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Children Public Law: Latest Important Developments (Autumn 2006)

Alex Verdan QC reviews the key developments and cases in public child law over the past three months.

Alex Verdan QC, 9 Gough Square

In this review I will focus, in particular, on the topics of Open Access, the Voice of the Child, Appeals and Care Plans and consider in some depth the recently reported case of Norfolk County Council v Webster & Ors [2006] EWHC 2733 (Fam), knowing, as I do, that recent developments in the field of expert evidence in family proceedings have been addressed on Family Law Week by Lord Justice Wall (see Recent Developments in the Field of Expert Evidence in Family Proceedings)

The very recent case of Re Brandon Webster (A Child) sub nom Norfolk County Council v Nicola Webster & Ors [2006] EWHC 2733 (Fam), a decision of Mr Justice Munby, raises important questions of principle about open justice, freedom of speech, the role of the media, miscarriages of justice and the roles of the media, confidentiality in children proceedings, and the right of access to and reporting of proceedings in the family courts. In naming the family and allowing the media in principle to attend hearings in a child care case it has been called a landmark ruling.

The issue in the case was whether the media would be allowed to attend and report the hearings of care proceedings relating to a 5 month old child who was the fourth child of parents whose first three children had been made the subject of care orders and subsequently adopted. The parents' case was that they had been the subject of a miscarriage of justice on the basis of flawed medical evidence. The case had already attracted a high level of publicity. Initially the court imposed very strict reporting restrictions. The parents and a number of media organizations sought to vary the order to allow the media to attend the hearing. The parents argued that the reporting restrictions interfered disproportionately with their human rights and that they should be able to speak freely about their case to enable the full truth to be exposed and to enhance public confidence in the judicial process. They also argued that their child's rights would not be disproportionately interfered with given his young age and the extensive media coverage there had already been. The guardian opposed their application on the grounds that the child's private life should remain private and that reporting restrictions preserved the belief amongst those who gave evidence that such information would remain confidential.

Mr Justice Munby held that

The judge referred to the ultimate complex balancing test involving consideration of Articles 6, 8 and 10 of the Convention which he described as publicity against privacy.

In this particular case four factors caused the judge to find that the reporting restrictions imposed were too wide and to allow media, though importantly not the general public, access to the proceedings:

i. the case was alleged to involve a miscarriage of justice;
ii. the parents themselves wished for publicity;
iii. the case had already been extensively publicized; and
iv. there was a need for the full facts and the 'truth' to emerge in a way which would command public confidence in the judicial system.

Interestingly, Mr Justice Munby, in deciding general principles, left the ultimate right to control access by the media to the trial judge at the subsequent hearing.

It seems to me that this case is highly significant where these four factors apply and reflects a new mood for greater openness in family proceedings. To that extent, and coinciding with the recent government consultation on proposals to open up the family courts, it heralds a new era and echoes the view of Government and many of the senior family judiciary that closed family courts have contributed to a lack of confidence in the system. However, it should be noted that the four factors will not apply to the vast majority of family or care cases and that in those vast majority privacy, confidentiality and anonymity will, I suspect, continue, though Mr Justice Munby suggests that courts in future should perhaps be more willing to exercise the disclosure jurisdiction so as to put matters such as this in the public domain. In particular, the vast majority of parties involved in family proceedings do not wish for any publicity whereas in this case the parents wished to tell their story.

This case provides a comprehensive review of the law relating to media access to family courts, fully covering and reviewing both the statutes and key authorities and is essential reading for all family practitioners.

On 30 October 2006 Constitutional Affairs minister the Right Honourable Harriet Harman QC MP said to the "Opening Up Family Courts" conference which was attended by child and health care professionals, that children should be able to have a greater say in family court decisions made about them. She outlined the importance of children being able to speak to the judge or magistrates if they want to.

She said,

"In family court cases, the welfare of the child is paramount. Decisions are made which will affect them for the rest of their life. But too often the courts do not ask what they want or what they think. The courts are unlikely to tell children what is happening in court or to ask children their views. For children divorce is a painful and distressing experience, and not knowing what's going on or having the choice to put forward their views can make it more so. Children should be told by the court that is deciding their future what is happening and why decisions are being made about them. Judges and magistrates need to have the confidence to talk to children and tell them what is happening."

Harriet Harman also stressed the importance of 'later life judgements' so that children can get access to information on their cases when they become adults. At the moment there is no court record kept for children of why the court reached the decision it did. She said people have to 'turn private detective' to find out why decisions were made by the court when they were a child and why.

Harriet Harman added,

"As children become adults they often want more information. They may want an account of what happened to them and why those decisions were taken. But it is not just a child's need to know that is important. The state should be accountable for its actions when it intervenes in family life."

It remains the case that children involved in care proceedings rarely attend court and very rarely give evidence. Of course they are legally represented by their own solicitor and their interests safeguarded by the Children's Guardian but their involvement is indirect and one step removed. That said and without wishing to take away from what the Minister said, in public law proceedings the children, assuming they are old enough, are asked what they want by a number of people/professionals involved in the case and their 'wishes and feelings' are carefully documented and conveyed to the court. Therefore, I do not agree that children are not asked what they want or what they think. They are. Whether those wishes and feelings are acted on is of course a different issue and depends on the particular facts of the case although my experience is that the older they get the more this item on the welfare checklist becomes predominant to the point where if an adolescent child does not wish to see his parents no one forces him to do so, even in the type of case where the experts are in fact saying that contact would be in that child's best interests. Furthermore, I am not sure if I can agree that courts in public law cases are unlikely to tell the children what is happening. My experience is to the contrary; namely that where the child is old enough and has expressed a wish to know what is happening or is thought to benefit from being told, that child is told, though again normally indirectly through his solicitor and/or Guardian. I say 'normally' because I have had the experience recently of a Judge writing to two boys telling them of the threshold findings he had made and explaining why he had done so. In that particular case the evidence before the Judge was that the boys needed to know the decisions that had been made and would benefit from hearing directly from the Judge in the form of a letter read to them by their Guardian and then left with them. This had the advantage of leaving them with a reference document for future use. Inevitably, those professionals charged with advising the court on issues relating to the welfare of the child will have to decide whether greater involvement of the child in the court process is in their best interests.

In Re B (Children) [2006] EWCA Civ 773 the father appealed against findings of fact of sexual abuse made by the judge in care proceedings. The focus of the appeal was the judge's approach to the evidence of what the children had said: it was contended that the sources were so unreliable that the judge was 'plainly wrong' to draw from them any conclusions of sexual abuse, or at least any conclusions as to who had done it. The father's appeal was dismissed. Two interesting points emerge from the case. Firstly, the Court of Appeal held that it was not possible to say that the judge was 'plainly wrong' to find as he did, as it was only 'very rarely appropriate' for an appeal court to make such a finding on a paper examination of evidence given in the court below over a period of days and assessed as a whole by a trial judge. The wide judicial discretion enjoyed by the judge hearing and evaluating the evidence was thus reaffirmed. Second, despite the Court of Appeal accepting that the children's evidence obtained by the police officer did not comply with the nationally agreed guidelines entitled 'Achieving Best Evidence', it held that the judge was fully aware of the deficiencies of this evidence, and for him to have concluded that he must disregard the evidence altogether would have been to invest the guidelines with the status of the law of evidence. The Court of Appeal therefore has decided that a breach of these Guidelines did not necessarily make the evidence obtained in such interviews unreliable nor incapable of leading to serious findings being made.

In Re M (Children) [2006] EWCA Civ 1325 the Court of Appeal again considered its role in reviewing findings of fact in a sexual abuse case. It acknowledged a) that to make a positive conclusion against a father of sexual abuse of a daughter would have the most serious consequences and b) the importance of avoiding a finding that was precipitate or uncertain. The Court, however, stated that if a judge directed himself properly as to the law and then considered the evidence fully and carefully, making findings based on a evaluation of each witness, an appeal would be futile. The Court of Appeal reiterated that the job of establishing facts on the proper application of legal principle rests with the trial judge. There is no right of re-hearing. The appellate court's responsibility to interfere is confined to relatively narrow areas, such as errors of law or disregard of relevant evidence. This case clearly shows that if a conclusion, however stark, is reached based on a careful review of the evidence and credibility of the witnesses, that is not open to challenge or review in the Court of Appeal.

It is worth remembering that judicial review of a care plan is rarely available as a remedy. In R v Lincolnshire County Council [2006] EWCH 2365 (Admin) it was not in dispute that Z, the child, required care but counsel for the applicant argued that the care plan put forward was insufficient and the Council had no rational reason for adopting a plan that did not fully implement the recommendations arising from the core assessment. The judge rejected this claim as it was shown that the Council had made the plan as a result of careful consideration albeit rejection of some of the key recommendations of the author of the assessment.

Alex Verdan QC
9 Gough Square London