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||Neutral Citation Number:  EWCA Civ 1500
||Case No: B4/2012/2092
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Peter Jackson
||Royal Courts of Justice
Strand, London, WC2A 2LL
||19 November 2012
B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE TOULSON
LORD JUSTICE MUNBY
||In the matter of X and Y (Children)
Ms Lorna Meyer QC for the children's guardian
Mr Charles Geekie QC for the local authority
Hearing date : 2 October 2012
HTML VERSION OF JUDGMENT (AS AMENDED PARA 58)
Crown Copyright ©
Lord Justice Munby :
- This is an appeal, pursuant to permission granted by Ward LJ on 31 August 2012, from an order made by Peter Jackson J following a judgment he delivered on 19 July 2012. The order is dated 24 July 2012 and was sealed on 9 August 2012. The judge had been exercising the inherent jurisdiction of the court in relation to children.
- Appropriately, and for reasons that will shortly become apparent, Peter Jackson J's judgment has not been published. Nor, given our decision, is it likely to be. For the same reasons it is necessary for me to be very economical in my summary of the facts.
The background facts
- A parent was convicted in the Crown Court of a serious offence relating to one of the children of the family, who I shall refer to as X. The trial received extensive coverage in the local media. The parent was named. The parent's address was given. The fact that there were other siblings was reported, as also their number. None of this, I should emphasise, was unlawful. The Crown Court had not imposed any reporting restrictions and it is not suggested that anything was published in breach of any other applicable restriction.
- In the wake of the Crown Court proceedings two things happened.
- One was the undertaking by the local authority's Safeguarding Children Board of a Serious Case Review in accordance with the provisions of the Children Act 2004 and The Local Safeguarding Children Boards (Wales) Regulations 2006, 2006 No 1705 (W 167). Those Regulations, as we will see, require the Board to produce what is called an "overview report" and also an anonymised summary of the overview report. The relevant Guidance (see further below) provides that the Board should also "arrange for an anonymised executive summary to be prepared, to be made publicly available at the principle [sic] offices of the Board". The Board prepared a draft Executive Summary. Two features of this draft lie at the heart of the issues canvassed before us. First, reference was made to the proceedings in the Crown Court in such a way as would enable many readers to recognise immediately which family was being referred to and would enable anyone else so inclined to obtain that information by only a few minutes searching of the Internet. Second, it referred, and in some detail, to the fact, which had not emerged during the proceedings in the Crown Court and which is not in the public domain, that another child in the family, who I will refer to as Y, had also been the victim of parental abuse.
- The other thing was the grant by Bodey J, sitting in the Family Division, of a reporting restriction order. It was in what can properly be described as the usual form and had the effect of preventing publication of the Executive Summary.
- When the matter came before Peter Jackson J on 19 July 2012 he had evidence in the form of a witness statement from A, who is the local authority's Corporate Director of Social Services and also Chair of the Board. It is A's decision as to whether or not to publish the Executive Summary. A took as the starting point this proposition:
"The Executive Summary primarily relates to the life of X. However, the Executive Summary does provide information of the injuries sustained by Y
Even in anonymised format, I accept that without any difficulty families within the same community as the
children would easily be able to establish that it was Y who suffered those injuries".
- A then turned to explain the local authority's position:
"I have carefully considered whether in such exceptional circumstances it can be justified not to publish the Executive Summary. As Chair for SCB, I recognise the need for the Executive Summary to be published for the important lessons to be learnt and recommendations to be put in place following conclusion of the review. Also, as Corporate Director for
Social Services I consider it is essential that the Local Authority is transparent and informs the community of what went wrong in this case
It is important for the families we work with and the wider community to feel safe and protected where the issue of children's welfare and safety is concerned.
Publishing the Executive Summary will mean the family will be easily identified within the community
I am acutely mindful that it would cause further distress for Y should Y's local community and Y's peers become aware of what happened to Y
It is in the future welfare interests of the children to protect them from intrusion and to be provided information about recent incidents only from family members. The children are currently emotionally vulnerable
The publication of the Executive Summary will no doubt attract media attention and information in the public domain will spread and potentially be repeated back to the children."
- A recognised that the local authority was under a duty to protect the Article 8 rights of the children and act in their best interests. A had taken into account the relevant Regulations and Guidance. A's decision was explained as follows:
"In reaching my decision to seek variation of the Reporting Restriction Order to enable the SCB to publish the Executive Summary I have given careful consideration to the welfare of [the children]. I have also deliberated on the importance of publication for future safeguarding children arrangements across those agencies that have a statutory responsibility to safeguard and protect children and young people."
- The local authority accordingly applied to Peter Jackson J for a variation of the reporting restriction order to permit publication of the Executive Summary but, as proposed by A, with the redaction of the number, gender and ages of the children.
- Before Peter Jackson J the local authority was represented by counsel, each parent and the children's guardian by leading counsel. Various media organisations were represented by counsel who, although not present, had filed written representations. The parents and the children opposed publication of the Executive Summary in any form. The media sought a relaxation of the reporting restriction order to permit publication.
The statutory framework
- It is convenient at this point, and before turning to Peter Jackson J's judgment, to explain the relevant statutory framework.
- Local Safeguarding Children's Boards in Wales and in England are governed by separate statutory regimes. In Wales the relevant provisions are sections 31-34 of the Children Act 2004; the corresponding provisions in England are sections 13-16. Section 32 (corresponding to section 14) provides that:
"(1) The objective of a Local Safeguarding Children Board established under section 31 is
(a) to co-ordinate what is done by each person or body represented on the Board for the purposes of safeguarding and promoting the welfare of children in the area of the authority by which it is established; and
(b) to ensure the effectiveness of what is done by each such person or body for those purposes.
(2) A Local Safeguarding Children Board established under section 31 is to have such functions in relation to its objective as the Assembly may by regulations prescribe (which may in particular include functions of review or investigation).
(3) The Assembly may by regulations make provision as to the procedures to be followed by a Local Safeguarding Children Board established under section 31."
Section 34(2), as amended, provides that:
"A local authority in Wales and each of their Board partners must, in exercising their functions relating to a Local Safeguarding Children Board, have regard to any guidance given to them for the purpose by the Assembly."
The corresponding English provision is in section 16(2).
- The relevant regulations are The Local Safeguarding Children Boards (Wales) Regulations 2006, 2006 No 1705 (W 167); the corresponding English regulations are The Local Safeguarding Children Boards Regulations 2006, 2006 No 90. Regulation 4 provides, so far as material, as follows:
"(1) A Board must undertake a review (a "serious case review") in accordance with this regulation in any of the following cases where, within the area of the Board, abuse or neglect of a child is known or suspected, and
(a) a child has died, or
(b) has sustained a potentially life-threatening injury, or
(c) has sustained serious and permanent impairment of health or development.
(3) The purpose of a serious case review is to identify steps that might be taken to prevent a similar death or harm occurring.
(4) In carrying out a serious case review, a Board must
(a) ask each representative body to provide the Board with a written report of its involvement with the child who is the subject of the review, unless the Board is of the opinion that such a report is unnecessary in the circumstances;
(b) following receipt of each report referred to in sub-paragraph (a), produce a written report (referred to in these Regulations as an "overview report") that
(i) identifies steps to be taken to reduce the risk of a similar death or harm occurring; and
(ii) recommends the time by which, and identifies the persons by whom, those steps should be performed;
(c) produce an anonymised summary of each overview report and make it available for inspection at the Board's principal office.
(5) The Board must provide the National Assembly for Wales with a copy of
(a) each report provided by a representative body in accordance with paragraph (4)(a) above;
(b) each anonymised summary; and
(c) each overview report.
(6) The Board must provide each representative body with a copy of
(a) each anonymised summary; and
(b) unless the Board considers it inappropriate, each overview report."
"Representative body", I should explain, is defined in Regulation 2(1) as meaning "a body who has appointed a person to act as its representative on the Board".
- It may be noted that the corresponding provisions for England are much more limited. Regulation 5, so far as material, provides merely that:
"(1) The functions of an LSCB in relation to its objective (as defined in section 14(1) of the Act(1)) are as follows
(e) undertaking reviews of serious cases and advising the authority and their Board partners on lessons to be learned.
(2) For the purposes of paragraph (1)(e) a serious case is one where
(a) abuse or neglect of a child is known or suspected; and
(i) the child has died; or
(ii) the child has been seriously harmed and there is cause for concern as to the way in which the authority, their Board partners or other relevant persons have worked together to safeguard the child."
It is important to note for present purposes that there is nothing in these Regulations corresponding to Regulation 4 in the Regulations we are concerned with.
- Guidance was published by the Welsh Assembly Government in 2006, entitled 'Safeguarding Children: Working Together under the Children Act 2004'. For present purposes the relevant part is Chapter 10, entitled 'Serious Case Reviews'. As the Preface makes clear, Chapter 10 is issued to local authorities in Wales under section 7 of the Local Authority Social Services Act 1970 and section 34 of the Children Act 2004. Section 7(1) of the 1970 Act, as it applies in Wales, provides that local authorities "shall", in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, "act under the general guidance of" the National Assembly for Wales. Section 34(2) of the 2004 Act provides that local authorities in Wales and each of their Board partners "must", in exercising their functions relating to a Local Safeguarding Children Board, "have regard to" any guidance given to them for the purpose by the Assembly.
- The classic exposition of the meaning and effect of section 7(1) of the 1970 Act is that of Sedley J (as he then was) in Ex p Rixon (1998) 1 CCLR 119, 123:
"In my view Parliament by s.7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
Section 34(2) of the 2004 Act is less prescriptive: "must have regard to" rather than "shall act".
- For present purposes the key provisions of Chapter 10 are to be found in paragraphs 10.8, 10.32, 10.35 and 10.36. Paragraph 10.8 reads as follows:
"The purpose of serious case reviews carried out under this guidance is to identify steps that might be taken to prevent a similar death or harm occurring and in so doing, to:
- establish whether there are lessons to be learned from the case about the way in which local professionals and agencies work together to safeguard children;
- identify clearly what those lessons are, how they will be acted upon, and what is expected to change as a result; and as a consequence
- improve inter-agency working and better safeguard children; and
- identify examples of good practice."
Paragraph 10.32, so far as material, provides that:
"On receiving an overview report the LSCB should;
- clarify to whom the report, or any part of it, should be made available;
- disseminate report or key findings to interested parties as agreed
- make arrangements to provide feedback and de-briefing to staff, family members of the subject child, and the media, as appropriate;
- arrange for an anonymised executive summary to be prepared, to be made publicly available at the principle offices of the Board (consideration should also be given to publishing executive summaries more widely, including on agency internet sites);
- provide a copy of the overview report, executive summary, action plan and individual agency reports to the Welsh Assembly Government (Children's Health and Social Services Directorate or such other part of the Assembly that may be notified to Boards); and
- Provide each representative body with a copy of the anonymised summary and unless the Board considers it inappropriate the overview report."
Paragraph 10.35 provides:
"Local Safeguarding Children Boards should consider carefully who might have an interest in reviews e.g. elected and appointed members of authorities, staff, members of the child's family, the public, the media and what information should be made available to each of these interested parties. There are difficult interests to balance, among them:
- the need to maintain confidentiality in respect of personal information contained within reports on the child, family members and others;
- the accountability of public services and the importance of maintaining public confidence in the process of internal review;
- the need to secure full and open participation from the different agencies and professionals involved;
- the responsibility to provide relevant information to those with a legitimate interest; and
- constraints on sharing information when criminal proceedings are outstanding, in that access to the contents of information may not be within the control of the LSCB."
Paragraph 10.36 provides:
"It is important to anticipate requests for information and plan in advance how they should be met. For example, a lead agency may take responsibility for de-briefing family members, or for responding to media interest about a case, in liaison with contributing agencies and professionals. In all cases, the LSCB overview report should contain an executive summary that will be made public, which includes as a minimum, information about the review process, key issues arising from the case and the recommendations which have been made. Such publication will need to be timed in accordance with the conclusion of any related court proceedings. The content will need to be suitably anonymised in order to protect the confidentiality of relevant family members and others."
The corresponding Guidance in England was published in 2010, entitled 'Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children'. The relevant material is to be found in Chapter 8, but there is no need for me to refer to it further, given the significant differences between the Regulations applicable in Wales and the Regulations applicable in England.
The judgment of Peter Jackson J
Peter Jackson J went through the facts and the history of events in some detail. It is unnecessary for me to follow his example and wholly inappropriate to do so in a public judgment. All I need note is his statement that the children are and have for some time been "in a fragile situation".
Having rehearsed the applicable statutory framework and referred to the relevant Guidance, Peter Jackson J said this:
"The Local Authority has brought this matter before the Court because of the difficult interests to balance. On the one hand, its Director wishes to publish the anonymised executive summary so that it can be seen that the Local Authority is seeking to put right what went wrong and has learned lessons from X's death. On the other hand, it is conscious of the impact upon the
children of taking this step."
He the identified what he called the "key objection" as follows:
"At the present time, apart from some isolated references to them in the press, there has been no public reference to the fact that X has siblings. The key objection that is raised to the publication of the executive summary in its current form is that it discloses their existence."
As to that I merely observe that although this may reflect the way the case was presented to him, before us the key objection has been, rather, the matters I have referred to in paragraph  above.
The judge then turned to consider the law:
"The resolution of these conflicts involves a balancing exercise between the Convention rights protected by Article 10 and those protected by Article 8. These are not theoretical comparisons but comparisons that must be undertaken with a close focus on the particular facts that exist in the individual situation. Of course it is the case that the rights that arise under Article 8 are of crucial importance to a small number of people, while the rights under Article 10 are usually of broader importance to a great number of people, but what matters is the individual circumstances of the case. The authoritative treatment of this issue is that of Lord Steyn in Re S (A Child) (Identification: Restriction on Publication)  UKHL 47,  1 AC 593 in which he famously referred to the requirement for an intense focus on the respective rights, the balancing of these rights and the achievement of proportionate remedies in order to interfere with them as little as possible.
I also had in mind the judgement of the former President, Sir Mark Potter, in A Local Authority v W  EWHC 1564 (Fam) in which he observed that the decision in Re S had made it clear that the Court must be prepared to take a hard-headed and (what may appear in this jurisdiction) a hard-hearted approach. There is no presumption or precedence between the rights that are involved."
He also made clear that he had the provisions of section 12(4) of the Human Rights Act 1998 in mind.
Turning to the parties' contentions, he first considered the arguments presented on behalf of the media and, as he said, accepted by the local authority:
"[Counsel] argues that good local governance is as much a function of democracy as open justice; that transparency is of particular importance to support public confidence, particularly where it has been lacking; that the safeguarding of children is an issue of high public importance; that there have in this case been serious failings; and that it is in the public interest for those to be made known."
He said that he accepted these as being "valid and important considerations."
He then turned to consider the arguments put forward on behalf of the children. I must limit what I say. He examined the children's situation, acknowledging the concern that publication might put such pressure on the family as to destabilise the care of the children. He recorded the submission that:
"to publish the recommendations alone would satisfy the Board's responsibilities and the purpose of the review, but that the publication of the document in its current form, or indeed in a further redacted form, would be disproportionate."
"During the course of this hearing, at my invitation, the parties conducted an exercise to see whether a redaction of the executive summary might leave a document that could be published with acceptance of all. That was not possible, and accordingly a decision in principle has to be taken. However, as part of that exercise and together with the parties, there has been discussion about the content of the review and the extent to which it could be altered to the benefit of the children."
He then addressed an important question:
"In the course of argument, I asked for assistance from the parties as to what is the purpose of putting an executive summary of a serious case review into the public domain. The answer on behalf of the family was that it enabled the public to know that the matter had been investigated, that lessons had been leant and put into effect, but when I asked the question "Lessons about what?", I did not receive an answer that I found persuasive."
His answer was as follows:
"In my view, the purpose of the provisions requiring the publication of an anonymised executive summary is to inform those outside the immediate circle of knowledge of what has been done in a way that can be understood. That, of course, does not mean that there will not be circumstances in which such a summary cannot be published because of the pre-eminent rights of others, and in particular of other children, but the suggestion that in this case (and I think in almost any other) a summary can be produced which consists merely of recommendations about disembodied events which are not described completely neuters the purpose of the process. The object is not simply to inform professionals, but also the wider public, most likely through media outlets, and so I am of the view that those who are arguing for no publication or publication in an unidentifiable form understate the importance of the serious case review process and the purpose of it being made public where possible."
The judge explained his conclusions in a passage which I should set out in full:
although the publication of an executive summary in some form has the potential to create difficulties for the
children, that potential can be significantly reduced by the manner in which the report is drafted. There are (as I discussed with counsel during the course of this hearing) a large number of obvious ways in which the profile and identity of the
children can be lowered, but their existence cannot, in my view, be eliminated from the review because a review which refers only to events in relation to X and excludes any references to previous difficulties within the family, would, in my view, be unsatisfactory and misleading in the circumstances of this case.
Set against that are the very real concerns about the welfare of these children. Having carefully considered the written arguments on all sides, and had the advantage of further submissions from those parties represented before me, I have nonetheless come to the conclusion that the correct balance to be struck in this instance is for the Court to give the Local Authority, on behalf of the Safeguarding Board, an opportunity to present an executive summary that takes into account the significant amendments considered during the course of the hearing, in order to identify the fact that there are other children but to say little or nothing about who they are or how old they are. I recognise that this may bring problems for the family, but I will hear submissions from the parties in relation to another important matter, which is the timing of the release of the documents, requiring as it does an amendment to the existing Court Order. I am of the view that there should be something of a pause at this point to allow the publicity
to die down somewhat, and to give the family the opportunity to prepare for the publication of this further report.
It may very well be that the focus following the publication of a report of this kind will fall far more upon the authorities than it will upon the family, but even taking account of the alternate possibilities, in my judgement, the balance falls in favour of a carefully controlled and limited publication
The situation of any children in these circumstances is unenviable, but in the circumstances of these particular children
I have to take into account not only their interests but also the wider public interest in reaching the decision that I have made."
Following delivery of his judgment the judge was invited to clarify it. He declined to do so.
The order giving effect to his judgment inserts into the reporting restriction order a proviso permitting the publication of the Executive Summary in redacted form (see further below). In substance the redaction is of the number, gender and ages of the children. Although his order does not make this explicitly clear, Peter Jackson J accepted an assurance from the local authority that it would not seek to publish the redacted Executive Summary before 29 October 2012. On 24 October 2012 we made an order at the parties' request extending the moratorium.
Permission to appeal was sought from the judge. He refused. An appellant's notice was filed by the children's guardian on 13 August 2012. Permission, as I have said, was granted by this court on 31 August 2012.
The appeal came on for hearing before us on 2 October 2012. The children's guardian was represented by Ms Lorna Meyer QC, the local authority by Mr Charles Geekie QC. None of the other parties was represented, although both parents had filed documents, in one case a solicitor's letter and in the other a skeleton argument prepared by counsel, indicating their support for the guardian's appeal. Solicitors acting on behalf of the media interests had written indicating their clients' view that the order made by Peter Jackson J was appropriate and achieved the right balance between the public's legitimate right to know whilst still protecting the children.
We did not think it either necessary or appropriate to sit in closed court. But conscious that unless appropriate reporting restrictions were put in place a sitting in open court might defeat the interests of justice and render the appeal moot, and anxious that counsel should not feel inhibited in their submissions because we were sitting in open court, we made an order pursuant to section 4(2) of the Contempt of Court Act 1981 that there be no reporting of the oral argument before us.
There was no dispute before us as to the principles that have to be applied in a case such as this. They are to be found authoritatively set out in the speech of Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593. Reference can usefully also be made to the subsequent judgment of Sir Mark Potter P in A Local Authority v W, L, W, T and R (by the Children's Guardian)  EWHC 1564 (Fam),  1 FLR 1. Two key principles articulated by Lord Steyn (para ) are that neither Article 8 nor Article 10 has as such precedence over the other and that "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."
I need not refer in detail to any of the other authorities to which we were referred, for it is not suggested that Peter Jackson J misunderstood the law or that he directed himself otherwise than appropriately. We were taken to passages in Campbell v MGN Ltd  UKHL 22,  2 AC 457 (see Baroness Hale of Richmond at para ), and In re Guardian News and Media Ltd and others  UKSC 1,  2 AC 697 (see Lord Rodger of Earlsferry JSC at paras , ), pointing out that there are different types of speech, some of which are more deserving of protection than others; distinguishing between publication of material which contributes to a debate of general interest and publication of material which is simply intended to satisfy the curiosity of a particular readership regarding the details of someone's private life; and recognising the higher degree of protection afforded to material in the former category. Plainly, in the present case, we are concerned with material of that kind.
I should, however, briefly mention the important decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4,  2 AC 166, in which particular emphasis was given to the binding obligation, arising under international law, and placed on all public bodies (including the court), to have regard to the need to safeguard and promote the welfare of children and to recognise that the best interests of the child, as Article 3.1 of the United Convention on the Rights of the Child puts it, "shall be a primary consideration". (The point is not entirely novel because, although often overlooked, section 44(1) of the Children and Young Persons Act 1933, which is still in force, provides that "Every court in dealing with a child or young person who is brought before it, either as
an offender or otherwise, shall have regard to the welfare of the child or young person".) Reference was made in particular to the observation of Baroness Hale of Richmond JSC at para  that:
"In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations."
The decision in ZH is plainly of profound importance, both for its articulation of a general principle and because of its potentially highly significant impact in a very wide range of forensic and other contexts. In this particular context, however, where Re S had already emphasised the need for an intense focus on the article 8 interests of the child, its practical impact is likely to be more limited.
The parties' contentions
For reasons that will be apparent I am limited in what I can say about the detail of the parties' submissions before us. I can, however, identify the broad thrust.
For her part, Ms Meyer submitted that Peter Jackson J, although directing himself correctly in law, had in fact failed to apply the proper approach and was plainly wrong in his ultimate conclusion. She submitted that he had failed to provide the intense focus on the children's interests demanded by Lord Steyn in Re S and failed adequately to heed what had been said in ZH. As a separate point she submitted that the judgment was inadequately reasoned: the judge, she said, had failed to set out in his reasoning the justification for concluding that the children's interests should give way to publication. Her more specific complaints were three-fold.
First, while recognising (correctly) that the publication of the Executive Summary in its un-redacted form was not justified, the judge failed to identify how the amendments he proposed would in fact be adequate to achieve the desired objective. Publication in this form would in fact, she submitted, represent an unwarranted and disproportionate interference with the children's and their family's article 8 rights.
Second, the judge failed adequately to consider and give proper weight to the risks and consequences to the children and their family of publishing the Executive Summary even in its redacted form. In this connection Ms Meyer was careful to emphasise precisely what it was that the guardian feared. Two strands in particular were of importance. First, although the children have been told about what had happened to Y, this has been done very carefully in an appropriately child-centred way and by means of a very carefully prepared 'family script'. If the Executive Summary is published, as the judge decided it should be, with the account of these matters presented, as they will be, in a less child-focused way, the children will suffer from the inevitable media reporting which, however responsibly it is presented, is likely to be extremely upsetting to them. The second point is even more important. The information about Y, as I have said, is not yet in the public domain. If the Executive Summary is published in the form authorised by the judge, this will have two damaging consequences for the children, and particularly for Y: they will have to live with the realisation that a painful part of their intensely private family history has now been exposed to the world and his wife; and this public knowledge of what has hitherto been private may well expose Y in particular to unkind treatment or worse at the hands of other children at school or others in the local community. This was linked in with A's evidence and the judge's findings as to the fragility of the children's current situation.
Third, the judge failed to consider whether what was needed was a more drastic form of redaction.
For his part, Mr Geekie submitted that Peter Jackson J was right for the reasons he gave and that we cannot interfere. His starting point was that the statutory scheme in Wales creates an expectation that the Executive Summary should be published, albeit of course subject to appropriate anonymisation. He pointed to A's evidence about transparency and public accountability. He accepted, as was accepted before the judge, that there are "powerful reasons" why the children should be protected from identification and that the risks to their welfare are "particular and acute" in their "fragile situation". But, he said, an analysis of the judgment shows that the judge had all these factors very much in mind, that he correctly understood the task facing him, and that, having correctly undertaken the necessary 'balancing exercise', he had come to a decision that cannot be faulted. The judge, he submitted, was assiduous in balancing the competing interests before him and never lost focus on the interests of the children.
Both Regulation 4 and the Guidance provide that the Executive Summary should be made available for public inspection. Paragraph 10.32 of the Guidance contemplates other forms of publication. So, there is a strong emphasis on publication, both so that the Safeguarding Children's Board may communicate its findings to the public, in Article 10 terms may "impart information and ideas" to the public, and so that the public may be made aware of those findings, in Article 10 terms may "receive" such information and ideas from the Board.
At the same time, Regulation 4(4)(c) and paragraph 10.32 of the Guidance contemplate that what will be made available to the public is an "anonymised" summary, that is, to adopt the dictionary meaning of the word, a summary made anonymous by the removal of names or identifying particulars. The rationale for this is explained in paragraphs 10.35 and 10.36 of the Guidance, which refer respectively to "the need to maintain confidentiality in respect of personal information contained within reports on the child, family members and others" and the need for anonymisation "in order to protect the confidentiality of relevant family members and others"; in Article 8 terms to ensure "respect" for their "private and family life".
Paragraph 10.35 refers explicitly to the fact that there are "difficult interests to balance". A number of them, including those I have mentioned, are identified.
For present purposes what is clear is that the statutory scheme recognises the need to balance the various Article 10 and Article 8 rights in play and indicates that the balance is to be struck by (i) publishing, (ii) an Executive Summary, (iii) appropriately anonymised. The statutory scheme is plainly Convention compliant; indeed carefully crafted to accommodate the familiar Strasbourg 'balancing exercise.'
In each individual case careful thought will need to be given to two separate questions: first, whose identities require to be anonymised; and, second, what degree of anonymisation is required.
Not everyone will be entitled to anonymity, particularly if their involvement is already in the public domain. For example, anonymisation of the identity of a child's killer may not be required if the killer has been convicted and there are no other adults or children in the family whose legitimate interests will be prejudiced by publication. On the other hand, it will be a rare case where the identity of a living child is not anonymised.
In some cases the requisite degree of anonymisation may be achieved simply by removing names and substituting initials. In other cases, merely removing a name or even many names will be quite inadequate. Where a person is well known or the circumstances are notorious, the removal of other identifying particulars will be necessary how many depending of course on the particular circumstances of the case.
All this said, the statutory scheme contemplates, and compliance with the Convention requires, that what is published must be anonymised to such extent as is necessary I use the word in its familiar Strasbourg sense to protect the Article 8 interests of the relevant children, family members and others. Peter Jackson J was therefore correct to contemplate (see the passage from his judgment set out in paragraph 26 above) that there could be circumstances where the Article 8 claims are so dominant as to preclude publication altogether, though I suspect that such occasions will be very rare. For the reasons he gave, it is less than satisfactory if all that can be published is recommendations about disembodied events, but even that, which I would anticipate as being rarely required, must be better than publishing nothing.
It follows, in my judgment, that, albeit from their different perspectives, both the local authority and the media were right to emphasise the public interests in publication which they had correctly identified. So too was Peter Jackson J. I agree with the approach he adopted in the passage in his judgment that I have set out in paragraph 26 above. In this connection I should refer to what Lord Steyn said in R v Secretary of State for the Home Department ex p Simms  2 AC 115, 126:
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market": Abraham v United States (1919) 250 US 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country" (emphasis added).
I also agree that Peter Jackson J correctly summarised the law in the passages in his judgment I have set out in paragraph 23 above. But I have concluded after anxious consideration that the way in which, at the end of the day, he struck the balance was plainly wrong.
The point is a short one. The starting point, as I have already observed, are two key features of the draft Executive Summary: first, the reference to the proceedings in the Crown Court and, second, the reference to the fact that Y had also been the victim of parental abuse. Publication of these two matters needed to be balanced against the children's fragile situation and what the judge properly described as the "very real concerns" about their welfare.
The judge recognised, correctly, that the draft Executive Summary in the form in which it had been presented to him required redaction. It was at the next stage of the analysis that, in my judgment, he slipped into error. The redactions he required were in substance confined to three matters: the number, the gender and the ages of the children. But how did the removal of this information address the difficulty presented by the two key features of the draft, namely, the reference to the proceedings in the Crown Court and the reference to the fact that Y had also been the victim of parental abuse, given that what was said about the proceedings in the Crown Court would, as I have said, enable many readers to recognise immediately which family was being referred to and would enable anyone else so inclined to obtain that information by only a few minutes searching of the Internet?
It does not seem to me that Peter Jackson J ever really grappled with this fundamentally important problem. Be that as it may, and as Ms Meyer complains, he certainly did not identify how the redactions he proposed would in fact be adequate to achieve the desired objective. That is perhaps unsurprising. For the reality is that the proposed redactions are wholly inadequate to remedy the correctly identified problem and to achieve the desired objective.
The problem is that summarised by Ms Meyer. Here were children in a fragile situation about whose welfare the judge had "very real concerns". If the Executive Summary is published in the form authorised by the judge, the children will suffer from the inevitable media reporting, which is likely to be extremely upsetting to them. The children, Y in particular, will have to live with the realisation that a painful part of their intensely private family history has now been exposed to the world and his wife. And this public knowledge of what has hitherto been private may well expose Y in particular to unkind treatment or worse at the hands of other children at school or others in the local community. None of the proposed redactions will render these consequences either less likely or less damaging.
The simple fact in my judgment, as Ms Meyer correctly submitted, is that a more drastic form of redaction than that approved by the judge is required is necessary in the Strasbourg sense if the balance between the public interest in the publication of the Executive Summary and the private interests of the children is to be struck properly and appropriately.
To this extent, therefore, the appeal must in my judgment be allowed.
It is not for the court whether this court or the judge at first instance to embark upon the consequential task of considering whether, and if so in what form, the Executive Summary should be published after further redactions have been made. That is a task imposed by the statutory scheme upon the Safeguarding Children Board; in the present case upon A. In the first instance, therefore, it will be for A to consider the possibility of further redaction. At that point, the matter will have to return to court, of course, so that the court can determine what, if any, amendment to the reporting restriction order is appropriate. We invited counsel to consider the best way forward. In particular, we said, they might wish to consider whether any further application to the court to enable the court to examine whatever proposals A may formulate, should be made to this court or at first instance, and if the latter whether to Peter Jackson J or to another judge. Having read their helpful submissions on the point, I think that any such application should be made to Roderic Wood J, the judge who currently has responsibility for the children.
Before parting with this case there are two other matters to which I wish to draw attention.
The first relates to the form of the order made by Peter Jackson J. The relevant paragraph for present purposes provided, by way of exception to the injunctions contained in the order, that:
"Nothing in this Order shall prevent any person from
publishing the anonymised Executive Summary of the Serious Case Review carried out in relation to [name] and dated July 2012 (this Court having secured assurances from the [local authority] in relation to the form of the Summary and its date of publication)."
This form of order is thoroughly objectionable, for it leaves wholly unclear precisely what document it is that may be published and, consequently, what the intended ambit is of the injunction.
It is an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing. The authorities setting out this sometimes overlooked principle are legion. In Harris v Harris, Attorney-General v Harris  EWHC 231 (Fam),  2 FLR 895, , I set out what I said was a no doubt selective anthology. Here I can content myself with what Lord Westbury LC said in Low v Innes  EngR 337 (1864) 4 DeGJ&S 286, 295296: the order must
"lay down a clear and definite rule
should, in granting an injunction, see that the language of its order is such as to render quite plain what it permits and what it prohibits."
The principle has been endlessly repeated down the years since.
A related principle is that an order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. In Ellerman Lines Ltd v Read  2 KB 144, 157, Atkin LJ said:
"That judgment when drawn up, instead of reciting what the order of the Court was and what the defendants were restrained from doing, only refers to continuing an injunction granted by Rowlatt J, varied by Roche J, and continued by Greer J, without stating what it is that the Court was ordering the defendants to abstain from doing. That appears to me to be very bad practice
It is a matter of very great importance that the orders of the Court
should make it quite clear what the Court is ordering to be done. There is considerable laxity in this matter
Practitioners and the officers of the Court should see that orders are not passed unless they are in proper form."
In Rudkin-Jones v Trustee of the Property of the Bankrupt (1965) 109 Sol Jo 334 the order as drawn read "It is ordered that an injunction be granted in the terms of Notice of Motion for Injunction". Lord Upjohn said:
"I do want to protest as strongly as I can at the granting of injunctions in that form. It means then that the person against whom the injunction is granted
has to look at another document in order to see what it is that he is enjoined from doing
It cannot be too clearly understood
that a person is entitled to look and look only at the order to see what it is that he is enjoined from doing. He looks at that order and finds out from the four walls of it and from no other document exactly what it is that he must not do."
In the present case matters were even worse. When we inquired of counsel which was the authentic text of the document referred to in the order they were unable to give us any very confident response. Since the hearing they have investigated the matter very carefully, for which I am grateful. This involved an analysis of a number of emails passing between the parties and between the parties and the court: the first on 23 July 2012 and the last on 31 July 2012. What that analysis reveals, as set out in an agreed note by Ms Meyer and Mr Geekie dated 4 October 2012, is that as at 31 July 2012 "the local authority had declined to accept one of the judge's proposed amendments" (email timed at 15.39), that it was "not altogether clear whether the judge was directing that his amendment should stand" (counsel's comment on email timed at 16.11), that the local authority then "proposed further amendments" (email timed at 16.56) but, as counsel observe, that "their status is not clear from the judge's response" (counsel's comment on email timed at 17.29). The next relevant event was the sealing of the order in the form I have described on 9 August 2012.
I appreciate that all this was happening on the last day of term, but the upshot is that even now, even the lawyers immersed in the litigation are unable to state with confidence what precisely it is that is permitted by the order. It is, in my judgment, a wholly unacceptable state of affairs. It is intolerable that a layman who risks imprisonment a reporter, perhaps, or a newspaper editor wishing to publish some document which he may think is of public interest and importance should be left to decipher an order of the court in this way, especially if, when seeking enlightenment, he turns to the local authority who obtained it only to be told that even they are not sure.
There is a perfectly simple remedy. If the order, having referred to the document, then contains words to the following effect
"being the document entitled [etc] marked 'X' and initialled by the judge a copy of which is annexed to this order"
there will be no doubt as to what it is that the order prohibits and permits. Nor, importantly, will there be any doubt that the document annexed to the order is indeed in the form approved by the judge.
The other matter is this. Increasingly, as a consequence of the devolution settlement, family law in Wales differs from family law in England, either because there are different Statutory Instruments or on occasions which I suspect are likely to increase because the primary legislation is different. Sometimes this is largely a matter of form; sometimes, as here, it is a matter of substance. For another example, in the context of the 'leaving care' regime, compare R (J) v Caerphilly County Borough Council  EWHC 586 (Admin),  2 FLR 860, and R (G) v Nottingham City Council and Nottingham University Hospital  EWHC 400 (Admin),  1 FLR 1668.
It would be of great assistance if, in such cases and as a matter of practice, advocates brought to the attention of the court the fact that there is such a difference and were able both to identify the corresponding provisions applicable in the other country and, at least in summary, to indicate the nature of the differences between the two regimes. This is not to encourage judges to make pronouncements obiter dicta on legislation which is not before them. But it may facilitate understanding of the legislation which is under scrutiny. And, importantly, it will alert practitioners reading a law report of such a case from the other side of Offa's Dyke to appreciate that the law with which they are concerned in the case in hand may not in all respects be the same as the law applied in the reported case.
Lord Justice Toulson :
Lord Justice Pill :
I also agree and wish only specifically to express agreement with the contents of the last two paragraphs of the judgment of Munby LJ.
The legislative powers available to the Welsh National Assembly and the executive powers available to the Welsh Government are now such that divergences between the law of England and the law of Wales are likely to increase in number and in scope. This has already occurred in family law in some aspects of which the Law Commission has acknowledged the need for separate legislation for Wales to meet Welsh aspirations expressed by the Welsh authorities. There are also significant divergences in areas of public law and some divergences in other areas of law.
Munby LJ has cited, at paragraph 14, regulation 4 of The Local Safeguarding Children Boards (Wales) Regulations 2006 which places duties on a Board more extensive than those imposed in England. In this, and other areas of the law, parties and practitioners will need to be alert to bring to the attention of the court the law of that part of the jurisdiction of England and Wales which applies to the case in point.
In this case, no reference has been made, or was required to have been made, to the Welsh language texts of the Regulations. By virtue of section 156 of the Government of Wales Act 2006, both Acts of the Assembly and subordinate legislation, which is both in English and Welsh when they are enacted or made, are to be treated for all purposes as being of equal standing. The need for comparisons may in practice be rare but the possibility that the Welsh words may throw light on the proper construction of the English words, and vice versa, cannot in all cases be excluded.
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