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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> PP (A Child) [2023] EWHC 330 (Fam) (20 February 2023) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2023/330.html Cite as: [2023] 3 FCR 525, [2023] 4 WLR 48, [2023] EWHC 330 (Fam), [2023] 2 FLR 934, [2023] WLR(D) 193 |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Mid Yorkshire Hospitals NHS Trust |
Applicant |
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- and - |
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(1) PP (through her Children's Guardian) (2) APPELLANT |
Respondents |
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Re PP (A Child) |
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Mr Brian Farmer attended on behalf of PA Media
Mr Shaun Robins, solicitor, appeared on behalf of the Local Authority
Ms Helen Hendry, counsel, appeared on behalf of the Child's Guardian, Gillian France
AP attended in person
Hearing date: 6 February 2023
____________________
Crown Copyright ©
This judgment should be reported as Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam)
Mr Justice Mostyn:
"(a) that the proceedings relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(b) the name, address or photograph of PP;
(c) the name, address or photograph of the other parties;
(d) the date, time or place of the hearing on 18 January 2023 and of all future hearings of the proceedings;
(e) the nature of the dispute in the proceedings;
(f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; and
(g) the text or summary of the whole or part of any order made in the proceedings."
"(a) any information (including any photograph) at all concerning this case before 09:00 on Thursday 26 January 2023, and
(b) thereafter of any information (including any photograph) which could reasonably lead to the identification of the name and/or address and/or geographical location within England and Wales (other than by referring to the geographical location as within the North of England) of the first and second respondent, known as PP and AP respectively, insofar as this identifies PP as a party to these proceedings in respect of a serious medical treatment order. This includes any reference to the county in which she resides, her relevant local authority, her specific age (save that she is a teenager below the age of consent) or any reference her health save that it may be reported that (i) PP suffered a brain injury in a motor accident when aged 9, (ii) PP is expected to be delivered of, or, as the case may be, was delivered of a baby on Monday 23 January 2023, (iii) as a result of her pregnancy PP is on a local authority child protection register, (iv) the local authority intends to commence, or, as the case may be, has commenced care proceedings in respect of the baby."
What PA seeks to report and why: |
Guardian's (G) submission |
LA's submission |
To identify the child as a teenage girl below the age of consent |
This is permitted by the existing order |
Agree with G |
To say that PP has become pregnant and given birth.
To explain when her pregnancy was discovered |
This is permitted by the existing order
It is unnecessary to report when PP's pregnancy was discovered. This would will likely increase the risk of local reporting making PP identifiable to those who know her |
Agree with G
Agree with G |
To outline the order of 18 January 2023 including that the PP has a brain injury |
This is permitted by the existing order which allows a report to say that a serious medical treatment order was made and that PP has a brain injury |
Agree with G |
To name the trust which made the application - (the trust has since confirmed it does not oppose this) |
It is accepted that naming the trust is unlikely to increase the risk of jigsaw identification and therefore the G does not oppose this |
Agree with G |
Name the council involved. Councillors and local MPs should know so that they can ask questions and invoke a discussion - this is about local democracy
As to naming the council rather than just saying that it is in the North of England: the child may well recognise herself either way.
This will not likely make national news.
The question should not be `will anyone identify the child?' otherwise the media would never be able to report a family case or COP case.
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This would increase the risk of jigsaw identification of PP
It risks causing PP substantial worry and upset.
PP is a very young mother with substantial vulnerabilities who has very recently been separated from her baby
The public interest in reporting is met by identifying the trust - councillors and taxpayers in the trust area can ask questions without needing the council to be named
`a local authority in West Yorkshire' is a proportionate balance |
If identified, PP will suffer emotional harm and possible physical harm. The level of harm is likely to be high.
If identified (i) the contact between PP and her baby is likely to be negatively impacted due to PP's likely responses to the stressors caused by being identified; (ii) the assessment of PP's ability to care for her baby is likely to be negatively impacted; (iii) the assessment of AP as a possible alternative carer for the baby is likely to be negatively impacted and (iv) the baby is more likely to be at risk of adoption.
If local authority is referred to as a West Yorkshire local authority PP is likely to be identified.
local authority will concede reference to it as a "Yorkshire Local Authority" given the Trust consents to being identified. |
To give a brief outline of PP's involvement with the council
PP was known by social services in September 2019 Mr Farmer spoke to a council official who confirmed that they discovered she was pregnant 3 weeks after the initial child protection conference on 11 October 2022 |
Reporting of these facts are not opposed, save that, for the reasons above it is not necessary to report when her pregnancy was discovered. |
Agree with G |
To give a brief explanation of what has happened to PP's baby |
Any issue regarding reporting of the care proceedings should be dealt with by the judge dealing with the care proceedings on notice to the baby's guardian and the baby's father. Leeds is a pilot court within the transparency pilot and it would be open to the judge to make a transparency order |
Naming the local authority now is not necessary, and should be delayed until care proceedings conclude to ensure the care proceedings are conducted justly |
The applicable principles
"The jurisdiction over wards … is exercised by the judges as representing His Majesty as parens patriæ. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs"
"(1) In relation to any proceedings in any court … the court may direct that - (a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein; (b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court."
"VI. The general rule.
In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8." (emphasis added)
Obviously, that ordinary rule applies equally in civil proceedings. We know this to be true because it was said so repeatedly in the family/civil case of Scott v Scott. For example, Viscount Haldane LC said;
"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.
….
He who maintains that by no other means than by such a [closed] hearing can justice be done … must make out his case strictly, and bring it up to the standard which the underlying principle requires. … he must satisfy the Court that by nothing short of the exclusion of the public can justice be done."
"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. " (original emphasis)
The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person.
"Mr X asks that his identity should not be disclosed. Should my intensely focussed weighing of the importance of freedom of expression by the press and Mr X's right to a private life lead me to conclude that in order to secure the proper administration of justice and to protect his interests I should grant his request?"
But rather:
"Mr X asks that his identity should not be disclosed. The freedom to report Mr X's identity is the ordinary rule. It is a strong rule which can only be displaced by unusual or exceptional circumstances. Should my intensely focussed weighing of the importance of freedom of expression by the press and Mr X's right to a private life lead me to displace that ordinary rule and to conclude that to secure the proper administration of justice and to protect his interests I should grant his request?"
"It is to be noted that Sir James Munby's conclusion, that 'compelling' reasons are required before anonymity could be afforded to the class of individuals involved in providing treatment to a child, is not supported by reference to any domestic or Strasbourg authority. Moreover, it is a conclusion which is at odds with the express stipulation made by Lord Steyn in Re S that neither Art 8 nor Art 10, as such, has precedence over each other. The importation of the need to establish compelling reasons would automatically afford precedence to Art 10 in every such case.
Standing back and looking at the issue as it is presented now, in 2021, the time has come to draw a line under A v Ward [2010] EWHC 16 (Fam) insofar as it purported to establish that anonymity is not to be afforded to a class of professionals unless there are compelling reasons for doing so. The approach in law is that set out by Lord Steyn in Re S and in respect of the requirement for 'compelling reasons' the judgment in A v Ward must be regarded as per incuriam and should not be followed. In accordance with Re S, there should be no default position, or requirement for 'compelling reasons', in such cases. Any such application should turn on its own facts, including the overall context, where that is made out, as to the significant negative impact that the unrestricted and general identification of treating clinicians and staff may generate."
"But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.
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That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means."
"The idea of a court hearing evidence or argument in private is contrary to the principle of open justice, which is fundamental to the dispensation of justice in a modern, democratic society. However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum – see, for instance A v Independent News & Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645. Examples of such cases include litigation where children are involved, where threatened breaches of privacy are being alleged. "
"It is apparent from recent authorities at the highest level, including Al Rawi and others v Security Service and others (JUSTICE and others intervening) [2011] UKSC 34; [2012] 1 AC 531, Bank Mellat v Her Majesty's Treasury [2013] UKSC 38; [2013] 3 WLR 179 and Kennedy v The Charity Commission [2014] UKSC 20, that the common law principle of open justice remains in vigour, even when Convention rights are also applicable."
And at [57]:
"That approach does not in any way diminish the importance of section 6 of the Human Rights Act, by virtue of which it is unlawful for the court to act in a way which is incompatible with a Convention right, unless subsection (2) applies. As was made clear in Kennedy, however, the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute. Its application should normally meet the requirements of the Convention, given the extent to which the Convention and our domestic law in this area walk in step, and bearing in mind the capacity of the common law to develop as I have explained in para 40."
i) Police officers had been allowed to give evidence while screened from the sight of the general public, and without public disclosure of their identities, in order to avoid jeopardising their effectiveness in future investigations (at [38]).
ii) A prisoner serving a sentence for sexual offences was permitted to bring proceedings, challenging the notification requirements applicable to sexual offenders, without disclosing his identity publicly, because of the danger to his safety if the nature of his offending became known to his fellow prisoners (at [39]).
iii) The publication was prohibited of the identity of a woman who was due to be the principal witness at the trial of a person charged with having recklessly infected her with HIV. There was evidence before the court that the woman's mental health would be endangered if her identity became publicly known. There was also a risk that the woman would otherwise be unable to give evidence, in which event the prosecution could not proceed (at [39]).
iv) On an action of damages arising from the deployment of the SAS to end a prison siege, the soldiers were permitted to give evidence while screened from the view of the general public, and without disclosing their names publicly. The judge did so on the basis that while their evidence was essential to the proper presentation of the defence, the Army's ability to deploy them in future operations would otherwise be compromised. In such a case, their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure (ibid).
v) In the actual case before the Supreme Court a sex offender challenged a First Tier Tribunal ('FTT') deportation judgment and order which had anonymised him to limit the risk of vigilante harm on his return to his country of origin. He was likewise anonymised in the challenge proceedings for, were he not to be, the very rationale of the FTT order would have been subverted.
"Finally, [the husband] complains that the Wife has threatened him with publicity if the case proceeds. I believe this refers to proposed changes to the rules on anonymity in financial remedy proceedings but they are not in place yet. I am clear that, until I am told I have to permit publication, litigants are entitled to their privacy in the absence of special circumstances, such as where they having already courted publicity for the proceedings which is not the case here."
"I am satisfied that the publication of my judgment in anonymised form adequately balances the right of the parties to a private life whilst promoting transparency in the accurate and balanced reporting of financial remedy cases."
"The judicial function is not just to render a decision. It is also to explain it …in words which will carry the conviction of its rightness to the reasonable man".
In order to do this a judgment has to tell a story which is readable, or at least not unreadable. Anonymising a judgment almost invariably destroys the quality of the story and renders it largely unreadable. Imagine trying to read an anonymised version of Great Expectations. You wouldn't get very far. In a tweet posted on 9 February 2023 Alexander Chandler KC commented on the anonymised judgment of the Divisional Court in In Re A Barrister (9 February 2023 - https://www.judiciary.uk/judgments/in-re-a-barrister/) saying that it was:
"a good example of how anonymising a judgment (to the extent of disguising even the gender of the barrister) causes it to be so bland as to be almost unreadable".
This is a criticism that can be levelled at all anonymised judgments. I have shown, and fully accept, that sometimes anonymity is unavoidable, as it is in this case. As a result I would think that most reasonable readers would struggle to get through the first 24 paragraphs I have written above. But once all judgments are like that it can safely be said that a key constitutional function of the judiciary will have been sterilised.
"And their Lordships in reaching the conclusion that the public must be treated as having been excluded from the library on this occasion have not been uninfluenced by the fact that the cause then being tried was an undefended divorce case. To no class of civil action is Lord Halsbury's statement more appropriate. In no class of case is the privilege more likely to be denied unless every tendency in a contrary direction, whenever manifested is definitely checked.
…
And there is perhaps no available way to correct these tendencies more effectively than to require that the trial of these cases shall always take place and in the fullest sense in open Court. This requirement must be insisted upon because there is no class of case in which the desire of parties to avoid publicity is more widespread. There is no class of case, in which in particular circumstances, it can be so clearly demonstrated even to a Judge that privacy in that instance would be both harmless and merciful."
"Lord Blanesburgh's remarks, in my view, provide a stern reminder of the importance of not allowing one's compassion for that limited group of people who are of particular interest to the public (because of who they are or what they are alleged to have done) to undermine a principle which is fundamentally sound in its general application."
This case
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WHAT PA SEEKS TO REPORT AND WHY: |
THE COURT'S DECISION |
1
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To identify the child as a teenage girl below the age of consent |
PP's age of 15 may be stated |
2(a)
2(b)
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To say that PP has become pregnant and given birth.
To explain when her pregnancy was discovered |
This is permitted
It may be reported that PP was known by social services in September 2019 and that that they discovered she was pregnant 3 weeks after the initial child protection conference on 11 October 2022. |
3 |
To outline the order of 18 January 2023 including that the PP has a brain injury |
This is permitted. |
4 |
To name the trust which made the application - (the trust has since confirmed it does not oppose this) |
The trust may be named |
5 |
To name the council involved.
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The local authority may be identified as a local authority in West Yorkshire.
Application to name the local authority should be made to the Family Court at Leeds |
6 |
To give a brief outline of PP's involvement with the council
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This is permitted in the terms specified at item 2 above. |
7 |
To give a brief explanation of what has happened to PP's baby |
This is not permitted at present. Application to report these facts should be made to the Family Court at Leeds. |
Note 1 For this very reason it seems to me that Sir Andrew McFarlane P is not saying at para 21 of his Amended Guidance dated 26 January 2023 for those taking part in the (very welcome) Transparency Pilot, that without any serious consideration of the facts of the case in hand, all social workers, all Cafcass reporting officers and all Guardians should, as generic classes, ‘normally’ or ‘usually’ should have their identities withheld. Rather, he must be referring to the truism that naming them may well increase the risk of identification of the children and so, for that special reason, anonymisation may well be necessary on the facts of the individual case. [Back]