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Publicity and the Family Courts: recent developments

Adam Wolanski, of 5RB, reviews recent cases concerning the attendance of the media in family proceedings

Picture of Adam Wolanski

Adam Wolanski, Barrister, 5RB

In July 2006 the Department of Constitutional Affairs published ‘Confidence and confidentiality, Improving transparency and privacy in family courts’. It proposed, amongst other things, allowing the media to attend proceedings as of right, though allowing the court to exclude them where appropriate to do so and, where appropriate, to place restrictions on reporting of evidence.

The consultation which followed revealed widespread opposition to these proposals, including from a majority of the judicial respondents. A further consultation paper followed in June 2007 called Confidence and Confidentiality: openness in family courts - a new approach. This contained watered down proposals for increasing ‘transparency’ in family courts. The media would no longer be allowed to attend family courts as of right, but more information from family courts would be made available to the public after a final order had been made.

In A New Approach the DCA specified certain types of case in which more information from the proceedings would be made available after a final order had been made. These included cases where the case concerned matters such as disputed medical evidence; the removal of a child from its parents; and where the case involves ‘significant human rights issues’. The information would take the form of a full transcript of the judgment; a ‘decision summary’; or written reasons for the decision.

Nearly 18 months on, the results of this consultation are still awaited. There continue to be suggestions from the government that they wish to increase public confidence in the family court system and to address concerns about the “secrecy” in which the courts operate – Justice Secretary Jack Straw addressed the issue in a speech at the Labour Party Conference in September. Meanwhile there have been a number of recent cases which suggest that there is increasing judicial willingness to allow information from family cases to be disclosed and published. This article examines some of those cases.

Media applications for access to care proceedings
In Norfolk County Council v Webster and Others [2006] EWHC 2733 (Fam); [2007] EMLR 199; (2007) HRLR 3 Munby J for the first time permitted the media to attend the hearing in a contested care case as well as permitting identification of the parents and child concerned.

The Websters claimed they had been wrongly accused of child abuse. Their first three children had been taken into care and later adopted. Shortly before the mother was due to give birth to a fourth child, Brandon, the couple fled to Ireland, and then returned. They sought publicity for their case. Eventually, Norfolk county council withdrew proceedings to take Brandon into care after conceding that injuries to one of the couple's other children might have been caused by vitamin deficiencies. The authority said it no longer relied on evidence which suggested that leg fractures were caused by abuse.

Webster was a striking case, but remains unique. The media have not been permitted to attend any care case and identify the parties since. In Z County Council v TS [2008] EWHC 1773 Hedley J permitted the media to attend the trial of a care case, but not to identify any of the participants.
 
The Times achieved a more modest success in Medway Council v G and Others [2008] EWHC 1681 (Fam). The local authority made a child, S, the subject of a care order following a breakdown in the relationship between his parents. S was placed with foster carers, but was abducted and taken to France by its mother with the assistance of her new husband, M.
 
Upon his return to England M was arrested and convicted for assisting in the abduction of S. S and his mother did not return to England, and remain overseas. The local authority obtained an order preventing publication of information relating to S and preventing the press from seeking information about S from any of those involved in the case. Times Newspapers applied for the insertion of a proviso allowing them to interview M and for the judgments in the care proceedings to be made publicly available.
 
During the course of the hearing the local authority offered to provide the Times with a case summary providing a significant amount of detail about the proceedings to date. Content with the information it now could publish, the Times withdrew its application for the judgments. It was permitted to carry out the interview. The judge gave permission for the disclosure of the information in the schedule into the public domain.

One factor which helps explain the rarity of applications by the media to attend family cases is the cost of applying for access or disclosure – such applications often take an unpredictable course and can entail several hearings. However, in a small number of cases, no application by the media or by the parties for publication of judgments was necessary. Judges have handed down anonymised judgments in public, on occasions in order to make public the shortcomings in the way local authorities have conducted care proceedings. In Oldham MBC v GW & Ors [2007] EWHC 136 (Fam), Ryder J wished to publicise the ‘lessons to be learned’; from a case in which “the parents bore an almost intolerable burden of being unjustly accused of inflicting serious injury on their infant son, [and] The parents experienced the nightmare of what has transpired to be a false finding by a court”. 

Obtaining anonymised judgments from care cases
S. 12 of the Administration of Justice Act 1960 makes it a contempt to publish the details of certain types of information from care cases held in private. This includes information contained within judgments. There have, however, as the President pointed out in Medway v G, been many recent judicial pronouncements as to the desirability of anonymised judgments being made publicly available in cases where some public interest is engaged.

In Medway the President contrasted the situation before proceedings had been finally concluded with the situation afterwards. The DCA proposals for publication of information from proceedings anticipate the judgments, or summaries, being released only after proceedings had been concluded. Once cases have been concluded, not only has there been a final assessment of the various rights engaged, but any risk of interference with the administration of justice disappears.

In Medway itself, however, the proceedings were not concluded when the Times made its application for judgments. But (1) there was no end to the case in sight, since the mother was still a fugitive from justice, (2) there was a fair amount of information about the case in the public domain already as a result of the criminal proceedings, and (3) the media speculation about the case, including comments about the ‘wall of secrecy that has forced a decent woman to live as a fugitive’, justified the release of further information about the case.

Identifying children after proceedings have concluded
In Clayton v Clayton [2006] EWCA Civ 878; [2006] Fam 83; [2006] 3 WLR 599 the CA ruled that the prohibition under s.97 of the Children Act on identifying children as involved in Children Act proceedings ended once the proceedings were concluded 1.  The ruling caused a stir, and prompted the DCA to suggest in A New Approach that it may legislate to prevent such identification.

Clayton was a private law case. However, no distinction is made in the judgment between private and public law cases. The question of the application of Clayton to public law cases arose in the recent unreported case of Hampshire County Council v Associated Newspapers Limited (2008, PO54 07). Hampshire Council contacted Michael Shergold, the natural father of an adopted child, in 2007, when the child was four, to inform him he had a child who was in care. Mr Shergold claimed this was the first he knew of the child, and believed that Hampshire only attempted to trace him once it became apparent that the child would require an organ transplant.

Mr Shergold then brought legal proceedings to win custody of the child. After his legal battle ended in failure, an injunction was granted preventing the story from being told. Associated Newspapers successfully applied to overturn the injunction. Mr Justice Coleridge permitted the newspaper to identify Mr Shergold, and ruled that there was no reason to stop the story from being told. He also allowed the judgment in the adoption proceedings to be made public.
 
The question arose during argument as to whether there is in fact any legal impediment after Clayton to identifying children who have been involved in adoption proceedings after those proceedings have concluded. While the judge did not need to decide the point (Associated Newspapers did not dispute that the child should remain anonymous) the judge in argument drew the distinction between the position in private law cases such as Clayton and cases involving adoption. In adoption cases, there is generally a far greater need for the adopted child to be protected from publicity.
 
It is suggested that while there is currently no automatic restriction upon identifying children who have been involved in adoption and care proceedings, it is almost inconceivable that a court would refuse an application to restrain identification of such children. Moreover any publisher which does identify children in such circumstances would be at risk of attracting proceedings for damages and an injunction on the grounds that the child’s Article 8 rights had been infringed.

The situation is of course different once the children themselves express a wish to be identified. As long as the children are deemed to be capable of making an informed decision on such a matter (i.e. they are Gillick competent), the courts are highly unlikely to prevent them from identifying themselves as having been the subject of care proceedings.

In X Council v B & Ors [2008] EWHC 270 (Fam) Blackpool Council had taken three of Mrs B’s children into care, claiming they were at risk of physical or emotional harm. The children were later returned to Mrs B, and Munby J criticised the local authority’s handling of the case in a judgment which anonymised the family involved.

After the proceedings were concluded, Mrs B and two of her children, aged 10 and 16, applied for permission to identify themselves as the people referred to in the judgment. Noting that the state’s involvement with the family had now ended, and that s.97 no longer prohibited identification, Munby J stated that “insofar as the decision whether a teenager should speak in public or talk to the media involves an exercise of parental responsibility then it is for Mr and Mrs B to exercise that responsibility, not the court or any other public authority.” The application was allowed.

Identifying the local authorities involved in care proceedings
There is no statutory prohibition on identifying local authorities which bring care proceedings. In Medway the President dismissed an application by the local authority restraining the Times from identifying it. He rejected the argument which Munby J had previously rejected in Kent County Council v B [2004] EWHC 411 (Fam); [2004] 2 FLR 142 – that naming the local authority would lead to identification of the child.

Similarly, in X Council v B & Ors [2007] EWHC 1622 (Fam), even before the application by the mother and children to permit their identification as the subjects of the proceedings, Munby J ruled that there was no prohibition on identifying Blackpool as the local authority involved.  Coleridge J reached the same conclusion in Hampshire CC v Associated Newspapers.

Only where the court has been persuaded that naming the local authority would lead to identification of the child involved has the name of the authority been withheld – see, for example, Z County Council v TS [2008] EWHC 1773.

Identifying medical and other experts in cases
As is the case with local authorities, there is no statutory prohibition on identifying experts involved in family proceedings. However, by contrast with the situation regarding local authorities, the courts will, it seems, readily grant injunctions restraining the identification of professional witnesses. The principal reason for this is that it is feared that identification of experts will deter experts from assisting in child cases – see Kent County Council v B [2004] EWHC 411 (Fam); [2004] 2 FLR 142.

Thus in only very few of the cases in which the media have been allowed some access to family proceedings, or to publish information from those proceedings, has the court allowed the professional witnesses to be identified. In one case where an application for an injunction was refused - BBC v Rochdale Metropolitan Borough Council, X and Y [2005] EWHC 2862 (Fam); [2006] EMLR 117 - the proceedings had concluded some 15 years previously. The exception is Oldham MBC v GW & Ors in which Ryder J (who also decided the Rochdale case) discussed at length the finding of the experts. No application was made on behalf of the experts for anonymity, despite the trenchant criticisms made of the principal expert in the case.

Note
1 In Webster Munby J ruled that s.97 should be read down to allow the identification of a child in proceedings where the Convention rights of the parties required this.

ADAM WOLANSKI
Adam Wolanski is a barrister at 5RB specialising in media law. He acted in Norfolk County Council v Webster and Others, Medway Council v G and Others, Clayton v Clayton, Hampshire County Council v Associated Newspapers Limited, Kent County Council v B and BBC v Rochdale Metropolitan Borough Council, X and Y