K (A Child: Wardship: Publicity), Re [2013] EWHC 2684 (Fam)

Case No EY11CO00842013] EWHC 2684 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 25 July 2013
COVENTRY DISTRICT REGISTRY
Before His Honour Judge Clifford Bellamy
Sitting as a Judge of the High Court
Re K (A Child: Wardship: Publicity)
Miss Julie Moseley for the Local Authority
Mr Martin Downs for the parents
Miss Vanessa Meachin for the child
JUDGMENT
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and Coventry City Council (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.
[1]These proceedings concern a young person. Katie is now aged 16. Her adoptive parents are MG and FG. On 10 June 2011 Coventry City Council (‘the local authority’) issued care proceedings. The final hearing took place in July 2012. The local authority’s final care plan, opposed by the parents, was that Katie should be made the subject of a final care order. That is the order I made.[2]At final hearing the parents’ case was that it would be more appropriate for the court to make Katie a ward of court. On behalf of both the local authority and the Children’s Guardian it was contended not only that that was not the appropriate order but that as a result of s.100 Children Act 1989 the court had no jurisdiction to make Katie a ward of court. Though satisfied that Katie’s interests would be best served by making her a ward of court I was persuaded by the local authority and the guardian that I had no power to do so. I gave the parents permission to appeal. On 22November their appeal was allowed. The care order was discharged. Katie was made a ward of court. The proceedings were remitted back to me.[3]A number of issues have arisen since Katie became a ward of court, not least the continuing and urgent need to try to engage Katie in therapy. It is unnecessary to say more about those issues within this judgment. The one remaining issue relates to the parents’ wish to be able to discuss the case with the media. It is that issue to which this judgment relates.

The background

[4]The background history is set out fully in my earlier judgment. It is unnecessary to repeat it. I was critical of several aspects of the way in which the local authority had dealt with this case. For the purpose of this present judgment it is appropriate simply to repeat what I said at the end of my judgment:197. Accepting a child for adoption, particularly a late adoption, inevitably involves taking a risk. The parents have said that had they known in 2003 what they know now they would not have proceeded with the adoption. But they did not know. And they did adopt Katie. There is no going back. Adoption is final, both for the child and for her adopters. It is to the immense credit of these parents that despite the challenges Katie has presented, and despite the difficulties they have had to contend with in engaging with the local authority, they still care about Katie, they still love her and they still want what is best for her.198. In assessing the local authority’s care plan two particular issues give me cause for concern. Firstly, the local authority’s case for a care order is in large measure reliant upon the conviction of professionals that that is what Katie wants. Yet it is not clear that any professional involved in her care has stood back and assessed what Katie is saying against the backdrop of her acknowledged emotional immaturity and her propensity for using her behaviour as a means of controlling those around her.199. Secondly, the state of the parents’ working relationship with the local authority is very poor. The local authority has been accommodating Katie since December 2010. In that time Katie has been sexually assaulted, prompting the local authority to apply for a secrecy order; she has been arrested for a serious assault on a member of staff but the parents were not informed; she has had a contraceptive implant fitted but the parents (Roman Catholics) were not consulted and were only informed after the event; the local authority has signed up to a working agreement which made clear provision for regular updating information to be provided to the parents but its compliance has been erratic and unreliable; at a meeting on 8th December 2011 the local authority appeared to agree to pay for Family Futures to provide therapy for Katie and yet, to date, no therapy has taken place and no clear arrangements for therapy are in place; at that same meeting the local authority agreed to prepare an updated working agreement but that, too, has not happened.200. The father asks, plaintively: if this is the way the local authority treat us when we alone have parental responsibility, how will they treat us if they share parental responsibility with us under a care order? That is a serious question. I regret to say that on the evidence before me I am in no doubt that there is a likelihood, a real possibility, that if I make a care order the parents will be marginalised and largely ignored.[5]In giving the leading judgment in the Court of Appeal – Re E (Wardship[6]It was against that background that I took the decision that an anonymised version of my judgment should be published and that the local authority should be identified – Re K (A Child: Post Adoption Placement Breakdown)[2012] EWHC 4148 (Fam), [2013] 1 FLR 1.[7]On 16 August 2012 articles appeared in the Daily Mail and the Daily Telegraph. There was a further reference to the case in another article in the Daily Telegraph on 18 August. The local authority was not identified in any of these reports though the reports did refer to the hearing having taken place in Coventry.[8]Shortly after the publication of these articles the BBC contacted the court asking to be put in touch with the parents. On 21 August, of my own motion, I ordered that no party should discuss the case with the media without the leave of the court. I had intended that order only to remain in force for a matter of days until full argument could be heard. In the event, that order has remained in force until today. It is that order which the parents now apply to discharge.

Recent events

[9]I heard submissions on 5 June. I reserved judgment. On 9 July I received an e-mail from the local authority’s solicitor informing the court that Katie had absconded. The e-mail reported that, “Katie recently became aware that her story had been reported in the Daily Mail newspaper. This caused her significant distress and resulted in a decline in her behaviour and relationship with the workers at her residential home. Katie formed a relationship with a new young person at the home and on Friday 5th July 2013 Katie and the other young person left the home.” In a subsequently filed written statement, the case accountable social worker indicates that news of the report in the Daily Mail was inadvertently disclosed to Katie by her therapist at her first therapy session on 24 June. Until then, for the past ten months Katie had been unaware of the press reporting.[10]It is clear from the social worker’s recent statement that the local authority considers the deterioration in Katie’s behaviour to be the direct result of her becoming aware of the Daily Mail article. The possibility that there may have been other causes or that Katie’s discovery of the Daily Mail article was just part of a constellation of causative factors appears not to have been considered.[11]In a statement filed in response to the social worker’s statement the parents challenge the local authority’s assumption on causation. They believe that the problem is more complex than that. They point to the fact that transition at the end of the school year to the beginning of the summer school holidays has caused difficulty for Katie in the past. They list a number of factors which may have contributed to the recent deterioration in her behaviour including, for example, beginning a period of extended school holiday having completed her GSCE exams, waiting for GCSE results in August, moving into the sixth form in September, the commencement of therapy and the end-of-GCSE school prom.[12]It is in my judgment overly simplistic to make the assumption that Katie’s discovery of the article in the Daily Mail was the single cause of the recent deterioration in her behaviour. I proceed on the basis that it was at least a contributory factor.[13]Katie was found on 9 July. She is now in a respite placement in a different part of the country.

The parents’ application to discharge the order of 21August 2012

[14]The parents wish to be allowed to discuss their experiences with the media. They advance three reasons for being permitted to do so.[15]Firstly, they wish to raise awareness of RAD. For that purpose they have set up a charity called PATCHES (Promoting Attachment for Traumatised Children’s Hearts and Education Society). They wish to promote their charity by discussing their own experiences of parenting an adopted child suffering from RAD. They also want to highlight the implications for the adoptive siblings of such a child. More generally, they would wish to be able to talk about the need for greater recognition of RAD, the treatment options and the kind of support needed by families caring for a child suffering from RAD. The parents’ motive is to change systems for the better and to try to get RAD recognised as a life-affecting condition in the same way that autism is recognised as a lifelong developmental disability. Their target audience is educators and social workers. The mother has recently been involved in arranging a visit from America of an adult RAD sufferer and adoptive parent who has made a film, The Boarder, which has been produced to show to discussion workshops for professionals interested in RAD.[16]Secondly, they wish to discuss their experience of working with this local authority and in particular whether there may have been ways in which the local authority could have achieved better outcomes for Katie (for example, by providing regular respite care) in a way which would at the same time have achieved better value for money.[17]In my earlier judgment I made significant criticisms of the way the local authority had dealt with this case and noted the poor relationship between the local authority and these parents. At the beginning of this year there was a meeting between the parents and senior management. Although the meeting appeared to be positive (the parents describe it as “good mood music”) from the parents’ perspective it has not led to any change in the working relationship between themselves and the local authority. The parents say that correspondence has continued as if that meeting had never taken place. They consider it a waste of time talking to this local authority because it isn’t listening. The parents wish to be able to discuss these issues with the media.[18]Thirdly, they wish to raise their concern about the need for greater transparency in the family courts. They also want to take part in the public debate which has been taking place concerning adoption and in discussions concerning legislative changes such as those currently before Parliament in the Children and Families Bill.[19]The parent’s application was listed for hearing before me on 19 February. The local authority’s response to the application was to indicate an intention to apply for a Reporting Restrictions Order. In the belief that that application was about to be issued arrangements were put in hand for it to be heard by Hogg J in Birmingham at the beginning of February. In the event, on 29 January I was informed that neither the local authority nor the guardian intended to proceed with that application. On behalf of the parents, Mr Downs makes the point that by opposing the parents’ present application the local authority is effectively seeking a Reporting Restrictions Order by the back door. Furthermore, Mr Downs notes that at the hearing before the Court of Appeal last November the court was made aware of the newspaper articles to which I referred earlier. The local authority could have sought to deal with the wider publicity issues at the time of the appeal hearing but did not do so.[20]The parents understand and accept that if they are given permission to discuss the case with the media it will be necessary for there to be some restrictions on what can be published. They accept that Katie must not be identified whether by name or location or school. Although they wish to be able to identify themselves as the adoptive parents referred to in the two Bailii judgments they accept that their names could not be published in that or any other context.[21]Mr Downs accepts that both Article 8 and Article 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 (‘the European Convention’) are engaged by the parents’ application. Although the media has not been represented at this hearing he submits that the media’s Article 10 rights are nonetheless also engaged. He acknowledges that the High Court has jurisdiction both to restrain publicity and to permit publicity. He accepts that even the very wide terms of the order I made of my own motion last August are within the jurisdiction of the Court if the factual circumstances of the case justify it and the order is proportionate.[22]Mr Downs submits that having undertaken the required intense focus on the comparative importance of Katie’s Article 8 rights and the parents’ and the media’s Article 10 rights, and having undertaken the ultimate balancing test, it is plain that it would not be proportionate to prevent the parents from engaging with the media in the way they propose.

The local authority’s position

[23]The local authority has what their counsel, Miss Moseley, describes as “significant concerns” about the likely adverse impact upon Katie of her parents and family speaking to the media about her story. It considers it to be “plainly inimical to Katie’s emotional wellbeing and to the safety, security and stability of [her] placement for her to be aware that deeply private and personal information that can be linked to her is disseminated widely” by her parents.[24]The local authority is also concerned that Katie may seek her own right of reply in terms of her account of those events that are within the public domain.[25]Miss Moseley informed me that Katie is clear that she does not wish to be the ‘face’ of her parents “ongoing campaign against the agencies concerned with her care and their wider proposed campaign regarding awareness of the effect of RAD”. I am told that she holds these views very strongly.[26]In the event that the court were minded to discharge the order made on 21 August 2012 the local authority submits that in any discussions with the media the parents should not be entitled to identify the local authority since this would increase the possibility of Katie herself being identified.[27]The local authority acknowledges the parents’ entitlement to make a complaint concerning its care of Katie and its engagement with them. In her skeleton argument Miss Moseley sets out a comprehensive and lucid analysis of the law relating to the disclosure of information relating to Children Act proceedings in support of a complaint about the conduct of a local authority. I mean no disrespect to Miss Moseley’s very able arguments when I say that I find it unnecessary to address that issue. These parents do not wish to make a complaint about this local authority. They want to discuss publicly their concerns about the way they and their family have been treated by this local authority.[28]Miss Moseley has made further written submissions on behalf of the local authority following the recent deterioration in Katie’s behaviour. Four additional points are made. Firstly, that Katie is clearly at risk of becoming aware of any publicity even if disclosure is heavily redacted. Secondly, that the timing of when Katie learns of publicity is unpredictable and impossible for the local authority to control in order to ensure that any additional support is in place. Thirdly, that the level of upset caused to Katie by her recent discovery of the publicity last August was extreme. In extreme distress Katie’s behaviour is likely to deteriorate and it is easily foreseeable that this will put her at risk. Fourthly, that there is no pressing need for the parents’ story to be told now as opposed to after 18th January 2015 when Katie reaches the age of 18.

The guardian’s position

[29]On behalf of the children’s guardian, Miss Meachin says that although the guardian appreciates that the parents wish to be able to publicise their views she would rather there was no further publicity. Katie is fearful of being identified as a result of any future publicity and she is “exceedingly worried and fearful” of what goes into the public domain.[30]If there is to be further publicity the guardian is opposed to the local authority being identified. Although Katie no longer lives in Coventry she still has friends there with whom she communicates via Facebook. Were the media to identify the local authority then that would increase the risk of Katie herself being identified.[31]Having made those points the guardian acknowledges that some concession is likely to be granted to the parents so far as concerns their desire to talk to the media. She therefore asks that any permission granted to the parents should be delayed until at least January 2014 to enable Katie to settle into therapy.[32]Further written submissions have been made on behalf of the guardian as a result of the recent deterioration in Katie’s behaviour. The guardian is not clear what the trigger was for Katie’s recent behaviour though notes that the deterioration followed within days of her being made aware of the article in the Daily Mail. If that were the trigger then she requests that any order made by the court in respect of the parents’ present application should seek to avoid such a situation arising again in the future.

The contemporary context

[33]Before I discuss the merits of the parent’s application it is first necessary to set that discussion in its contemporary context.

Transparency

[34]The canard of ‘secret’ family courts has gained currency during the last decade. It has been a topic that has led to high profile campaigns by journalists, politicians and protest groups all pressing for greater transparency in the area of family justice. This pressure has led to Government consultations (Confidence and confidentiality: Improving transparency and privacy in family courts,Consultation Paper CP 11/06 and Confidence & confidentiality: Openness in family courts – a new approach, Consultation Paper CP 10/07), to judicial comment both in and out of court and to procedural rule change.[35]The Family Proceedings (Amendment)(No 2) Rules 2009 and The Family Proceedings Courts (Miscellaneous Amendments) Rules 2009 came into effect on 27th April 2009. The rules gave “duly accredited representatives of news gathering and reporting organisations” the right to attend most kinds of family proceedings heard in private. The court retains the power to exclude a media representative if, after hearing submissions, it is satisfied that exclusion is “necessary” on any of the grounds stated in the rule or if the court concludes that as a result of media presence “justice will otherwise be impeded or prejudiced”. The practice is now to be found in Part 27 Family Procedure Rules 2010, rule 27.11 and Practice Directions 27B and 27C.[36]Writing in The Times on 28th April 2009, Camilla Cavendish, a leading campaigner for greater transparency in the family courts, made the point that “The door is open, but we desperately need more journalists to pick up a torch and walk through it”. That has not happened. Media access to family hearings conducted in private has proved to be of only limited value. Though media access to the court is given to “duly accredited representatives of news gathering and reporting organisations” those representatives can only ‘gather’ the information they hear whilst present in court (they are not entitled, for example, to copies of witness statements or experts’ reports) and can ‘report’ only that limited information the publication of which does not breach the provisions of s.97(2) Children Act 1989 and s.12 Administration of Justice Act 1960.[37]In my experience media attendance in the family courts is rare. In the last four years there has only been one occasion when there has been a duly accredited representative in my court. I believe that that is the experience of most family judges. There are a number of reasons for this. These include, in particular, the lack of access to court documents to which I referred earlier, lack of advance notice of the cases coming before the court and lack of the resources needed to be able to send reporters into the family courts on a regular basis. However, the fact that the media rarely attends hearings in the family courts does not mean that the media has ceased to be interested in family justice. What it has meant is that there continues to be a tendency for journalists to publish reports about cases based only on the invariably tendentious accounts given to them by aggrieved parents.[38]On 28th January 2004, in the wake of the decision of the Criminal Division of the Court of Appeal in R v Cannings [2004] 1 FCR 193, the then President of the Family Division, Dame Elizabeth Butler-Sloss, issued administrative directions to all Family Division Judges, Designated Family Judges and the Senior District Judge in which she made the general point that, “It is also worth giving consideration to increasing the frequency with which anonymised family courts 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.”[39]In ReB (A Child) (Disclosure) [2004] 2 FLR 142, Munby J (as he then was) said that he “respectfully, and emphatically” agreed with that view. He acknowledged that, “[99] There are many voices raised in this debate, and they often stand in stark conflict. Parents – like the mother in the present case – often want to speak out publicly. I repeat in this context the point I made in Re Roddy (A Child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 1 FCR 481 at para [83]. In my judgment, the workings of the family justice system and, very importantly, the views about the system of the mothers and fathers caught up in it, are, as Balcombe LJ put it in Re W (Wardship: Discharge: Publicity) [1995] 2 FLR 466 at 474, ‘matters of public interest which can and should be discussed publicly’. Many of the issues litigated in the family justice system require open and public debate in the media. I repeat what I said in Harris v Harris; Attorney-General v Harris [2001] 2 FLR 895 at paras [360]—[389] about the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system… [101] …When a family judge makes a freeing or an adoption order in relation to a 20-year-old mother’s baby, the mother will have to live with the consequences of that decision for what may be upwards of 60 years, and the baby for what may be upwards of 80 years. We must be vigilant to guard against the risks. And we must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.”[40]In Re X; Barnet London Borough Council v X and Y [2006] 2 FLR 998, Munby J expressed the same views again in yet stronger terms. He said, “[166] …In my view the public generally, and not just the professional readers of law reports or similar publications, have a legitimate – indeed a compelling – interest in knowing how the family courts exercise their care jurisdiction. Moreover, if leave is confined in practice to those cases which are, for some reason, thought to be worthy of reporting in a law report, the sample of cases which will ever come to public attention is not merely very small but also very unrepresentative. [167] My own view, and I make no bones about this, is that, subject of course to appropriate anonymisation, the presumption ought to be that leave should be given to publish any judgment in any care case, irrespective of whether the judgment has any particular interest for law reporters, lawyers or other professionals. It should not be necessary to show that there is some particular reason to justify why leave should be given in the particular case, let alone any need to justify leave on the basis that the judgment deals with some supposedly interesting point of law, practice or principle. For my own part, I should have thought that the proper approach ought to be the other way round. It is not so much for those who seek leave to publish an anonymised judgment to justify their request; surely it is for those who resist such leave to demonstrate some good reason why the judgment should not be published even in a suitably anonymised form.”[41]In 2010, in A v Ward [2010] 1 FLR 1497 the same judge (by then Munby LJ) once again expressed the same views in equally forthright terms. He said, “[133] But the law has to have regard to current realities and one of those realities, unhappily, is a decreasing confidence in some quarters in the family justice system – something which although it is often linked to strident complaints about so-called ‘secret justice’ is too much of the time based upon ignorance, misunderstanding, misrepresentation or worse. The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which, in my judgment, has to be brought into account as a very weighty factor in any application of the balancing exercise. And where the lack of public confidence is caused even if only in part by misunderstanding or, on occasions, the peddling of falsehoods, then there is surely a resonance, even for the family justice system, in what Brandeis J said so many years ago. I have in mind, of course, not merely what he said in Whitney v California (1927) 274 US 357 at 77:
‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’
I have in mind also his extra-judicial observation that, and I paraphrase, the remedy for such ills is not the enforced silence of judicially conferred anonymity but rather the disinfectant power of exposure to forensic sunlight.” ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’[42]The senior judiciary have addressed these issues out of court as well as in court. A recent illustration is the paper given by Sir Nicholas Wall P at Gresham College on 28th June 2012 under the title, Privacy and Publicity in Family Law: Their Eternal Tension. He made the point that, “There appears to be general agreement among non-family lawyers (and also among some family lawyers) that Family Proceedings should be more transparent…What is equally clear, however, it seems to me is that nobody knows quite how to achieve it…” He went on to acknowledge the problem I outlined earlier:
“The right to attend is of little value (even if the case is newsworthy) if there is no access to the court’s documentation, and doubt about what can or cannot be reported. Process is important. If the journalist is denied access to the process, and is only presented with the result, how can he or she adjudge the result to be fair, particularly when the person whose child has been removed, vociferously cries foul.”
He also acknowledged an even more fundamental problem for the media:
“There is, of course, the additional problem of the identification of cases. Gone are the days when the Press could finance a reporter in every court. It is, in my view, unacceptable that the judge should be the arbiter of which case is reported and which not. So the Press will have to be told what cases are on, when and where in order to decide whether or not to send a reporter to cover the case.”
[43]In April 2013 the current President of the Family Division, Sir James Munby, announced that he intended to take steps to improve access to and reporting of family proceedings. On 12th July, after I had heard closing submissions in this case, the President published for consultation Transparency in the Family Courts and the Court of Protection – Publication of Judgments – Draft Practice Guidance (‘the draft Practice Guidance’). The President there says that the draft Practice Guidance “is intended to bring about an immediate and significant change in practice in relation to the publication of judgments in family courts…” The draft Practice Guidance provides that: “16. In cases brought by local authorities under Part 4 of the Children Act 1989 or under the Adoption and Children Act 2002 and cases involving the personal welfare jurisdiction of either the High Court or the Court of Protection, where the judgment relates to the making or refusal of:(i) any emergency protection order, contested interim supervision order, contested interim care order, supervision order, care order, placement order or adoption order or any order for the discharge of any such order;(ii) any order authorising a change of placement of an adult from one with a family member to a home;(iii) any order arguably involving a deprivation of liberty;(iv) any order involving the giving or withholding of significant medical treatment; or(v) any order involving a restraint on publication of information relating to the proceedings, the starting point from now on is that the judgment should be published unless there are compelling reasons why it should not.” (i) any emergency protection order, contested interim supervision order, contested interim care order, supervision order, care order, placement order or adoption order or any order for the discharge of any such order; (ii) any order authorising a change of placement of an adult from one with a family member to a home; (iii) any order arguably involving a deprivation of liberty; (iv) any order involving the giving or withholding of significant medical treatment; or (v) any order involving a restraint on publication of information relating to the proceedings,

Naming the local authority

[44]The next vexed question relates to the issue of identifying the local authority. On this issue, too, Munby J has expressed very clear views. In Re B, X Council v B and Others [2008] 1 FLR 482, he said “[14] There will, of course, be cases where a local authority is not identified, even where it has been the subject of stringent judicial criticism. A recent example is Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701. But current practice shows that local authorities involved in care cases are increasingly being identified. In addition to the two cases I have already referred to, other recent examples can be found in British Broadcasting Company v Rochdale Metropolitan Borough Council and X and Y [2005] EWHC 2862 (Fam), [2007] 1 FLR 101, Re Webster;Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597 and British Broadcasting Corporation v CAFCASS Legal and Others [2007] EWHC 616 (Fam), [2007] 2 FLR 765. No doubt there are others. [18] I can understand the local authority’s concern that if anonymity is lifted the local authority (or its employees) may be exposed to ill-informed criticism based, it may be, on misunderstanding or misrepresentation of the facts. But if such criticism exceeds what is lawful there are other remedies available to the local authority. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is not of itself a justification for affording a local authority anonymity. On the contrary, the powers exercisable by local authorities under Parts IV and V of the Children Act 1989 are potentially so drastic in their possible consequences that there is a powerful public interest in those who exercise such powers being publicly identified so that they can be held publicly accountable. The arguments in favour of publicity – in favour of openness, public scrutiny and public accountability – are particularly compelling in the context of public law care proceedings: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998, at para [166]. [19] Moreover, and as Lord Steyn pointed out in R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115, at 126, freedom of expression is instrumentally important inasmuch as it ‘facilitates the exposure of errors in the governance and administration of justice of the country’. How can such errors be exposed, how can public authorities be held accountable, if allowed to shelter behind a judicially sanctioned anonymity? This is particularly so where, as in the present case, a public authority has been exposed to criticism. I accept, as the local authority correctly points out, that many – indeed most – of the matters in dispute in this case were never the subject of any final judicial determination, but the fact remains that in certain respects I was, as my judgment shows, critical of the local authority. And that is a factor which must weigh significantly in the balance: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998, at para [174].”[45]As Munby J noted, although there will be cases where a local authority is not identified even where it has been the subject of stringent judicial criticism, current practice shows that local authorities involved in care cases are increasingly being identified. That practice has continued to gather pace. This is another of the issues addressed in the President’s draft Practice Direction which provides that: “21. In all cases where a judge authorises publication of a judgment:(i) public authorities and expert witnesses should be named in the judgment as published, unless there are compelling reasons not to;(ii) anonymity in the judgment as published should not extend beyond protecting the privacy of the families involved, unless there are good reasons to do so. (i) public authorities and expert witnesses should be named in the judgment as published, unless there are compelling reasons not to; (ii) anonymity in the judgment as published should not extend beyond protecting the privacy of the families involved, unless there are good reasons to do so.

Anonymity

[46]In Lost opportunities: law reform and transparency in the family courts [2010] Child and Family Law Quarterly, Vol 22, No 3, Munby LJ (as he then was), made the point that the Court of Appeal routinely sits in public when hearing children cases and that “No harm seems to come of this, the children being adequately protected in almost all cases merely by concealing their identities.”[47]Throughout the whole of the debate about the need for greater transparency in the family courts it has been common ground amongst both proponents and opponents that the anonymity of the child must be protected. That, too, is reflected in the draft Practice Direction.[48]The omission of names and addresses from published judgments may not of itself be sufficient to guarantee absolute anonymity for the child. There is always a risk that someone who knows some of the facts may be able to identify the child. That is a risk which much sometimes be accepted. The point can best be illustrated by the decision of the Court of Appeal in Re W (Wardship: Publication of Information) [1992] 1 FLR 99. The case related to a local authority’s decision to place a 15 year old boy in the care of two male foster carers who had been in a stable homosexual relationship with each other for many years. The local authority objected to any publicity. The local authority’s concerns, the general thrust of which could be argued in many cases including the case with which I am concerned, are set out in the judgment of Neill LJ (p.101):
“It was argued on behalf of the council, on the other hand, that even if names and addresses were excluded, there was a serious risk that the article would be read by many of those who live near to, or are acquainted with, the ward and that these readers or some of them would identify the boy in the article with the ward. In that event, it was submitted, it was likely that the ward would suffer serious harm because of the reaction of those who made the identification. Furthermore, he would be likely to read the article himself and he would be seriously affected, both by the terms of the article and by his fear of the reaction of others to the article. It was said that the placement itself, which was going well, might be put in jeopardy. We were referred to the evidence of social workers who knew the ward and, in particular, to the evidence of a family therapist and child care consultant who had expressed the opinion that the publication of the article could have a ‘devastating effect’ on the ward.”
[49]Neill LJ, having reviewed the case law, extracted seven guidelines from the authorities. I set them out in full. Guidelines 6 and 7 are or particular relevance to the case with which I am concerned (p.101-102):
“(1) The court will attach great importance to safeguarding the freedom of the press. In Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109 Sir John Donaldson MR explained the crucial position occupied by the press as follows: ‘It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed, it is that of the general public for whom they are trustees.’ (2) The court will also take account of Art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is designed to safeguard the ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority . . .’ (3) These freedoms, however, are subject to exceptions, which include restrictions upon publication which are imposed for the protection of children. (4) In considering whether to impose a restriction upon publication to protect a ward of court, the court has to carry out a balancing exercise. It is to be noted, as Butler-Sloss LJ pointed out in Re M and N (Minors) (above) at pp 223 and 159 respectively, that ‘in this situation the welfare of the child is not the paramount consideration’. (5) In carrying out the balancing exercise, the court will weigh the need to protect the ward from harm against the right of the press (or other outside parties) to publish or to comment. An important factor will be the nature and extent of the public interest in the matter which it is sought to publish. A distinction can be drawn between cases of mere curiosity and cases where the press are giving information or commenting about a subject of genuine public interest. (6) 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. (7) Any restraint on publication which is imposed is intended to protect the ward and those who care for the ward from the risk of harassment. The restraint must, therefore, be in clear terms and be no wider than is necessary to achieve the purpose for which it is imposed. It is also follows that, save perhaps in an exceptional case, the ward cannot be protected from any distress which he may be caused by reading the publication himself.”
[50]That judgment was given more than twenty years ago. Since then the internet, social networking sites and twitter have transformed both the accessibility of information and the speed at which it can be accessed. When an anonymised judgment is published today “the risk of some wider identification” is it seems to me far greater than it was when Neill LJ uttered those words. Yet in my judgment such is the importance of the need for greater transparency in the family courts that that is a risk which must continue to be accepted.

Responsible reporting

[51]Before I turn to the facts of this case there is one final issue which it is relevant for me to address and that is the issue of responsible reporting by the media. As the President’s recent draft Practice Guidance makes clear, there is a need for greater transparency in the family courts “in order to improve public understanding of the court process and confidence in the court system”. Improvement in the public’s understanding and confidence will largely be dependent upon media reporting. There is, therefore, a responsibility on the media to report cases accurately and fairly. There is also a responsibility on the media to have regard to the sensitivities of the children and young people who are the subjects of their reporting and to recognise that, as this case demonstrates, the children and young people concerned may themselves become aware of what is reported.[52]Notwithstanding those last points, it is clear from the authorities that it is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish. In Re Roddy (A child)(Identification: Restriction on Publicity) [2004] 2 FLR 949, Munby J made the point that, “[89] …Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised [in Re W (Wardship: Publication of Information) [1992] 1 FLR 99] a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press.”[53]More recently, in Re Webster; Norfolk County Council v Webster and Others [2007] 1 FLR 1146, in discussing the role of the media as the eyes and ears of the general public, Munby J noted that “[33] The Strasbourg jurisprudence is to the same effect. In Bergens Tidende v Norway, at para 49, the Strasbourg court summarised its jurisprudence (citations omitted):
‘The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation….’ ‘The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation….’

The court’s approach

[54]There is now a considerable body of jurisprudence on the key statutory provisions (s 97(2) of the Children Act 1989, s 12 of the Administration of Justice Act 1960) and on the balancing of the competing interests protected by Art 8 and Art 10 of the European Convention.[55]So far as is material, s 97(2) of the Children Act 1989 provides that:
‘No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify – (a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child …’
[56]The decision of the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11 makes it clear that the prohibition contained in s 97(2) comes to an end when the proceedings come to an end. In Katie’s case the care proceedings came to an end on 22November 2012 when the Court of Appeal discharged the care order I had made on 27 July 2012. At that point the protection afforded by s.97(2) also came to an end. The Court of Appeal could have extended that protection. It didn’t.[57]In place of the care order, Katie was made a ward of court. The effect of that decision is that the only remaining automatic statutory restrictions on publication are those imposed by s 12 of the Administration of Justice Act 1960. So far as is material, s 12 provides that: “(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say – (a) where the proceedings… (i) relate to the exercise of the High Court with respect to minors… (2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.” (a) where the proceedings… (i) relate to the exercise of the High Court with respect to minors…[58]Although s.12 imposes restrictions upon discussion of the facts and evidence relating to the proceedings, it does not prevent publication of the names of the parties, the children or the witnesses. That was made clear by Munby J (as he then was) in ReB (A Child) (Disclosure) [2004] 2 FLR 142.[59]The protection afforded by s.12 is without limit of time.[60]The court has the power to relax the restrictions imposed by s.12. That is what I did when placing on Bailii an anonymised version of my earlier judgment. The rubric appearing on the first page of my judgment was in familiar terms:
‘The judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.’
The legal effect of this rubric is uncertain. That is an issue that was considered by Munby J in Re B, X Council v B and Others [2008] 1 FLR 482. At para [12] he said:
‘Lurking behind the current application there is, in fact, an important issue as to the precise effect of the rubric where, as here, there is no injunction in place. I do not propose to consider that issue. I will proceed on the assumption, though I emphasise without deciding the point, that the rubric is binding on anyone who seeks to make use of a judgment to which it is attached.’
I proceed on the same basis.[61]The parents’ application engages both Katie’s Art 8 rights and their own Art 10 rights. Although the media are not parties to this application, I proceed on the basis that their rights under Art 10 are also engaged. The court is required to balance the rights engaged under Art 8 with those engaged under Art 10. In that balancing exercise Katie’s welfare interests, though relevant, are not paramount.[62]The correct approach to that balancing exercise was set out by the House of Lords in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2004] 3 WLR 1129, [2005] 1 FLR 591, [2005] UKHRR 129. Lord Steyn (with whom the other Law Lords agreed) said that the interplay between Articles 8 and 10 has been “[17] …illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither Article has as such precedence over the other. Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justification for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test …”[63]More recently, in Clayton v Clayton Sir Mark Potter P summarised the position thus:
“[58] … each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in the terms of proportionality is carried out.”

Article 8 rights

[64]Article 8(1) provides that, “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is common ground that Katie’s Article 8 rights are engaged by her parents’ application.[65]As Neill LJ acknowledged in Re W (Wardship: Publication of Information) even when a published judgment is anonymised to protect the identity of the child who is the subject of that judgment there remains a risk that the child may be identified. Children do not live in isolation inside a bubble. For better or for worse, children live in the care of adults, often with siblings or other children who are also part of their family. They are likely to have a relationship with members of their wider maternal and paternal families. To a greater or lesser extent they are likely to be known by their neighbours. Depending upon their age they will be known by teachers and other children at school. They may be known by other professionals – doctors and health visitors, for example. They or their family may be known to the police. Their parents may have their own circle of friends and work colleagues in whom they may confide information relating to their family. So it is that every child is part of a loose network of people each of whom is likely to know something about that child’s story. These are people who are to a greater or lesser extent, in the words of Neill LJ “in the know”. Whatever the extent of the anonymisation of a judgment given in a family case in every such case there is a risk, and in some cases a significant risk, that those who are “in the know” may recognise the child who is the subject of that judgment either by reading the judgment or by reading a newspaper report of the judgment.[66]Katie last lived in Coventry the month before her 14th birthday. She has not lived in Coventry for more than two and a half years. Although she is still in contact with friends in Coventry, there is no evidence that publication of my earlier judgment or the newspaper reports which followed have led to her friends identifying her. I accept that there is a risk that further publicity may lead to Katie being identified. With respect to those who are “in the know” I assess the risk of identification as moderate to high. With respect to those who are not I assess the risk of identification as low.[67]When anonymised judgments are published it is not only those who are “in the know” who may recognise the child. There is also a risk that the child concerned may recognise herself from media reporting. The older the child the greater that risk.[68]Following the implementation in April 2009 of the rule-change permitting duly accredited representatives of news gathering and reporting organisations the right to attend most kinds of family proceedings heard in private, the Children’s Commissioner for England commissioned Dr Julia Brophy of The Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work in the University of Oxford, to undertake research on the views of children and young people regarding media access to family courts. Dr Brophy’s report, published in March 2010, found that:
“Children and young people said the press sensationalise information, or construct bold headlines that do not reflect the content of cases, and will ‘cherry pick’ bits of information. They are mostly doubtful that the press will print a truthful story and are doubtful – some cynical – about an educational function. Children fear ‘exposure’: they are afraid that personal, painful and humiliating information will ‘get out’ and they will be embarrassed, ashamed and bullied at school, in neighbourhoods and communities. This expectation is not limited to children in rural communities and is particularly relevant for those from ethnic minority communities. They also appear unconvinced about the capacity of laws and adults to protect them.”
[69]I acknowledge that a child or young person may experience embarrassment and distress as a result of knowing that details of her life story are in the public domain even the story has been anonymised. I also acknowledge that the risk of identification carries with it the potential risk of bullying, though I am not aware of any case in which that risk has materialised.

Article 10

[70]Article 10(1) provides that, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…” This application engages not only the parents’ Article 10 rights but also, even though not party to this application, the media’s Article 10 rights.[71]The court’s earlier judgment has been published. Subject to compliance with the rubric at the beginning of that judgment, it is open to the media to report the case based on the information which is already in the public domain. This present application is not to do with the media’s right to report the case but with the parents’ right to discuss the case with the media.[72]This case is about the lives of the members of a real family and about how a public authority has discharged its responsibilities towards that family. From the media’s perspective, as a human interest story there are obvious advantages in the story being told by actors involved in that story as against reliance upon the rather clinical account given by an independent narrator (the judge).[73]In this case, there are understandable reasons why these parents wish to tell their story. Those reasons are plain from my earlier judgment and do not need to be rehearsed. Throughout the whole of these proceedings these parents have behaved in a very responsible way in the face of considerable adversity. Their decision to set up PATCHES is a laudable response to what has been an exceedingly difficult chapter in their lives. They are trying to achieve something positive, something that will be of help to others, out of the ashes which remain from the hopes and aspirations they had at the time they put themselves forward as prospective adopters. They are trying to make a virtue out of a crisis and for that they are to be applauded.[74]The authorities to which I referred earlier acknowledge that parents who feel aggrieved at their experiences of the family justice system (and in my judgment that includes theirs experiences of working with local authorities) often want to speak out publicly and should be able to do so. Not only is that freedom for the benefit of parents. As Balcombe LJ said in Re W (Wardship: Discharge: Publicity [1995] 2 FLR 466 at 474), the workings of the family justice system are “matters of public interest which can and should be discussed publicly”.[75]For the local authority, Miss Moseley seeks to persuade me that even if the court gives permission to the parents talk to the media they should nonetheless be prohibited from identifying the local authority. In my judgment that submission is unsustainable. The local authority was identified in the anonymised judgment published last year. The media is therefore entitled to identify the local authority in any further reporting of the case unlessthe media is itself restrained from doing so. As I indicated earlier, the local authority made a conscious decision not to apply for a Reporting Restrictions Order.

The ultimate balancing test

[76]In undertaking the ultimate balancing test Katie’s welfare is not my paramount consideration though I accept that it is one of the issues I must take into account.[77]Katie was distressed when she was informed of the article which appeared in the Daily Mail last August. She was distressed not only by the fact of publication but also by the fact that she had not previously been told about the article and, as a consequence, by concern about what else she may not been have told. The local authority expresses concern not so much about the risk that further publicity may lead to Katie being identified or about any harm which may flow from her being identified but about the risk that knowledge that there has been further publicity may cause Katie distress and lead to further deterioration in her behaviour. I acknowledge that risk.[78]Katie’s Art 8 right to respect for her private life, both in itself and because of its welfare implications, is very important. However, that right does not self-evidently justify interfering with or restricting the parents’ right to be able to tell their story to the media or the media’s right to publish. Their Art 10 rights are also very important.[79]So far as concerns the actions of this local authority, in my earlier judgment I set out a catalogue of poor social work practice, of failure to engage appropriately with these parents, of failure to keep them informed, of arriving at hasty, ill-informed and flawed judgments about them and of marginalising them. Against that background, not only do the parents have a legitimate interest in telling their story, the public has a right to hear their story.[80]The case also raises wider issues of equal if not greater importance, particularly when seen in the context of the current public debate about delays in adoption and the shortage of prospective adopters. As I noted earlier these wider issues include, for example, the importance of providing prospective adopters with full, detailed and relevant information about a child’s background before placing her for adoption, the level of post-adoption support available to adopters of children with complex needs and challenging behaviours, the vulnerability of late adoptions to placement breakdown, the significance and impact of RAD on a child’s behaviour and the therapeutic support required by such children. These are all issues which are of genuine and legitimate public interest.

Conclusions

[81]In A v Ward at para [133] Munby LJ made the point that “The maintenance of public confidence in the judicial system is central to the values which underlie both Art 6 and Art 10 and something which…has to be brought into account as a very weighty factor in any application of the balancing exercise.” In this case I am in no doubt that the balance comes down in favour of allowing the parents to discuss the case with the media.[82]Miss Moseley seeks to persuade me that I should attach conditions to any permission I grant to the parents. I have given that careful consideration. I have come to the conclusion that the rubric set out at the beginning of my earlier judgment is sufficient. That rubric makes it plain that in any media reporting Katie, her parents and her adoptive sisters may not be identified by name or location. The additional requirement that “in particular the anonymity of the children and the adult members of their family must be strictly preserved” means that the media must take particular care not to report information not contained in the published judgment if that information may lead to the identification of Katie and her parents.[83]Miss Moseley submits, finally, that there is no pressing need for the parents’ story to be told now rather than after 18th January 2015 when Katie reaches the age of 18. The guardian urged the court to delay any permission granted to the parents until January 2014 in order to give Katie time to form a secure therapeutic alliance with her therapist. Whilst I do not accept Miss Moseley’s submissions I am persuaded by the guardian’s argument. The order I made on 21 August 2012 will be discharged with effect from 1st January 2014.

Order

Child in Voluntary Accommodation) [2012] EWCA Civ 1773, [2013] 2 FLR 63 – Lord Justice Thorpe described the case as “difficult and exceptional”. The case undoubtedly raised significant issues concerning, for example, the conduct of this local authority particularly in its dealings with the parents (whom I largely exonerated of the local authority’s criticisms of them), the importance of providing prospective adopters with detailed and relevant information about a child’s background before placement, the level of post-adoption support available to adopters of children with challenging behaviour and the impact of reactive attachment disorder (‘RAD’) on a child’s behaviour and the therapeutic support required to deal with it.

Cited in 1 later judgment