X Council v B & Ors [2008] EWHC 270 (Fam)

[2008] EWHC 270 (Fam)Case No LA03C00014
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LIVERPOOL DISTRICT REGISTRY
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 February 2008
Before
MR JUSTICE MUNBY
Between
X COUNCILApplicantB and othersRespondents
In the Matter of the B children
No hearing : matter dealt with on paper
Judgment
[1]On 16 August 2004, at the end of care proceedings brought by a local authority in respect of the B children, I handed down a written judgment which I entitled In the Matter of the B children, X Council v B and others [2004] EWHC 2015 (Fam). The judgment bore the following rubric on the front sheet:
“This judgment was handed down in private but the judge hereby gives leave for it to be reported in the form in which it here appears. The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.”
The judgment was subsequently reported as X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341. At that stage neither the family nor the local authority had been publicly identified.[2]As set out in that judgment the proceedings related to three children: D, who was born on 19 November 1987, J, born on 20 April 1992, and W, born on 1 February 1998. They had an older sister, N, born on 18 February 1985.[3]On 6 March 2007 the children's mother, who I will refer to as Mrs B, wrote to me. Her purpose was to seek permission to identify the local authority which had brought the care proceedings. Having consulted the local authority and obtained its views, I indicated that I was prepared to rule on the matter without requiring Mrs B to make any formal application.[4]In the event on 6 July 2007 I made an order permitting the local authority to be identified (see Re B Children, X Council v B and others [2007] EWHC 1622 (Fam) at para [21]):
“Upon reading the judgment handed down on 16 August 2004 And upon reading letters from the mother dated 6 March 2007 and from the local authority dated 9 May 2007 And the judge treating the letter from the mother dated 6 March 2007 as an application that the local authority’s name should no longer be anonymised It is ordered that the rubric on the cover sheet of the judgment be amended by inserting the words “and the local authority” immediately after the words “the advocates”
And it is declared that there is nothing in the judgment or in any order of the court or otherwise to prohibit the identification of Blackpool Council as being the local authority involved in these proceedings.”[5]I made it clear in my judgment (see Re B Children, X Council v B and others [2007] EWHC 1622 (Fam) at para [10]) that the only matter raised by Mrs B and the only matter on which I was ruling was the question of whether the local authority’s name should continue to be anonymised:
“I make no ruling and express no views whatever on any other matter.”
[6]That judgment was handed down on 6 July 2007. Shortly afterwards I received letters dated 27 July 2007 from two of the B children, J and W. The relevant part of J’s letter read as follows:
“I am writing this letter to ask if it would be possible for me to speak out publicly about my experience through the care system of the social services. I was 10 when it happened and now I am 15 and I want to speak about the lack of intelligence and lack of respect and responsibility families like us have been treated with.”
The relevant part of W’s letter read: “I want to speak out if I can I just want people to know what it is like at this stage of anger and being very upset my best friends know what happened to me and my family”.[7]More recently I have received e-mails from Mrs B culminating in an e-mail dated 8 January 2008 in which she says:
“I’m writing with regard an article we have done with a magazine trying to campaign about the family court system, though our story is a very difficult one to tell we believe that it needs to be told in detail, sadly it won’t be printed due to the restraints of the family court law, in the article there are none of the professionals named only the fact that the council are named for which you gave us permission, after talking to the reporter and being told that the story would not run, I’m mailing you to ask your permission for our story to be told, for our children to be shown in the article and to name Blackpool Council in the article, as I’ve said there will be no professionals named and we have the full backing of all our children to do so … unless the families who are falsely accused can talk out then not only can the family have closure also the way family court is run can never be made a better court system.”
[8]I read this correspondence as being a request by Mrs B and by J and W for permission to identify themselves publicly as being the family (hitherto referred to only as the B family) and as being two of the children (hitherto referred to only as J and W) involved in the care proceedings.[9]I am prepared to deal with the matter without requiring a formal application.[10]I do not propose to analyse the law in any great detail. It suffices for present purposes to note that: i) There has never been any injunction in this case prohibiting reporting or discussion of the case. As I said in my previous judgment (Re B Children, X Council v B and others [2007] EWHC 1622 (Fam) at para [11]): “So far as I can recall, and I have examined the court file to confirm my recollection, I was not asked to grant and I did not grant any injunction. The only anonymity which was granted was that deriving from the rubric on the front sheet of my judgment.” ii) The care proceedings in relation to the B children have long since come to an end. Accordingly, the restrictions imposed by section 97(2) of the Children Act 1989 no longer operate: Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83. iii) The only relevant statutory restrictions which continue to apply are those imposed by section 12 of the Administration of Justice Act 1960. iv) Section 12 does not prevent publication of the names of the parties or the names of the children: Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142. Nor does section 12 prohibit discussion, within certain bounds, of the nature of the dispute in the proceedings. v) What section 12 does prevent, unless the judge otherwise directs, is the publication of accounts of what has gone on in front of the judge sitting in private, publication of documents (or extracts or quotations from documents) such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, and publication of transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment: see Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at para [49].[11]In the present case, of course, I gave permission for my judgment to be published, but only in anonymised form and subject to the rubric set out in paragraph [1] above. That said, and as I commented in my earlier judgment (Re B Children, X Council v B and others [2007] EWHC 1622 (Fam) at para [11]):
“my recollection (which may be wrong) is that this wording was used not as a result of any specific request made by any of the parties but simply because it was the wording conventionally attached at that time to Family Division judgments authorised to be released for publication or report.”
[12]So far as the rubric is concerned I propose to adopt for present purposes the same approach as on the previous occasion (Re B Children, X Council v B and others [2007] EWHC 1622 (Fam) at para [12]):
“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.”
[13]The position, therefore, as a matter of law is this: 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).[14]The question, therefore, is whether I should further amend the rubric on the cover sheet of the judgment to permit Mrs B, J and W, if they so wish, to identify themselves as the persons referred to under those initials in the judgment.[15]In my judgment, this is something I should do.[16]In coming to this conclusion there are two important principles that I have particularly had in mind.[17]In the first place, the State is no longer involved with the B family. The care proceedings came to an end without my making any order. The local authority does not have parental responsibility for either J or W. J and W are not wards of court. The only persons with parental responsibility for them are Mr and Mrs B. Insofar as the decision whether a teenager should speak in public or talk to the media involves an exercise of parental responsibility then it is for Mr and Mrs B to exercise that responsibility, not the court or any other public authority. There are no grounds for any interference by the State – whether the State in the guise of the local authority or the State in the form of the High Court – with the exercise by Mr and Mrs B of their parental responsibility. No-one has made any application for a specific issue order. Mr and Mrs B have not sought the assistance of the court in the exercise of their parental responsibility. The only application before the court is for those affected to be freed from the anonymity which was imposed by the rubric.[18]The other important matter is this. J is now almost 16 years old, though W is still only 10. So far as J is concerned, therefore, he is of an age when he should be free to decide for himself whether these are matters he wishes to talk about in public: see the discussion in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949. As I said in that case at para [83]:
“the workings of the family court system and, perhaps most importantly of all, the views about the system of the children caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at p 474, “matters of public interest which can and should be discussed publicly” … These are issues that require open and public debate in the media. And what more important voice can there be in such a debate than that of a teenager who has gone through all that Angela has experienced?”
[19]Accordingly I have today made an order in the following terms:
“Upon reading (1) the judgment handed down on 16 August 2004 and (2) the order made herein by Mr Justice Munby on 6 July 2007 And upon reading letters from the children J and W both dated 27 July 2007 and various letters from their mother the most recent being dated 8 January 2008 And the judge treating those letters as an application that the names of Mrs B and of J and W should no longer be anonymised It is ordered (without prejudice to the order dated 6 July 2007) that the rubric on the cover sheet of the judgment be further amended by inserting at the end the words “provided that nothing shall prevent Mrs B and J and W if they so wish (but in the case of W only if those with parental responsibility for him agree) waiving their anonymity in relation to the judgment and identifying themselves in public by name and surname as persons involved in these proceedings”.”
[20]There are four observations I should make in conclusion: i) This application, unlike its predecessor, does not concern the local authority, so I have dealt with it without consulting the local authority. ii) The application has been made by Mrs B, J and W. There has been no application by or on behalf of either D or N. In accordance with the terms of my order, Mrs B, J and W may publicise their names, including their surname. To that extent, D and N may indirectly be identified, and I have taken that into account in coming to my decision. But nothing I have said authorises the publication in this connection of D and N’s first names without their permission. iii) Nothing I have said authorises the publication of the names of any of the professionals or other people involved in the proceedings. Mrs B’s e-mail makes clear, as she says, that “there will be no professionals named”. If I am to be asked to make an order permitting any of the other people involved in the proceedings to be named, there will have to be a proper application and those affected will have to be given an opportunity to express their views. iv) I have considered only the question of whether Mrs B, J and W should be permitted to identify themselves in public as persons involved in these proceedings. Consistently with the approach I have adopted, I have not considered the wisdom of their doing so. That in the case of Mrs B and J is a matter for them; in the case of W a matter for his parents. It is not, for the reasons I have sought to explain, a matter for the court. It is not for me to express any views on the subject, let alone to give advice. I confine myself to two observations which, no doubt, all those involved will bear in mind: a) Once they have waived their anonymity, if that is what they choose to do, Mrs B and J and W will not be able to control the media or the use the media make of all the information in the public domain, including all the matters referred to in the judgment of 16 August 2004. b) That judgment contains references to a number of private and personal matters to do with Mrs B, J and W. If they waive their anonymity, those matters which, although in the public domain, are at present merely linked with an anonymous Mrs B or an anonymous J or an anonymous W, will be publicly linked with the identified [Mrs B, J and W]. Is this really what they want?

Cited in 6 later judgments