Westminster City Council v H [2017] EWHC 1221 (Fam)

[2017] EWHC 1221 (Fam)Case No FD1600365
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 19 May 2017
Strand
LondonWC2A 2LL
Before
MR JUSTICE HAYDEN
Between
WESTMINSTER CITY COUNCILApplicantM, F & HRespondentAssociated Newspaers Limited
Transcription byJohn Larking Verbatim ReportersSuite 305, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HPTel: 020 7404 7464; www.johnlarking.co.uk
MR C POOLE appeared for Local AuthorityMS S BRADLEY (instructed by Bindmans LLP) appeared for First RespondentMS SARAH MORGAN QC & MR S MOMTAZ QC (instructed by Goodman Ray Solicitors) appeared for Second RespondentMS S KING (instructed by Freemans Solicitors) appeared for Third RespondentMS J BROWN (instructed by CAFCASS Legal) appeared for GuardianMR D BROWNE QC & MR WOLANSKI appeared on behalf of Associated Newspapers Limited.

JUDGMENT APPROVED

[1]I am concerned in this case with H, who is only weeks away from his 16th birthday. On the 16th March 2017 I handed down a judgment in which I analysed the basis upon which the ‘threshold criteria’ were met pursuant to s31 (2), Children Act 1989. The Judgment is in the public domain, reported at [2017] EWHC 518 (Fam). On the 26th April 2017 I heard submissions in relation to a planned move for H to MCU. The evidence pointed overwhelmingly to such a move being in H’s best interests. It needs to be emphasised that H is at the centre of this process. The proceedings are driven by an imperative both to identify and promote his welfare needs.[2]The Judgment of the 16th March is detailed. There were 40 lever arch files of medical records which were the subject of comprehensive submissions by counsel and which required to be addressed fully. In the final paragraph of that judgment, I set out, in unambiguous terms, my conclusions in relation to the evidence.[3]I found, firstly, that the parents had misreported and exaggerated H's medical symptoms. I concluded that this had led not only to his emotional harm but to his physical harm. In consequence, particularly of the exaggerated gastrointestinal pain, there was the unnecessary insertion and thereafter the prolonged use of a Hickman line, which exposed H not merely to the risk of short-term infection, but to the risk of liver failure in the long term. It perhaps requires to be underlined that in consequence of his parents' actions H's life was placed in peril.[4]I went on to find that the mother, through bullying and bombastic behaviour, had intimidated medical professionals and others to the extent that she confused and undermined their confidence in their own professional judgement. In the hospital it generated a febrile atmosphere in which there was an elevated risk of clinical error, I found this compromised H's safety.[5]In particular, and this requires perhaps to be emphasised too, in April 2016, on the most compelling of evidence, I found that both parents had, on separate occasions, tampered with H's TPN pump. The effect of this, though it did not immediately threaten H’s health was, again, to cause confusion and alarm on the ward and jeopardise professional objectivity.[6]The father has both directly and passively acquiesced in the mother's distorted perspective of H's health and medical needs. The mother presented H to the world as dying, in extremely alarming e-mails. Moreover, on the evidence, she inculcated in H himself, a view that he was dying. The parents' actions led to prolonged stays in hospital, the consequence of which was that H has been robbed of much of his childhood and teenage years.[7]This is of course a desperate situation made all the more depressing by the fact that H has an outstanding, lively, irrepressible intellect and a keen and zany sense of humour. It is a tragedy that these talents have not been allowed to flourish and grow as they ought to have been. I reiterate, in order that the point is not lost in the detail of my judgment, the harm caused to H by his parents, protracted over many years, exposed him to significant harm at the most serious end of the spectrum, ultimately risking his life.[8]To begin to disentangle both the physical and emotional impact upon H of these years is a very significant challenge and, despite proactive intervention, the local authority have struggled to find a unit which they considered to be suitable. Initially, all that was available was ‘Unit A’ which I shall not name as there are other vulnerable young people living there. From the very beginning nobody thought that it was a facility that would be sufficiently equipped either to assess or evaluate the complex panoply of H's needs.[9]During the course of the substantive hearing it emerged that H, whilst not eating food, was buying sweets and enjoying them. I caused it to be checked with the doctors whether H could eat orally now and I have been told that he can. Staff at Unit A did not have the medical qualifications to make such an assessment. The social services have been advised that H should be tempted by foods that he is interested in and encouraged, in consultation with a dietician, to try to eat. This has not yet been achieved. Again, this is not part of the training or experience of those who work at Unit A.[10]H has been provided with education, which he plainly enjoys and is stimulated by. He amuses himself intellectually and socially by his extensive use of social media. It is his ‘lifeline’, as he has told me directly, and he is bitterly resentful of it being taken from him, even for the few weeks of the assessment contemplated in the unit.[11]H has a stoma. It is in my judgment indicative of the extent to which the parent’s own agenda overwhelms the social services capacity to focus on H’s needs that we simply do not yet know whether the stoma is reversible. H now wants to know the answer to this and it will be one easily resolvable issue now that he has moved to the MCU.[12]The mother, for complex reasons, has a powerful and deep-seated resistance to the Great Ormond Street Hospital (MCU). As I explained in my judgment of 26th April, when I sanctioned H's removal, this plan was designed to facilitate a proper assessment of H’s identified needs, both physical and psychological. Furthermore, there were no alternative options available. I exhorted both parents to support H in that move because he was understandably apprehensive, picking up, I find, chiefly on his mother's own anxieties. I should record that from what I have read, and indeed from what I have heard today, the father has made some efforts, which will not have been easy for him, to encourage H in the move. If I may say so, I am very pleased to see it.[13]Earlier this week I received a request, to visit H myself. This is still a relatively unusual course, particularly where the young person is a party to the proceedings having been assessed by his very experienced legal team to be competent to instruct them. However, with the agreement of all the advocates, I visited H at the unit. It was very plain that H was anxious, to say the least, about going to Great Ormond Street. I spent, it is recorded, fractionally more than an hour with him. I add my voice to the many others. I found him delightful, stimulating and very good company, with a wide range of interests. His central preoccupation was, of course, his access to the outside world via the Internet. The restrictions contemplated are very hard for him to bear. I am entirely satisfied that they are necessary, not least because they are the route by which H can communicate with his mother, who is, as I have said, so extremely resistant to this assessment and to the MCU. Moreover, because the assessment itself is multidisciplinary and wide ranging it requires to be undertaken in a calm and cooperative atmosphere and for H this will likely be more constructive away from the endless stimulation that the Internet brings.[14]The case came before me on 17 May. There were some important issues to address, which need not be read into this judgment. They are private to H's life and circumstances. Later that afternoon, voluntarily(my emphasis) and not without some hesitation, H was able to go to the MCU and did not resist. A private ambulance which had previously been engaged on a number of days and abandoned, was booked for 17 May and waited whilst I spoke to H. The schedule was pushed further and further back and in consequence there was not time at the hospital for the contact to take place, as had been envisaged, between h and his parents. But H had asked me if I would hand his mobile telephone to his father so that he could be assured that his contacts, et cetera, were not lost. I gave him that assurance.[15]I was informed during the course of the hearing, by the local authority, that it suspected that a reporter from The Daily Mail had visited H in ‘Unit A’ on 8th May. That reporter, I was told, was thought to be a Ms Sue Reid, though the visitor book bore an inscription that a Susan Odette Brown, recorded as ‘a friend’, had visited that day. I indicated to the local authority that they should make inquiries to establish such facts as they could. In pursuance of that, they drafted the following questions which were relayed to The Daily Mail. They are succinct questions and they are responded to with equal clarity. They require to be set out:
"Do you (i.e. The Daily Mail) employ or commission a journalist called Sue Reid or Susan Odette Brown? Answer: yes." "
Did this journalist visit [the unit] on 8 May 2017 or at all? Answer: Yes. What was the purpose of this visit? Answer: Miss Reid has confirmed that she visited in order to see H and see his social situation. How was the visit arranged?" The response was as follows:
"A campaign group alerted Miss Reid to H's living arrangements and asked her to pay him a social visit. H's parents also wanted Miss Reid to visit him and accordingly they passed on H's mobile phone number. Miss Reid rang the number and spoke to H, who invited her to visit him and gave her a suitable time to do so."
The final question was framed thus:
"Did you have permission to talk to H, a young person aged 15, and if so who gave you permission? Answer: Yes, H and his mother."
[16]These questions had in mind the protection afforded to young people and particularly to those who are vulnerable, by the Codes of Practice (2016), Independent Press Standards Organisation (IPSO). It is convenient that the relevant guidance be set out here:
“Clause 8 protects patients in hospitals and similar institutions from intrusion. It requires journalists to identify themselves and to obtain permission from a responsible executive to enter non-public areas. The clause applies to all editorial staff, including photographers. The clause covers the newsgathering process, so the Code can be breached even if nothing is published. The clause also requires that, when making inquiries about individuals in hospitals and similar institutions, editors need to be mindful of the general restrictions in Clause 2 of the Code on intruding into privacy. Of particular relevance is: 17. Identification and permission 18. Journalists must clearly identify themselves and seek permission from a responsible executive to comply with the Code. The use of the term “executive” implies that permission can be obtained only from a person of sufficient seniority. A journalist who attended a London hospital after the 19. Canary Wharf terrorist bomb photographed an injured victim in the company of a relative and another person who he thought had obtained permission from hospital staff. 20. When medical staff complained, the PCC found the Code had been breached. It said: “The Commission was not persuaded the reporter in this particular case had followed the provisions of the Code: it was not enough to assume that his identity was known or to rely on the comment of an individual who was clearly not a responsible executive, although the reporter had done so in good faith.”
Hutchison v News of the World: www.pcc.org.uk/cases/ adjudicated.html? article =MTkwMA 21. What the Code says i). Journalists must identify themselves and obtain permission from a responsible executive before entering non-public areas of hospitals or similar institutions to pursue enquiries. ii). The restrictions on intruding into privacy are particularly relevant to enquiries about individuals in hospitals or similar institutions. A public interest exemption may be available. 24. Non-public areas 25. In most cases, what constitutes a non-public area will be clear and will certainly include areas where patients are receiving treatment. 26. See: Stamp v Essex Chronicle: www.pcc.org.uk/cases/adjudicated. 27. html? article=NzMyMA 28. A man v Daily Mail: www.pcc.org.uk/cases/adjudicated. 29. html? article=MjA3Nw

Of particular relevance is:

[17]The code purposefully set a strong objective to safeguard children. The following requires emphasis : Clause 6 Children The Code goes to exceptional lengths to safeguard children by defining tightly the circumstances in which press coverage would be legitimate. For the most part, this applies up to the age of 16 – but the requirement that pupils should be free to complete their time at school without unnecessary intrusion provides a measure of protection into the sixth form. In the absence of a public interest justification, pupils cannot be approached at school, photographed or interviewed about their own or another child’s welfare, or offered payment, unless consent is given by the parent or guardian. The welfare of the child includes the effect publication might have. A complaint from an asylum seeker was upheld after a newspaper interviewed and identified some of his children. The PCC said the article was likely to provoke a strong reaction in readers, which might affect the children’s welfare. Kenewa v Sunday Mercury: www.pcc.org.uk/cases/adjudicated. html?article=MTgyMg There is a public interest defence available to editors, but here again the bar is raised in favour of protecting children and the Code states that “an exceptional public interest” would need to be demonstrated. What the code says i) All pupils should be free to complete their time at school without unnecessary intrusion. ii) They must not be approached or photographed at school without permission of the school authorities. iii) Children under 16 must not be interviewed or photographed on issues involving their own or another child’s welfare unless a custodial parent or similarly responsible adult consents. iv) Children under 16 must not be paid for material involving their welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child’s interest. v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life. A public interest exemption may be available. See Page 96. Consent The press has to establish which is the competent authority to grant consent in each case. See: A woman v Derby Telegraph: www.ipso.co.uk/rulings-andresolution- statements/ruling/?id=01866-14 Brecon High School v Brecon and Radnor Express: www.pcc.org. uk/cases/adjudicated.html?article=MjA2Ng18. In order to advance their own explanations, the parents both filed statements in which the broad thrust of the answers given by The Daily Mail were or appeared to be disputed. It has been necessary for me today to inquire as to what in fact led to the visit, which all agreed took place, between Ms Reid and H at the unit on 8th May.19. As the evidence has unfolded it has funnelled into a very narrow area of agreement and disagreement. Today there were filed, on behalf of Ms Reid, a number of e-mail communications, which have been helpfully set out by Mr Browne QC and Mr Wolanski, who represent her through Associated Newspapers Limited. A key communication is an e-mail sent at 18:30 on 6th May by H’s mother to a Miss Miray Kester, whom she describes as a friend. It is clear from that email and the earlier discourse that it was intended to provide a summary of H’s situation from the mother’s own perspective. It is, characteristically, a gross distortion of the facts. It presents H, in melodramatic terms, brutalised and neglected by the system. Yet again the mother describes H as suffering from serious illness. As those reading my earlier judgment will appreciate and as time has now borne out, H is not suffering from any serious illness. Those conditions which he does have are not seriously debilitating.20. It is unnecessary for me further to burden this judgment with the details of the email communications because a number of factors are clear. Firstly, I am satisfied that, in the context of the email communication as a whole, the email I have referred to above was written by the mother as a briefing document for the press. The document, which I do not propose to read into this judgment, speaks for itself. Secondly, Ms Reid obtained H's telephone number and spoke to him directly before she spoke to the mother. This she agreed in evidence. Thirdly, Ms Reid later spoke to the mother on the telephone and the conversation lasted some 40 or so minutes. In that conversation Ms Reid plainly formed the view that the mother was at her wits' end, very distressed and agitated. Much of the content of the e-mail of 6th May seems to have been replicated in that conversation, which Ms Reid agrees took place.21. The mother asserts that the move to the unit is a tragedy for her son. As she puts it, it is ‘a violation of his human rights’. She refers to his ‘being locked away’ and she caricatures it as a focus on ‘mental disorder’ rather than the contemplated across the board evaluation of his needs that I have described. This is all deep-seated, the mother has been hostile to Great Ormond Street now for many years. It was very much a feature of her evidence in January and February of this year. The mother denies giving Ms Reid permission to speak to her son. However, she says: had this journalist asked me directly if she could have permission to speak to my son, I would have said yes. But, she says, ‘it was never asked’.22. It is plain, having listened to the mother's evidence and Ms Reid's evidence, that the mother not only was enthusiastic about H having an opportunity to meet a journalist but never at any point in the conversation gave Ms Reid even the slightest suspicion that she had the remotest anxiety about it. The mother is highly manipulative, as Ms Reid has now plainly found out. I think it unlikely that she gave her express permission but I am quite clear that she enthusiastically contrived with Ms Reid to facilitate the interview. Ms Reid told me, and I accept, that the mother gave her the address and details of the unit.23. In her evidence Ms Reid told me that she would "never trust anybody again", by which she explained she meant those who organise and promote particular causes and agendas. This struck me as a somewhat bizarre observation from a journalist of Ms Reid’s seniority. She is the ‘Special Investigations Editor’ for the Daily Mail. I should have thought that a healthy degree of scepticism would underpin everything she does.24. The facts are now, as I see it, uncontroversial. Ms Reid went to Unit A. She did not make herself known to the staff. She did not identify herself as a journalist and she did not seek permission from a responsible executive to enter these non-public areas. It is also clear and again she accepts that she was aware that H was subject to a Care Order (in fact it is an Interim Care Order but that is of no consequence here).25. I have been referred to Re W[2016] EWCA Civ 1140 and in particular to the observations of McFarlane LJ at para 95: Where, during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a witness consideration should be given to the following: a) Ensuring that the case in support of such adverse findings is adequately 'put' to the relevant witness(es), if necessary by recalling them to give further evidence; b) Prior to the case being put in cross examination, providing disclosure of relevant court documents or other material to the witness and allowing sufficient time for the witness to reflect on the material; c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or representation for the witness. 96. In the present case, once the judge came to form the view that significant adverse findings may well be made and that these were outside the case as it had been put to the witnesses, he should have alerted the parties to the situation and canvassed submissions on the appropriate way to proceed. One option at that stage, of course, is for the judge to draw back from making the extraneous findings. But if, after due consideration, it remains a real possibility that adverse findings may be made, then the judge should have established a process that met the requirements listed in paragraph 95 above. 26. I have undertaken this enquiry primarily to understand the extent to which the mother was prepared to go to defeat H’s move to the MCU. In the process of that investigation it has been necessary to resolve a conflict in evidence between Ms Reid and the mother. When put to the assay the extent of the conflict narrowed considerably enabling me to get the clear picture that I have set out above. At the conclusion of the evidence Mr Poole, on behalf of the local authority, indicated that he did not press for a finding that F was involved in arranging Ms Reid’s visit to H on the 8th May 2017. Nor did Mr Poole submit that F had any prior knowledge of the visit. Mr Browne also confirmed that Ms Reid did not contend that F was involved in the arrangements in any way. 27. Whilst I am satisfied that the process has been sufficiently fair for me to have made findings in relation to breaches of the IPSO code, I do not consider it to be necessary to do so. It is neither the purpose or function of this court to make such findings. This is a matter for IPSO. I go no further than indicating that it is the responsibility of H’s Guardian to refer this matter to the Code of Practice Committee. Mr Browne urges me to go no further than this, he is right to do so. Post script. 28. I delivered this judgment ex tempore late in the day on the evening of the 19th May 2017. I have corrected and amended it in line with the principles of Piglowska v Piglowski UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1360.