Stuart Black & Anor v Kaspars Kalvans & Ors [2023] EWHC 3610 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved

[2023] EWHC 3610 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Tuesday, 12 December 2023

Strand

London, WC2A 2LL

IN THE MATTER OF THE ADMINISTRATION OF JUSTICE ACT 1960

AND IN THE MATTER OF THE CHILDREN ACT 1989

Before

MR JUSTICE WILLIAMS

Between

STUART BLACK

INTA ROMANE Applicants

KASPARS KALVANS

SURREY COUNTY COUNCIL

THE CHILDREN

(through their children’s guardian)

Respondents

__________

THE FIRST AND SECOND APPLICANT appeared in Person. for in person

for THE FIRST RESPONDENT did not appear and was not represented.

MALCOLM CHISHOLM COUNSEL (instructed by The Legal Department) appeared for Second Respondent.

MS HOLLAND (Solicitor) appeared for Third and Fourth Respondents.

__________

JUDGMENT

[1]I will give an attenuated judgment which can be transcribed and subjected to further supplementation, in particular in relation to the legal framework but also in terms of the analysis if it is requested for any purposes and if it is thought that the ultimate outcome is insufficiently clear. I am not intending in this judgment to add to the jurisprudence by anything I say in relation to the previously decided cases. I am aiming to apply what is already an extensive body of law in this field. Given the unique circumstances of the application before me, i.e. in my view a fact-specific case, it does not require the extension of existing legal principles established in first instance, appellate and Supreme Court cases.

[2]I am particularly conscious in this case that very, very extensive work has gone into the preparation for the hearing, which was scheduled for yesterday and today. The documentation itself reflects the care that has gone into it by everybody and I am conscious that the decision certainly which I am giving now in the course of perhaps an hour and a half this afternoon will be a poor reflection of that very considerable effort and that this analysis, will not reflect the work which went into the statements, the guardian’s analysis, the analysis of the documents, the traffic-light analysis which runs to some 60-odd pages, and the many, many pages of skeleton arguments and position statements that have been put before me by Mr Black and Miss Romane, by Surrey and by the guardian.

[3]I am genuinely grateful for the huge effort which has been put into the preparation of the case. I think in order to have fully explored all of the material which had been considered by the parties and to have fully aired all of the submissions on fact-specific issues relating to documents, but also on the correct approach in law, we could have given this easily five days perhaps not including judgment writing. As I say, trying to distil the essence of all of that immense effort into a decision involves a very considerable cutting down of the material in order to try to reach what I think is the essence of each party’s case and the outcome of the ultimate question with which the court is engaged.

[4]Part of the effort arises from the fact that the application dates back as long ago as 11 July 2022. My involvement in the case dates back to 2017, when Daniels, Kristians and Gabriela first came into view in this court, following the tragic death of their mother and in the context of Miss Romane and Mr Black having stepped into the role of carers. After a quite protracted process, which had its own ups and downs, we reached a conclusion that Miss Romane and Mr Black would become the special guardians for the three children.

[5]I think it is fair to say that within that process, in those undulations or ripples, perhaps they were more than ripples - waves occasionally - there were quite different approaches taken by the local authority, by Miss Romane and Mr Black, and by the guardian to certain aspects of that. As I considered at the time, those were all entirely appropriate approaches in the context of an unusual, if not unique, case.

[6]Interestingly those differences in perspective re-emerged six years later in the formulation of the submissions in this case. Mr Black and Miss Romane said in their application in July 2022:

“We wish to apply to relax the restrictions contained in s.12 in the Administration of Justice Act 1960 to allow Stuart Black and Inta Romane to write a book describing their experiences during the case and to discuss their experiences openly with others.”

They said they are making the application because, “We want to tell our story”. They anticipate it to be a book but possibly other media:

“… describing our experiences during the case and to discuss our experiences openly with others. The reason for telling our story is to highlight the experience that we had, raise awareness of the issues that kinship carers experience and tell the truth about an experience that caused us as a family enormous anxiety, strain and anguish.”

They go on to explain that they think that “such a book could help others who encounter similar issues and could inform policy makers and practitioners”, saying that they consider there is a significant public interest in fostering a public understanding of the experience of kinship carers.

[7]The fact that it is a matter of interest to the public - but also of public interest - is demonstrated by the fact that a part of the story of the family has already been published in any event in a magazine and a newspaper. That is also relevant to some extent in that the story of the family is, to a degree, already in the public domain.

[8]Mr Black and Miss Romane ultimately sought the complete removal of the restrictions imposed by s.12 of the Administration of Justice Act in order to give them a free hand to write about, or talk about their experiences without any imposition on what they could say and what documents they could refer to, reproduce or otherwise put into the public domain. I say without any prohibition by that I refer to a court imposed or Parliament imposed restriction, which s.12 obviously is, because Mr Black and Miss Romane intend, quite clearly, to prohibit themselves from publishing everything even if they had a free hand. They recognise, in particular, that there are issues relating to the children which should not be put into the public domain because of the risk of harm to the children that that would carry.

[9]The very detailed schedule illustrates the extent to which Mr Black and Miss Romane have been prepared to engage with the local authority’s legal team, with the guardian and the guardian’s legal team, to identify parts of the material which can properly be put into the public domain and those which it is agreed should not be put into the public domain not just for reasons of the children’s best interests but for other factors which I will return to.

[10]In closing submissions, Mr Black, in effect, although maintaining his preference for a complete removal of the s.12 restriction, acknowledged that there was an interplay between the extent to which information can be put into the public domain and the role of the court in being arbiter of that on behalf of the competing interests to those of Mr Black and Miss Romane. I think his ultimate position was a preference for a free hand.

[11]The local authority’s position has again been one of considerable engagement in the issues and an informed and pragmatic engagement in the issues, because they have not sought to maintain a complete ban on publication. They have sought to strike a balance in which they acknowledge the right of the applicants to tell their story including sensibly, it seems in my view, not seeking to maintain anonymity of senior professionals who were engaged in the process. But, at the same time, identifying both that the children have an interest that needs to be protected but also that child protection procedures have an interest which is engaged and needs careful consideration.

[12]The guardian and the guardian’s legal team have also, it seems to me, taken a pragmatic and appropriate stance in seeking to, again, recognise that there is a story that can properly be told, but balancing that with the guardian’s role as protector of the children’s interests within court proceedings and prioritising the protection of the children from anticipated risks relating to material going into the public domain.

[13]As far as the court is concerned each party has approached the case in a measured and pragmatic way, seeking to find an outcome which struck the right balance - that each of the parties would end up in a slightly different end product of the balance is hardly surprising. It has been an intensely difficult exercise and has been an intensely time consuming exercise to reach the balance that each party has. Trying to draw all of those differing evaluations into one, extracting from them the rights which are engaged and attributing weight to them is ultimately the task for the court under the framework which the court is obliged to apply.

[14]When I first came across Gabriela, Kristians and Daniels they were probably about five, six and 15 perhaps. They are now 11, 13 and 21. They have had the opportunity to have their say in this process. The guardian, spoke to Kris and Gabby and elicited their views, which are set out in his report. In this case Daniels was given the opportunity to participate and write a letter, which he did not take up, but he conveyed his views to a degree through Mr Black and Miss Romane. The children's father has been given the opportunity to participate but has not done so.

[15]Daniels’ position is in broad terms relaxed about what is published about him. Gabby is in broad terms in favour of a publication but clearly wants, as she described to me this morning, “private information” or “private details” to remain private. Kris was less forthcoming both to the guardian when he saw him and also to me when I saw him this morning. Broadly speaking, he understands what is proposed and he does not mind it being published.

[16]They are young children still. They are moving into adolescence. Their views are of importance to me but they are not, as they might be with older or mature children, of really conclusive weight. They are far from determinative. I think in this case they informed the picture rightly so, but I do not think they can have an appreciation really of how important the book might be in public interest terms, but nor can they have a true appreciation of what the consequences might be for them. I think their ability to identify some items of particular concern to them demonstrates that they are able to identify to some degree the sort of information which really would cause them embarrassment if it was in the public domain. I have little doubt that theirs was an accurate gauging of that. Whilst their views must be given weight and their voices must be rightly heard, it is only a component in the ultimate exercise which the court is undertaking.

[17]Each of the parties’ written documents contain an extensive analysis of the legal framework in which not surprisingly, having regard to their perspective, each draw to my attention particular aspects of the jurisprudence which promotes their arguments in the most effective way. I will draw all of that together in a more detailed analysis which will go into the written judgment if required. But the starting point is self-evidently that which Parliament has put in place under s.12 of the Administration of Justice Act, together with s.97 of the Children Act and the Family Procedure Rules 12.73. The accompanying provisions and tables provide a starting point in proceedings relating to children under the Children Act or in the inherent jurisdiction that puts in place a cloak of confidentiality.

[18]The move towards greater transparency does not alter the statutory framework, but it does influence the formulation of the court’s approach to the comparative weighing of the Art.10 and Art.8 rights. Ultimately what the court has to do is to apply is, as Lord Steyn would say:

“… an intense focus on the comparative importance of the specific rights being claimed in the individual case.”

In this case in particular, it is Art.8 and Art.10. The focus for us is on that because the case has been completed. In other cases where applications are made to report in the court of ongoing proceedings Art.6 rights will also be of relevance, but in this case it is primarily the Art.8 and Art.10 rights which are engaged. Both rights are subject to qualification in order to protect the rights of others in effect. But in a case such as this where the court is in a position to make a determination after the conclusion of proceedings, the court is not constrained by Art.6 considerations but is able to carry out a purer weighing of the Art.8 and Art.10 rights where neither has precedence over the other. To the extent that anything has precedence in these evaluations, it is the rights of the children to have their welfare considered as a primary consideration. That does not give it determinative weight. It means that the weight of other considerations could override the children’s welfare in practice; conceivably the pure Art.10 rights could outweigh the pure Art.8 welfare rights of a child in a particular case. But the court must take their welfare as a primary consideration and then look at the competing rights which are contended for.

[19]When looking at risks to the children which bear upon their welfare and their Art.8 rights, the court must, insofar as it can, undertake that intense focus on the type of risk that is involved, how likely it is to happen and what the likely consequences might then be. By carrying out that exercise the court’s decision on weight is an informed one. Of course, in relation to the balance between Art.8 and the risks to the children, and Art.10, there is a difference in the ability of the court to weigh those rights because the risks to the children lie in the future, by and large.

[20]In a case such as this, it may be that the court can draw from previous publications or previous events which might inform the nature of the risk; for instance, in this case, the featuring of the children in Bella magazine or in the Daily Express. This has not, as far as the evidence available to the court shows, resulted in any adverse consequences for the children. In this case there is therefore some material which informs the risk assessment and makes it not an entirely speculative undertaking, but there is also clearly in a risk assessment of this type which is future looking, and is potentially covering the period of, ultimately, the children’s entire lives an element which is not grounded in the experience of this family but in what can be inferred from the courts experience. The period with which the court is most concerned is their minority, covering five to seven years, and how the court approaches the evaluation of that risk is less based on established facts but on assumptions that the court can and should properly make, as it does in any risk assessment.

[21]The Art.10 rights, on the other hand, are crystallised broadly speaking, and had Mr Black and Miss Romane perhaps not chosen to issue the application but to have gone ahead and published in any event, material might already be in the public domain, albeit they would have faced the risk of contempt. They sensibly put it before the court, but their Art.10 rights to express themselves exist in the here and now and any restrictions on that right are of immediate consequence.

[22]Of particular consideration in this case has been, and the particular focus of the book engages it in a way which gives it considerable significance, that child protection processes are built on a foundation of trust and confidentiality where professionals, in order to promote the welfare of children in specific cases but also more generally, must feel free to express themselves within those processes. An approach to disclosure of documentation which emanates from that and indeed the processes, the forms, the protocols which will play a part in that, is important to the effectiveness of child protection procedures. The taking of steps which has the potential to undermine the ability of all of those who are engaged in that and to undermine the frankness with which they share information or views is something which needs to be approached with very considerable care. There are already too many sad cases where failure or inability to share information can have tragic consequences. Therefore, I do not take lightly the impact on child protection processes that untrammelled publication might have.

[23]Having said that there is a countervailing argument, which ultimately is accepted in any event in this case by the local authority and the guardian, that those who are engaged in those processes, or journalists, should have the ability to report on them in order to ensure that they are not secretive and in order to assist in the development of better processes. Where one draws the line is, of course, the difficulty that the court has to determine.

[24]The ultimate decision of whether to extend, relax or remove the s.12 restrictions arises from an evaluation of the respective Art.8 and Art.10 rights, with the Art.3 UNCRC rights of the children to have their welfare considered as a primary consideration. The risks on the Art.8 side must be weighed as carefully as possible according to the type of risk involved, how likely it is to happen, and what the likely consequences might then be.

[25]In undertaking the evaluation, this court is not an editor. It cannot descend into the detail of every document. It is neither its function in considering s.12, nor is it a proportionate use of court time in this case. In a case such as this, the court can and should undertake the balance and make decisions which are capable of being translated to effective action on the ground for the parties. But it should not - in this case, and in any other case, result in a toing and froing from court to argue additional points on particular documents, or anything else. That inevitably means that the court must deal in broad brushstrokes rather than in fine detail.

[26]It will inevitably leave a degree of imprecision which in practice will leave, in the hands of the party publishing, a degree of discretion or latitude as to what is covered by the court’s broad determination in a case such as this. The evidence of the care which Miss Romane and Mr Black have put into the preparation and the extracts, which have been read to the court today, enables me to say that I have faith in Mr Black and Miss Romane’s ability to work within those parameters in a way which promotes the children’s welfare.

[27]I trusted Mr Black and Miss Romane when I made the special guardianship order and in the five years since, that trust appears to have been well placed. From what I read about the children - and in particular from the guardian’s report and the feedback from schools, and from what I have seen myself today these children are prospering in the care of Miss Romane and Mr Black. I do not feel much discomfort in handing over the reins to Mr Black and Miss Romane, subject to the framework which I will identify.

[28]As I identified at the outset, this is an exceptional case. Counsel and Mr Black have been able to identify previous decisions relating to publication, which by and large have arisen from journalists wishing to report, with some from parents who perhaps have been unsuccessful before the courts wishing to pass comment on the process and their experience. But for a family who have successfully negotiated the court process, to have emerged with an order and a special guardianship support package which promoted the maintenance of the placement of the children with Mr Black and Miss Romane is unique. As I said earlier, this means that it is a highly fact-specific decision that this court is ultimately reaching.

[29]The fact that Mr Black and Miss Romane are successful applicants for a special guardianship order and successful special guardians of the children is highly relevant, both to the nature of their rights but also to the weight to be attributed to them. They, as individuals, have their Art.8 rights to tell their own story and it is a story of considerable public interest and of interest to the public. Their role as successful special guardians with parental responsibility for the children means that their evaluation of the impact on the children is of significant weight, to be considered alongside that of, in particular, the guardian who has the special function of promoting the children’s interests in these proceedings.

[30]The fact that the applicants wish to publish their story for the purposes of informing the debate on kinship carers is, it seems to me, also relevant in terms of weight. It is a positive purpose. Although the court does not have an editorial function, it seems to me that the authorities make clear that the purpose which underpins the Art.10 right to freedom of expression is relevant. But in this case the Art.8 right to tell their own story adds to the weight which is to be attributed to that side of the equation. An application underpinned by a wish to publish a diatribe against the system would still be a legitimate Art.10 right to freedom of expression, but would likely carry less weight in the process than in this case the motives underpinning the application. The nature of the application and the nature of the applicants in this case are of relevance.

[31]The fact that there had been a very detailed enquiry has a number of advantages in this evaluation. First of all, it has resulted in a considerable measure of agreement such that what the court has had to adjudicate upon has been more narrowly confined and identified by the parties. As I mentioned earlier, the extent of the consideration has demonstrated a careful, sensitive and methodical approach of the applicants and respondents which makes the court’s function an easier one. Whilst I may not be able to refer to every argument, submission, analysis, extract that had been referred to (in Part Z of the Bundle) in the traffic-light table, it enables me to have confidence that the issues which have been identified as requiring adjudication, and the nature of the arguments I have received, as it were, the full light of enquiry and exploration by the parties. For me, extrapolating from that is a more reliable evaluation than would have been the case had that exercise not been undertaken by the parties themselves.

[32]As I mentioned earlier, the perspectives of the parties influence their decisions and how they characterise the balance. That does not mean that they have not engaged with all of the issues that inevitably colours the emphasis of their submissions. Mr Black and Miss Romane focus on their right to be trusted as holders of parental responsibility and their right to tell their story as individuals. The local authority has certainly today, broadly speaking, laid a heavy emphasis on maintaining the integrity of the child protection process. The guardian has focussed on minimising the risk of harm to the children from publication. Those are all entirely legitimate emphases to adopt.

[33]Another unusual feature of this case is that this is not an application to publish where information relating to either the children or the adults is at the upper end of the spectrum of sensitivity or privacy in which many of these applications might take place. This has happily not been a case which has involved sexual, physical or emotional abuse, where the material generated by the proceedings would be profoundly personal and sensitive. This is a case arising out of a tragedy which led to the court making public law interim orders and then, ultimately, special guardianship orders because of the tragic death of the children’s mother and their father’s inability to position himself so as to look after them.

[34]Of course, the case itself generated for these individuals, the adults and the children, material which is quite properly from their subjective perspective, and from the analysis of the guardian (a quite proper analysis), personal, sensitive and private. But it is material which on the spectrum of sensitivity, is very much at the lower end of it in which some aspects of their mother’s condition are highly sensitive but much of it is not. On the spectrum it is towards the lower levels.

[35]The court ultimately has to stand back from all of the emphases the parties place on particular issues and try to find a balance which provides appropriate protection for the children from publication, and maintains the integrity and effectiveness of child protection processes within the court proceedings framework and upholds the applicants’ Art.8 rights to tell their personal story and their Art.10 rights to express themselves on facts about their lives and their views on what they went through and how things could be improved.

[36]The parties’ documents resulted in the identification of themes at my direction, broadly speaking, which I will now turn to. The Threshold

[37]The differential between the parties on this is now relatively limited and the threshold that I found in my judgment was based on the fact that neither parent was able to care for the children and so they were, in broad terms, beyond parental control. The book will be able to make clear the nature of that conclusion. It was nothing to do with the children’s behaviour. Most of the cases I have dealt with involving beyond parental control have been children or young people who have demonstrated behaviour which was beyond parental control. But in this case it is a distinct category and it clearly does need to be refined to make that clear.

[38]The local authority have proposed a form of wording in para.15 of their skeleton argument, which seems to me to be a suitable expression. This would be an appropriate reframing or formulation of that. To leave it unclarified would be to create a risk of Kris, Gabby and Daniels being identified as children who had behavioural issues, which they do not. I think that Mr Black and Miss Romane would adopt a formulation which would broadly align with what the local authority have suggested anyway if there were a dispute about the precise wording. My preference would be for the para.15 wording.

[39]The children's background with their mother and father: I believe that the position now is broadly accepted that there is no intention to provide the detail of particular incidents. Mr Black has provided a form of wording in his most recent position statement which acknowledges that the children, for reasons which need not be gone into, had not had a relationship with their father for some time.

[40]It is hard to comprehend quite how profound the impact must have been on Kris, Gabby and Daniels of losing their primary carer, their mother, when she died suddenly in hospital.

[41]But I think there is enough there for us to know that even without that, the death of the mother would be profoundly impactful psychologically on them for the rest of their lives, and to combine that with other matters seems to me to inevitably mean that they are vulnerable children, however well they appear to be doing, and they do appear to be doing very well in the loving care of Miss Romane and Mr Black. They are vulnerable children and so the greatest of care has to be taken in relation to this sort of information, which given that their journey, therapeutically at least. has been fractured in dealing with the consequences of their paths. There is a huge amount of benefit to a loving household.

[42]Dr Tizzard recommended therapeutic support and Mr Black and Miss Romane still acknowledge that the children - perhaps when they are ready for it - would benefit from further psychological support. But I say that to illustrate no criticism of Miss Romane or Mr Black in making it available to them, but simply that I do not think one should underestimate how sensitive the children might be to what appear to us who have not experienced it to be perhaps innocuous or relatively low-level facts. But one has to be very careful with them. As I say, ultimately the position of Mr Black and Miss Romane on the historical material is that it is not going in, and I think that view of the children’s welfare is the right one and reflects the sensitivity of the children to this sort of material. It reflects what I would assess to be the risk to them.

[43]But it is difficult to predict precisely what might be harmful for them and the extent of the harm. But what one can say in broad terms is that there is strong evidence from the previous psychological assessments and from what Mr Black and Miss Romane say about them and from the guardian’s evaluation, that one needs to be very careful with these children not to inadvertently trigger a reaction. The formulation that Mr Black and Miss Romane have adopted, and indeed their confirmation of how the children’s welfare has been impacted on is front and centre of their thinking, is an important safeguard. Ultimately the reassurance that the children will see a clinical psychologist to explore the possible impact of the book in its final draft form is an appropriate safeguard for Mr Black and Miss Romane to implement. If the local authority are able to help through the adoption support fund in funding that, then that seems to me an appropriate use of those funds in this sort of case.

[44]A significant category of documents is the documents which are the product of Social Services Child Protection processes in the form of the so-called LAC reviews, fostering panel minutes and multiagency assessment meetings. The protection of the integrity of those processes falls within the exceptions to Art.8 and Art.10 in that restrictions can be placed for the protection of health or morals, or otherwise, and so it is legitimate to take that into consideration. As I indicated earlier, it seems to me that if one identifies three potential uses of those documents; one being reproduction in whole; the second being the quoting of extracts from them; the third being discussion of them from the applicants’ perspective, I can readily identify that the need to promote the integrity of the child protection process is to ensure that they remain effective in the future for the children generally, which means that reproduction of such documents is not permissible. I cannot see any competing Art.8 advantage which would outweigh maintaining that integrity.

[45]In relation to quoting directly from them, the weight to maintaining the integrity of the process still remains very considerable. But I think in relation to one particular issue which is engaged in this case, the possible ending of the children’s placement with Miss Romane and Mr Black, that is both central to the focus of the book and was an issue of very considerable concern at the time. In relation to documents which refer to the possible removal of the children, it seems to me that the Art.8 and Art.10 rights outweigh the integrity rights over that category of minutes. It seems to me that reference to cut and paste extracts from such documents would be referrable to.

[46]In terms of the discussion of those sorts of documents, there ultimately is no disagreement as to that being an appropriate conclusion within the book, and I agree with that. It would emasculate effectively the Art.8 right to tell their story and the Art.10 freedom of expression right to not be able to comment on the process and the approaches which were taken. As it happens, the extracts which Mr Black has read out from the book, which he did not have to do but has, reassure me that the sort of references which he is talking about are appropriate references to make. He may be critical of the approach of Social Services in some respects but that is within his Art.10 rights. There was nothing which I heard in his extract which would suggest that the integrity of the child protection procedures would be unduly affected by publication of extracts in that category of cases.

[47]In relation to medical information, or medical assessments which are covered by the psychological assessment and play therapy, the children’s right to preserve things that they said and did, and the conclusions that were drawn from the play therapy or the psychologist’s report, would fall into the category of personal and private information. Mr Black has said that it is not his intention to publish in terms of the contents of Dr Tizzards’ report or the contents of the play therapist, and that, I suppose, is as good an indication that one gets that he and Miss Romane are in agreement that the detail of such reports would not be appropriate for publication. But the fact of psychological assessments having been carried out and the fact of play therapy having commenced, with my encouragement during the proceedings, similarly are part of the story that can legitimately be told. Again, Mr Black read out an extract of the reference to the process of getting the psychological report, which seemed to me to be entirely appropriate in its references. Subject to parts of the reports not being reproduced, the contents of the children’s engagement with the psychologist and the play therapist not being detailed, the fact of those occurring under circumstances in which they were initiated, and other commentary on their effectiveness or otherwise seem to me to be legitimate and so they can be included.

[48]The naming of professionals is agreed on the basis of Mr Black and Miss Romane’s position that social workers, for instance below a social work manager, will only be referred to by first names.

[49]The reference to other third parties such as family members, including, the stepfather, it does not seem to me that what is said about them is such as to give much Art.8 traction to their right to privacy or confidentiality. The fact that they were involved in a family group conference, or that he was the children’s stepfather - to use a loose expression - and the mother’s partner are referred to in the documents, seem to me to be of relatively light weight. They are part of the family and if Mr Black and Miss Romane consider it appropriate to name them, so be it. From the point of view of the amount of correspondence landing on Mr Black's email, it would be more advisable to refer to “the mother’s partner” or otherwise, but I do not think that is a matter for me to rule upon. I think that falls within the editorial discretion of Mr Black and Miss Romane rather than me.

[50]The issues around Daniels. Again, I think Mr Black and Miss Romane’s approach is that they recognise that and it aligns with my own evaluation of what the children’s interests would be in maintaining this sort of confidential, sensitive information. Commentary can be made on what occurred as a result of it and disputes which arose out of it, or differences of opinion, without mentioning the fine detail.

[51]The contents of statements made by Mr Black and Miss Romane are a matter, it seems to me, for them to the extent that they want to put them into the public domain with the proviso that it does not encroach upon the disclosure of the sensitive and private information which emerges from the other issues which I have deal with.

[52]The concern expressed by the guardian’s team, Miss Holland, about the extent to which these proceedings can be subject to reporting. I have no doubt that it is a legitimate matter of public interest to comment on the process that we have adopted in this case, and the respective approaches which have been taken in the case it is appropriate to report on. The guardian and Miss Holland are concerned as to the extent to which the contents of the guardian’s report are reported upon.

[53]This is an area which troubles me more than I expected it to, because I understand the concern for a guardian in a case like this and consequently for the children. The guardian absolutely has to be free to formulate and express their views in a way which is unstinting and unhesitating in promoting their formulation of the children’s best interests; that is their function and it is of primary importance that that is done. On the other hand, in this case, I do not think the contents of the report fall into a category where reporting what the children said, or what the guardian’s interpretation of that was and how that sounded in the approach to this court, is of a nature which, in itself, would give rise to a concern that in future children or guardians might hold back, or be inhibited in the way they approach these sorts of cases.

[54]Going back to the general factorisation of material relating to the child protection, which I dealt with earlier, the guardian’s report on the face of it would fall into that sort of category and so comment on it is legitimate on any level. Reporting what was said in it in relation to the children’s views, I think it also legitimate. It is part and parcel of the children's approach to the publication of the book. In relation to the risk assessment and his evaluation, I see no difficulty with commentary on it. On balance, I do not approve of cutting and pasting any extracts from it. But the contents of it, in terms of the children’s views and commentary on the general approach taken to risk assessment, is, it seems to me, legitimate.

[55]Coming back to one of the principal issues, which I have left until the end because it seemed to me appropriate to deal with the other matters first, is the question of whether the children should be anonymous in the book. The guardian has issued, quite properly, an application to extend the s.12 restriction to maintain anonymity if the court felt it appropriate to do so. On the basis of all that I have said before and what thus is likely to be, in broad terms, the nature of the publication which will not trespass on the private and sensitive details of the children’s history, it seems to me that, in fact, the right to name them and to make them part of the story by name is the right way to go. Their names are already in the public domain through the other articles anyway.

[56]Section 12 does not prohibit the naming of the children in an order and I do not think in the context of the ultimate publication, which is envisaged under the scheme, which I hope I have got close to setting out, that there will be harm to them of a sort which requires them to be anonymised. In fact, the evidence insofar as it exists about publication in the Daily Express and in Bella magazine does not suggest a degree of spotlight is harmful to them. There are actually also some benefits to them to be able to say, “This is our story”. The balance for that, to me, falls in favour of being able to name them in order for them to play a full part in the telling of this story. Their rights to be protected from harm are adequately addressed by the scheme which I am aiming to create.

[57]I expect that there are other matters which I have either not adjudicated upon or which will require further clarification in order to convert this into what I aimed for at the beginning, which is a framework which allows Mr Black and Miss Romane to publish and identify some clear red lines, as it has been put, which will not be crossed. But where, if there are uncertainties, it will fall to the discretion of Mr Black and Miss Romane to hold as the parents with responsibility and who I trust to have the children’s best interests before their own or anybody else, as being the ultimate arbiters of that uncertainty. 58. __________ CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital ** This transcript has been approved by the Judge **