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England and Wales High Court (Family Division) Decisions
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Cite as:  EWHC 4048 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
|In the matter of P (A Child)|
Hearing date: 13 December 2013
Crown Copyright ©
Sir James Munby, President of the Family Division :
Events since 1 December 2013
There have been lengthy legal proceedings in this case over the past 15 months.
- Mother detained under Section 3 of the Mental Health Act on 13 June 2012
- Application by the Health Trust to the High Court 23 August 2012
- Application for Interim Care Order 24 August 2012
- Mother took part in the care proceedings ending on 1 February 2013
- Mother applied to Italian Courts for order to return the child to Italy in May 2013. Those courts ruled that child should remain in England
- In October 2013 Essex County Council obtains permission from County Court to place child for adoption
The Health Trust had been looking after the mother since 13 June 2012 under section 3 of the Mental Health Act. Because of their concerns the Health Trust contacted Essex County Council's Social Services.
Five weeks later it was the Health Trust's clinical decision to apply to the High Court for permissions to deliver her unborn baby by caesarean section because of concerns about risks to mother and child.
The mother was able to see her baby on the day of birth and the following day. Essex County Council's Social Services obtained an Interim Care Order from the County Court because the mother was too unwell to care for her child.
Historically, the mother has two other children which she is unable to care for due to orders made by the Italian authorities.
In accordance with Essex County Council's Social Services practice social workers liaised extensively with the extended family before and after the birth of the baby, to establish if anyone could care for the child.
Statement on behalf of Essex County Council
"The long term safety and wellbeing of children is always Essex County Council's priority. Adoption is never considered until we have exhausted all other options and is never pursued lightly.""
"ordered that the matter be transferred to the High Court and any further application in respect of the child be heard by [me]."
After hours on the same day, 2 December 2013, I made two orders. In accordance with my direction they are dated 3 December 2013. The first, in the Court of Protection, was in the following terms:
"IT IS ORDERED by the President of the Court of Protection of his own motion that any further applications in these proceedings or relating to the [mother] are reserved to and are to be listed before and heard by him."
The other, in the Chelmsford County Court, read as follows:
"IT IS ORDERED by the President of the Family Division of his own motion that:
(a) these proceedings and any further proceedings relating to [P] that may be issued in the Chelmsford County Court are to be transferred to the Family Division of the High Court of Justice forthwith; and
(b) any further applications in these proceedings or in any future proceedings relating to [P] are reserved to and are to be listed before and heard by him."
"Re P (A Child)
Yesterday afternoon (Tuesday 3 December 2013) an application by telephone was made to the President of the Family Division, Sir James Munby, by leading counsel on behalf of Essex County Council seeking a 'without notice' reporting restriction order prohibiting publication of the name and date of birth of the child and the names of the child's mother, the child's father and any member of the mother's family and any pictures of the family if such publication was likely to lead to the identification of the child.
The application was made by telephone because the President was away from London carrying out his official duties.
The President decided that the circumstances were not such as, having regard to section 12(2) of the Human Rights Act 1998, to justify the making of any order unless steps had first been taken by Essex County Council to notify the media of the application. He made clear that he was ready to hear any further application which Essex County Council might wish to make having given notice to the media. No such further application has been made."
"The President of the Family Davison has considered the papers submitted by Essex County Council in your email of today timed at 1017.
He notes that the required Checklist has not been properly completed:
1 It seems not to have been completed by the advocate making the application.
2 The draft order is not attached.
3 The boxes marked 'Any legal submissions' and 'Explanatory note' have not been ticked but the reasons for those omissions have not been explained under Q5. Reliance on Q6 (if intended) would seem misplaced.
4 The time of service has not been stated.
5 The documents establishing service are not attached.
The President further notes that service has seemingly not been effected on, nor has notice been given to, any of the UK newspapers (including the Daily Mirror) whom it is known are running this story.
The President asks whether it is proposed to place anything further before the court in advance of the hearing and, if so, when that will be done. Please respond as soon as possible. In the meantime arrangements are being made for the application to be heard as a matter of urgency this afternoon."
The media coverage
"dare I suggest that the media should remember the great C P Scott's famous aphorism that "Comment is free, but facts are sacred." I recently gave a judgment that received coverage in the media. A legal commentator suggested that readers might wish to compare and contrast what I had actually said with how it was reported: "Compare. And contrast … And weep.""
The case to which I was referring is Re W (A Child), Re H (Children)  EWCA Civ 1177.
The hearing on 13 December 2013
Re P (a child)
Case No CM12/C05138 – an Italian Child/Care/Adoption
We refer to the above matter.
We understand that this has now been transferred to the High Court with the intention that a hearing be fixed before the President of the Family Division.
We would advise the President that we have been approached by the Italian Embassy in London who would wish us to make an application to intervene in this case on behalf of Italy. The case relates to Italian nationals and we are instructed that it may be helpful for Italy to make representations on the application of the Council Regulation (EC) No 2201/2003 (Revised Brussels II).
For the avoidance of doubt Italy would not seek to advocate the position of any particular party to the proceedings but would wish to assist the Court in every way possible, where appropriate, as to the events referable to this case and also in order to formulate general guidance if appropriate.
The Legal team would be … instructed by Anne-Marie Hutchinson of this firm.
We should be grateful also if you would let us know whether any hearing has been fixed?
That was followed by another letter the following morning in which they sought "the guidance of the court as to how the application for leave to intervene should be best dealt with."
"The mother wishes to complain publicly about the way in which the courts in this country have handled her and her daughter. The court should be very slow indeed before preventing a parent doing what the mother wishes to do in the present case."
If ever there was a case in which that right should not be curtailed it is surely this case. To deny this mother in the circumstances of this case the right to speak out – and, I emphasise, to speak out, if this is her wish, using her own name and displaying her own image – would be affront not merely to the law but also, surely, to any remotely acceptable concept of human dignity and, indeed, humanity itself.
"… the representative of Associated Newspapers has made clear to me … that Associated Newspapers have no intention of publicising the present whereabouts of the child, the people who are caring for the child or the identity of the child. That confirms my preliminary view that I have not been able to identify any public interest (as opposed to matters which might be of interest to the public) in identifying those matters. The reasons for that are that this child at present, pursuant to the relevant orders, is placed with a view to adoption. Stability of that placement if at the end of the day the child is adopted is of significant if not crucial importance for the short, medium and long term life of the child. Prospective adopters are going through an emotional experience and one where they are bonding to a child. If that is disrupted because of publicity with the result that the child is moved, that is likely, in my view, to cause short, medium and long term damage to the child. I have not been able, as I said during the hearing, to identify any argument which would indicate that the matters that are of significant public interest relating to the decision-making processes of both the Family Court and the Court of Protection in this matter, would be advanced one iota by identifying the present carers of the child, or the child. I therefore propose to grant an injunction as sought relating to the identification of the child or the persons caring for the child and the publication of any pictures of the child and/or those persons."
"the arguments in favour of the continuing anonymisation of the child are overwhelming and … arguments in favour of the naming of the child, if indeed there are such arguments (and none have in fact been put forward), are exiguous and, on any basis, heavily counterbalanced by the arguments in favour of the child's anonymity being preserved."
"any argument that if the mother is identified, as has in fact happened, whether by name (by which I mean her maiden name) and/or by photograph, that would in some way lead to the identification of the child is little more than fanciful. Accordingly, … there are … very compelling arguments that the mother should not merely be enabled to tell her story to the world at large (if that is what she wants), but moreover that she should be enabled to do so by reference to her name (by which I mean her maiden name rather than her married surname), as, indeed, if this is what she wants, allowing her photograph to be published."
Using the Press Association
"There is a page on the Injunctions Alerts Service website – http://www.medialawyer.press.net/courtapplications/mediaorganisations.jsp - which lists the media organisations served, and the relevant telephone numbers, and which states at the top:
"The notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and Sky News. If notice has to be served on these two companies it needs to be served on them directly."
The service was also established on the basis that subscribing organisations would be taken to have been served with an application if notification was sent via the service.
The system works as follows: Would-be applicants are supposed to call a number, given in the Practice Note, and speak to the Customer Services staff who deal with the service.
They then send the documents, electronically (which is easier) or by fax, to the service. These documents are, if necessary, scanned to be put into electronic form, and are then distributed via e-mail alerts to the national media. Distribution is followed up by calls to each of the subscribing organisations to check that service has been received.
The service does not:
1: Serve regional and local newspapers, or magazines
2: Serve orders which have been obtained from the courts (despite the continuing efforts by some law firms to use it for this purpose).
The website's Home page, and the pages for the Practice Direction, Practice Note and for the Notification system all contain a red-bordered box detailing what it does and not do. The box is the same on all pages. It will be updated in the New Year, due to increasing use of the service by applicants seeking injunctions in the QBD who are also being required to notify the media of their applications. These mostly are cases involving settlements of medical negligence cases involving children."
Before the President
IN THE MATTER OF CHILD P [A GIRL, D.O.B. 24.08.2012]
IN THE MATTER OF THE ADMINISTRATION OF JUSTICE ACT 1960
AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
After hearing Mr R Howling QC who appeared on behalf of the local authority
And Upon reading confirmation from Associated Newspapers Limited that they consent to the terms of this order
REPORTING RESTRICTION ORDER MADE BY THE PRESIDENT ON 13 DECEMBER 2013 SITTING IN OPEN COURT.
IMPORTANT WARNING: ANY PERSON OR BODY WHO KNOWS OF THIS ORDER AND DOES ANYTHING TO BREACH ITS TERMS MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
IF YOU ARE SERVED WITH THIS ORDER YOU SHOULD READ IT EXTREMELY CAREFULLY AND ARE ADVISED TO CONSULT A SOLICITOR AS SOON AS POSSIBLE. YOU HAVE THE RIGHT TO ASK THE COURT TO VARY OR DISCHARGE THE ORDER.
1 The Applicant is Essex County Council ("the Local Authority")
The First Respondent is B ("The Mother").
The Second Respondent is C ("The Father").
The Third Respondent is P ("The Child").
2 The lead lawyer employed by the Local Authority is … , whose direct telephone number is … and email address is … , and to whom all enquiries about the scope and effect of this order should be addressed.
3 On 13 December 2013 the Court considered an application for a reporting restriction order.
4 This order was made at a hearing with notice having been given to the Press Association. Both the First and Second Respondent had also been given notice of this hearing by email.
5 The Judge read the following documents: the Application, a draft Order, a chronology and position statement prepared by Essex County Council, together with a statement from a social worker employed by Essex County Council, and was informed that the child had been placed for adoption.
6 Schedule 1 to this order [omitted] is an explanatory note in plain English. It forms part of this order. The note must always be supplied to any person affected by this order but otherwise is not to be published.
7 At present the address of the child and the names and address of her carers are not public knowledge. Those names and address are therefore not set out in this order. Those details must remain strictly confidential.
8 Subject to the following paragraph, this order binds all persons and all companies or unincorporated bodies (whether acting by their directors, employees or in any other way) who know that the order has been made.
9 In respect of persons outside England and Wales:
(i) Except as provided in sub-paragraph (ii) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court.
(ii) The terms of this order will bind the following persons in a country, territory or state outside the jurisdiction of this court:
(a) the First and Second Respondents or their agents;
(b) any person who is subject to the jurisdiction of this court;
(c) any person who has been given written notice of this order at his residence or place of business within the jurisdiction of this court;
(d) any person who is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and
(e) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.
Undertakings to the court
10 If the court later finds that this order has caused loss to a Respondent or to a third party and decides that such Respondent or third party should be compensated for that loss, the Applicant shall comply with any order the court may make.
11 The Applicant will not, without permission of the Court, seek to enforce this order in any country, state or territory outside England and Wales.
IT IS ORDERED THAT:
12 The Applicant is granted permission pursuant to the Children Act 1989 s100 to apply for an order in the exercise of the Court's inherent jurisdiction.
13 Subject to the "territorial limitation" above, this order prohibits the Respondents from facilitating or permitting the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast or cable or satellite program service any information, including the mother's married surname, that reveals the identity or name or address or whereabouts of the child (whose details are set out in Schedule 1), or the identity or name or address or whereabouts of her carers, or any pictures of the child or her carers if, but only if, such publication is likely, whether directly or indirectly, to lead to the identification of the child as being:
(a) A child who is or has been subject of proceedings under the Children Act 1989 or the Adoption and Children Act 2002; and/or
(b) A child who has been removed from the care of her parents; and/or
(c) A child whose contact with her parents has been prohibited or restricted.
Provided that nothing in this order prevents the publication of the mother's first and maiden names.
14 No publication of the text or summary of this order or the supporting documents (except as provided for below under "service of this order") shall include any of the matters referred to in the preceding paragraph.
15 Nothing in this order shall prevent any person from:
(a) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;
(b) seeking or publishing information which is not restricted by the section "prohibited publications" above;
(c) enquiring whether a person or place falls within the section "prohibited publications" above;
(d) seeking information relating to the child while acting in a manner authorised by statute or by any court in England and Wales;
(e) seeking information from the lead solicitor acting for the local authority, whose details are set out under "the parties" above, or from any press officer employed by the local authority;
(f) seeking or receiving information from anyone who before making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
Duration of this order
16 Subject to any different order made in the meantime, this order shall have effect until 6pm on 24 August 2030, save in the event that the child is returned to the care of the mother in which case this order shall thereupon cease to have effect.
The right to apply for variation or discharge of this order
17 The parties and any person affected by any of the restrictions in the section "prohibited publications" above of this order may make application to vary or discharge it to a judge of the High Court on no less than two working hours' notice to the Applicant and the Press Association and, if practicable, to the other parties. Any such application shall be supported by a witness statement endorsed with a statement of truth.
Service of this order
18 Without prejudice to the terms of the "territorial limitation" above, copies of this order (which is endorsed with the notice warning of the consequences of disobedience) shall be served by the Applicant (and may be served by any other parties to the proceedings):
(a) by service on such newspaper and sound or television broadcasting or cable satellite or programme services as they see fit, by fax or first class post addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting, cable or satellite programme service) or website administrator (in the case of an internet website) and/or to their respective legal departments; and/or
(b) on such other persons as the parties may think fit, by personal service.
19 There shall be no order as to costs.
Dated 13 December 2013