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Abbasi & Anor v Newcastle upon Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699( Admin)

Before the President of the Family Division, this case concerned 2 separate applications relating to 2 different children.

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Each child had been the subject of end of life proceedings under the inherent jurisdiction where the issue was whether end of life support should be withdrawn.  Sadly, both children are deceased and widely drawn RRO's were made at the time those proceedings concluded, each RRO was unlimited in duration and open ended, and covered all those who were employed by the relevant  NHS hospital trust, and who played any part in the provision of care or treatment of the child.   Now each of the 2 sets of parents sought to be released from the RRO so that they may speak publicly about their experiences, and in doing so be free to identify NHS staff involved in the care of each child, of whom they were critical.  The central issue for determination was the jurisdiction of the High Court to maintain, or to re-impose a RRO protecting the anonymity of those NHS staff involved in the care of the child where the RRO was to remain in force for a significant time following the childs death.  Further, the issues before the Court also related to the exercise and balancing of rights under Article 8 and Article 10 ECHR. 

 The Court reviewing the authorities on RRO"s concluded that it did have jurisdiction to consider the continuance of the RRO because the Court had made the orders, they were currently in force and they were now subject to applications for revocation or renewal. If the Court took the view it did not have jurisdiction to consider the applications, then the effect would be, absent any appeal out of time, that the orders would remain in force for all time, an parents would always continue to be bound by them.  As a matter of first principle where an order is in force, the Court has jurisdiction to renew it.

The approach to the balancing exercise of competing rights under articles 8 and 10 ECHR remains as stated by Lord Steyn in the House of Lords decision in Re S (a child)(identification: Restrictions on publication) [2004] UKHL 47 [2005] 1 AC 593, in which neither Art 8 or Art 10 right has precedence.  In carrying out the ultimate balancing test of those rights, on the facts,  it concluded that the continuation of the RRO's was justified and proportionate. The time had come to draw a line under A v Ward  [2010] EWHC 16 (Fam) in so far as it required compelling reasons to be established before anonymity  could be afforded to a class of professionals, this dicta was found to be per incuriam and should no longer be followed.   In considering treating clinicians article 8 rights the Court found substantial weight should be given to the strong and coherent body of evidence on the potential for such individuals to become vulnerable to physical and personal attacks and to suffer adversely in terms of mental health and wellbeing required to be taken seriously.  The Court also recognised the parents were not on solid ground with their assertions against the clinicians due to lack of a finding of fact hearing.  The Court observed there was a lack of detail about the factuality of the claims.  The applications to discharge the RRO's were refused

Case summary by Judi Evans, Barrister, St John's Chambers

For full case, please see BAILII