medium to such an extent that the information is in the public domain (other than in a case where the only publication was made by that person); (c) enquiring whether a person is protected by para (6) above; (d) seeking information from any person who has previously approached that person with the purpose of volunteering information; (e) soliciting information relating to the child while exercising any function authorised by statute or by any court of competent jurisdiction. Service (8) Copies of this order endorsed with a penal notice be served by the Applicant Local Authority. (a) on such newspaper and sound or television broadcasting or cable or satellite programme services as the Applicant may think fit in each case by fax or first-class post addressed to the editor in the case of a newspaper or senior news editor in the case of a broadcasting or cable or satellite programme service; and (b) on such other persons as the Applicant may think fit in each case by personal service. Further applications about this order (9) The parties and any person affected by any of the restrictions in paras (3) to (6) above are at liberty to apply on no less than 48 hours notice to the parties.”